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 is a Journal of Medical Biography.

I publish the Journal of Medical Autobiography. But I have only one subscriber.

A former county attorney in Wyoming is charged with offering to let a 19-year-old client settle her bill for legal services with two sexual liaisons.

They're also talking about possible ethics charges. (Surprise!)

At least the guy seemed to understand the attorney-client privilge, though. (According to the article, the lawyer reassured his client that "this is just between us. I would never say anything to your husband. ... I would never say anything to anybody." Now that's an honorable lawyer.)

Last week I wondered about Instapundit's posting of a photo of a bikini-clad Afghan woman in a beauty pageant under the headline "America 100, Taliban 0!" and the claim that the photo "says it all."

Yesterday the Afghan Supreme Court condemned her participation in the pageant.

I think somebody needs to file a motion for reconsideration pointing out to the Court that the USA won. How could the Court have missed this?

Or else maybe somebody needs to file a motion for reconsideration with Instapundit pointing out that beauty pageants with bikini-clad women might legitimately present a problem in parts of the Muslim world that are *not* under Taliban-like domination.

Don't get me wrong. I like bikinis as much as the next person. But the fact that I do shouldn't mean the whole world has to.

As you can see from a couple of recent posts, I always read all of the comments to my posts to IsThatLegal?, and sometimes people say things so much better than I do that I update the blog with links to their comments.

Sometimes, on the other hand, I get stuff like this (in response to my wondering why toll roads don't couple the toll with a device that issues tickets to people who have arrived at their exit far faster than the speed limit allows):

Very soon technology is going to make peoples lives so miserable that they won't want to get up in the morning. Mueller seems to be one of these short sighted, pin headed, maroons who will hapily help technology to this awful conclusion. I'd like to shove his automated ticketing device up his ass sideways, and any other devices he might be thinking of. Hey Mueller, Why don't you come up with a device to monitor my ass-wipe usage?

I take offense at this. I spell my name "Muller," not "Mueller."

This is amusing. If you buy Chief Justice Rehnquist's book "All the Laws but One: Civil Liberties in Wartime" at amazon, you get a special deal on the book "Terrorism and the Constitution" by ... David Cole.

This is rather like partnering The Bible with this.

Atrios passes along a report from a counselor in a psychiatric triage unit, reporting significant PTSD symptoms among vets returning from Iraq, seemingly related to a sense among them that the war was pointless and that they'd been tools of the Halliburton company.

I'm somewhat skeptical about the reliability of a report such as this.

Note: I'm not a mental health practicioner, and don't even play one on TV. But I've read pretty widely in the area, and I'm married to a shrink.

First, soldiers returning from all wars--even good ones like WWII--show symptoms of PTSD. I'm not aware that PTSD--which, after all, is born and then resides mostly beneath the intellectual surfaces of our minds--is very much impacted by ratiocination about the political and/or moral merits of a particular conflict. Sure, it's got to be more depressing to fight a war that seems pointless to you than one that seems worthwhile, but PTSD arises from trauma and manifests itself largely in the limbic system.

Second, trained counselor should know not to assign overmuch value to the intellectual reports of pyschiatric clients about what's ailing them without first exploring at some length what might lie beneath them.

I'd be curious to know more about Atrios's correspondent, and his or her views on the war. I suspect at least a bit of good old-fashioned projection--of the counselor's views onto his/her patients--and that we should temper our assessment of a report such as this one accordingly.


UPDATE: Here's a lengthy comment from somebody who, unlike me, actually knows what he's talking about.

Instapundit has up a big photo up of a curvey, bikini-clad Afghan woman, walking down a runway with lots of male photographers and onlookers behind her. His caption for the picture is: "America 100, Taliban 0."

Just think! The Afghan woman: from object of simmering male aggression to object of leering male fantasy, all in just two years!

It's good to know what sort of liberation we're fighting for!

I don't know; this seems an odd moment (and not just an odd way) to celebrate the liberation of Afghan women. According to recent reports, the situation of Afghan women--especially in rural (which is to say "most") areas--has changed very little in the last two years. Women still can't work in much of the country, and girls can't be educated. Many women are still stuck at home, and must completely cover themselves when they go out. Forced marriages and rape are still common.

Doesn't sound like Total Victory to me. At least not yet.

UPDATE: Readers' comments sometimes say it better than I do. I agree with Ted K., who said: "Self confidence is important. Sexuality is an important part of personal identity. But I would not have used that headline for that picture."

So today, according to FOX News, Rumsfeld drops in unannounced at a Pentagon press briefing to praise himself for the "leaked" memo. When he saw it in the newspapers, he says, he thought to himself, "Not bad." He himself says he was "not upset" to see the memo in the paper--and this after a "senior Pentagon official" said Rumsfeld had been "livid."

Here's Rumsfeld's account, from the FOX story:

"On Thursday, Rumsfeld said the memo was not supposed to be made public, but a staff member for one of the officials to whom the memo was addressed copied and distributed it for discussion, and one of those copies ended up in the hands of the reporter.

"'I sent it to four people,' Rumsfeld recounted. 'One of the people was out of town and his office received it, thought, "Gee, those are interesting questions; I'll staff it out," circulated it to a number of people, so that by the time the boss got back, he'd have their thoughts. And one of the people that it was circulated to, obviously, thought I'd issued it as a press release, which, I might add, was not the case.'"

Yesterday, Glenn approvingly quoted a blogger who called this episode "treason." (That charge seems to be much in fashion these days.) He also called for the canning and jailing of the "leaker." I know Glenn is busy the next couple of days, but I hope he'll come back to this story and bring it up to date. Maybe even admit to jumping the gun.

Did Rumsfeld want this memo out? You be the judge. But it sure looks that way to me.

Thanks to Liberal Oasis for noting that NBC News Pentagon correspondent Jim Miklaszewski reported last night that "in a Pentagon which normally abhors leaks, officials here appeared eager to confirm this one."

And kudos to Jim Miklaszewski, I might add, for hanging in there with that last name in the TV news biz, and not changing it to something like "Jim Michaels."

The Invisible Adjunct is making lots of sense about college athletics.

I love the analogy to running a studio for supermodels.

Niagara Survivor Cites Depression.

"I honestly thought that it wasn’t worth going on," said the man who took the plunge. "But I can tell you now after hitting the falls I feel that life is worth living."

Wow. And with none of those nasty SSRI side effects.

I'm confused. Everybody seems to be screaming about how this Rumsfeld memo was "leaked." But was it leaked? Or was it simply released?

UPDATE: I'm scanning everything that's being written about this "leak," and I'm still not seeing evidence that it was "leaked." (That evidence may be out there and I'm just missing it.) But what I see in the USA Today story is this: "Three members of Congress who met with Rumsfeld Wednesday morning said the defense secretary gave them copies of the memo and discussed it with them." This is not how you handle a confidential internal memorandum, is it, if you don't want it to see the light of day.

And when the Pentagon spokesman's reaction isn't outrage, but praise for his boss, you have to wonder. (I'm referring to this from USA Today: "Pentagon spokesman Lawrence DiRita declined to comment specifically on the memo, but he said Rumsfeld's style is to "ask penetrating questions" to provoke candid discussion. 'He's trying to keep a sense of urgency alive.'")

I could certainly be wrong, but isn't it possible that we're all falling for a "leak" story here, when actually this dissemination was something that Rumsfeld may have desired?

FURTHER UPDATE: Why, one might reasonably ask, would Rumsfeld want such a memo disseminated? Ultimately I have to leave this to the Kremlinologists, but (a) Rumsfeld has recently been angry at the White House about being removed from the loop on certain decisions related to Iraq, (b) there may be stuff in there that Rumsfeld wants al Qaeda to know top-level people are thinking about, and (c) Rumsfeld might be looking to adjust the way in which he is seen by others, either here or overseas. Look, for example, at what David Tucker is saying: "It shows, if we needed further proof, that Rumsfeld is not prone to complacency. More important than not being complacent, Rumsfeld shows himself in this memo to understand the important issues. He asks all the right questions." If I read that about myself, I might enjoy it.

AND ANOTHER: anonymousblogger, in the comments to this post, notes that the secret, confidential, leaked Rumsfeld memo is now available on the Pentagon's website. Do we get a retraction yet from the bloggers who were shouting "treason!" earlier today?

AND ANOTHER: Fox is reporting that Rumsfeld was "livid" that his memo made it onto the front pages. Meanwhile the Defense department has a press release out on its website. Nowhere does the word "leak" appear. Nowhere there (or anywhere else) do we see anyone--from Rumsfeld on down using the word "leak" (or any word like it) or asking for an investigation of how the memo got out. The most we see, in the midst of the DoD's defense of Rumsfeld's comments, is the Pentagon spokesman's assertion that he was "surprised" by the USA Today story.

Hmmm. Nobody's saying the document was leaked. Nobody at the Pentagon's wondering who let it go and why, or asking for an investigation.

But apparently I'm the one who is doing the spinning.

Ed Cone is up in Vermont talking to the Howard Dean people today.

Look for some interesting stuff afterwards at edcone.com.

From now on, you may address me only as “Your Honor.” (“Your Most Exalted Worthiness” would also do, I suppose.) That’s because I’m now a hearing officer for the Town of Chapel Hill’s SafeLight program, which is a system of cameras at intersections that take pictures of people who are running red lights. I’m one of three people to whom aggrieved alleged violators take their appeals.

Here’s a description of how the technology works.

This program brings to mind a question that I have long pondered. It arises for me specifically in the context of the NJ Turnpike, but it pertains to any highway that gives you a toll coupon when you enter the highway and then collects it from you (with a payment) when you leave the highway.

Highways like that strike me as huge potential revenue sources for the states that operate them. Why? Because they offer the possibility of entirely mechanized enforcement of the speeding laws.

Let’s say the distance between exit 1 and exit 5 is 65 miles, and the posted speed limit is 65 miles per hour over that entire stretch of highway. If a person is issued a time-stamped entry coupon at Exit 1 at noon and arrives at Exit 5 before 1:00, he has been speeding. Period.

Why not issue him a speeding ticket at exit 5 when he pays his toll and leaves the highway? This would be a superb revenue source for the state, and it would get people to stop speeding far more effectively (and cheaply) than sporadic enforcement by state troopers.

(And by the way, the state would not have to sit its ticketing threshold at the actual posted speed limit. It could set it for, say, three or four miles above the posted speed limit. Or more.)

I can think of two main objections to this idea. The first is an objection about underenforcement. This system will not catch the person who goes at 80 miles per hour for a half hour, stops at a rest area to grab a snack and go to the bathroom, and then goes at 80 the rest of the way to Exit 5. Nor will it catch the person who does 80 the entire way and then sits in a long line of rush-hour traffic at the tollbooths at Exit 5. But these problems don’t really trouble me. All laws are underenforced, and all methods of enforcement are underinclusive. That may be troublesome, but it’s no more troublesome here than anywhere else.

The second objection is much more interesting. We are accustomed to the idea that in order to sanction you in some way, the state needs to be able to prove that you did something wrong at a specific place and time. The most this system could do is attest that you did something wrong at some undefined place and time along a particular route and in a particular timeframe. I’m not troubled much by this either. In many places, including New Jersey, speeding is not a crime, but just a petty offense or other “violation.” For that sort of thing, I think I’d be willing to rely on Newtonian physics for sufficient proof. I confess that there is nonetheless something a bit uncomfortable—in a way I can’t quite describe—about sanctioning conduct that was not directly witnessed. But people are convicted of all manner of crimes, even very serious ones, on the basis of circumstantial evidence, in situations where nobody witnessed the crime but a factfinder infers that it must have happened at a particular time and place. So this probably isn’t so different from that.

Thoughts?

UPDATE: This idea may come to be relevant right here in North Carolina. I note in this morning's paper that NC is asking the feds for permission to charge tolls on I-95.

FURTHER UPDATE: Damn, I'm good. Turns out that my proposal makes regular appearances on calculus exams. (Look at question 15.) Thanks to Ken Hirsch for the pointer.

So we are learning, yet again, that Big Law Firm Culture is stupid and abusive.

These sorts of stories are legion. And they accurately describe some--but of course not all--of Big Firm life.

One of the things they don't describe, though, is the stupidity of what often goes on not at the edges of what lawyers do (like ordering in sushi for dinner), but at the core. Anyone who has ever drafted a legal document for review up the ladder of a law firm's hierarchy will know what Im talking about. It can often be writing-by-committee at its very worst.

I remember one such instance at the New York firm where I worked. I was on an internal committee, charged with the responsibility of revising the internal evaluation forms that the firm used to evaluate lawyers' work. The high-mid-level lawyer who was running the committee asked me to prepare a cover memo for the draft evaluation form that we had prepared and were about to circulate to the firm's lawyers. I wrote a simple memo, saying something like "attached is the evaluation form that the committee has prepared for your consideration. Please review it and provide any comments to the committee as soon as you can, but in no event later than October 15, 1991." Or something like that. I gave it to the high-mid-level lawyer and an hour later it came back to me, dripping in red ink, with nearly every word changed. My favorite change was at the end: he had taken my "but in no event later than October 15, 1991," and changed it to "but in any event no later than October 15, 1991."

In my experience, much of what passed for "review and revision" of lawyers' writing was just the lawyerly equivalent of territory-marking urination.

Muhammad is Granted Right to Represent Self

Too bad Colin Ferguson was unavailable.

A year late, my wife and I yesterday went on a hot air balloon ride to celebrate our 40th birthdays. (The ride was a gift from our brothers and their wives.)

First they blew up the balloon. It was amazing how quickly the enormous thing filled with air, just from a big fan.





A propane flame -- and I mean a big propane flame -- makes the balloon rise. An enormous propane flame in close proximity to the nylon balloon that you're suspended from, and the wicker and rattan basket you're suspended in, does not inspire confidence. Plus, when the propane is on, it sounds rather like a high-speed train emerging from a tunnel and rushing past you.






We went up to about 5,200 feet straightaway, and while it was very pretty up there, I felt pretty queasy. Heights have never been my favorite. But after just a few minutes up there, he brought us back down to a few hundred feet above the treetops, and at that level, it was just gorgeous and enjoyable. We flew over the Tar River, which enabled me to catch this shot of the balloon reflected in the water.




We landed in somebody's field, and were met there by the chaser van. (Note to Torts teachers: this balloon-landing scenario is rife with Exam Question possibilities! We were trespassers, forced by the law of gravity into landing somewhere (although not necessarily where we chose to land), landing a very attractive nuisance onto somebody's property from out of the sky. Exam questions don't get much better than that.)

All in all, it was beautiful and fun -- an experience to remember. We flew with Above and Beyond. Their phone number is 919.781.3433. Nice people.

The University of North Carolina at Chapel Hill has been in a financial free-fall for quite a while. Programs of all sorts have been slashed and eliminated. Faculty and staff have gone more or less without raises for a couple of years. Outstanding people have left the school for better offers elsewhere.

Today the Board of Trustees approved a contract for new basketball coach Roy Williams. It pays him $632,300 in year one, and a lot more than that in subsequent years.

May I propose a bumper sticker?



UPDATE: Here's what Chair of the Faculty Judith Wegner said today, in the context of a message welcoming and extending support to Coach Williams:

"I think it is extraordinarily problematic that when non-academic parts of the University--in this instance the men’s basketball program--can and do provide competitive salary levels while core aspects of our academic program are unable to do so. (Even in the athletics context, moreover, we must also remain alert to the obligations imposed by Title IX and the need for fair salaries for those involved in women’s sports.)

As Provost Shelton explained during our most recent Faculty Council meeting, we are increasingly unable to retain faculty who receive offers from elsewhere, and effectively tell distinguished faculty members that they must secure an external offer and have one foot out the door before they receive salary adjustments at home. Our lesser-paid staff members are even more disadvantaged. I am concerned, too, for the inequities that creep in as a result of salary compression and uneven burdens that arise when attrition occurs and vacancies are left unfilled."

Do I wish our new coach and his team well? Yes, I do.

Do I think the university has got its priorities wrong? Yes, I do.

FURTHER UPDATE: Before people wax too eloquent about what a money-maker the basketball program is, let's recall that the UNC athletics department is facing mounting deficits.

ONE LAST UPDATE: No less a personage than former UNC President Bill Friday is questioning the Roy Williams compensation package.

My friend and colleague Joe Kennedy has an op-ed in today's Raleigh News & Observer arguing that a recent 1st-degree murder guilty verdict in a local high-profile case has the dangerous effect of watering down laypeople's appreciation of the "reasonable doubt" standard. His point is certainly worth thinking about.

Joe watched the trial far more carefully than I did--indeed, far more carefully than most did, as he was a commentator on the case both on local TV and nationally on Court TV. So I defer to Joe's assessment of whether the state's case really did reach the level where a reasonable jury could find evidence of premeditation beyond a reasonable doubt. But I'm skeptical on a several larger points. (1) I'm not persuaded that lay understanding of the "reasonable doubt" standard can really be significantly affected by a single high-profile verdict such as this one. (2) If lay understanding of the "reasonable doubt" standard is significantly affected by verdicts in high-profile cases, then I'd want more evidence before concluding that the net impact of all high-profile murder verdicts on jurors is to weaken the reasonable doubt standard. And most of all, (3) I think that there are all sorts of pressures on jurors in high profile cases (especially murder cases) to take their work--and the legal standards they're given--very seriously, and not just to fall back in their thinking and their deliberations on an abstract atmospheric understanding of the "reasonable doubt" standard that they've taken in from living in society.

Still, my hesitations aside, Joe's op-ed is very thought-provoking. Read it.

The key word in the headline to this news story out of Wyoming is "apparently":

"Doctor Who Staged Death Apparently Commits Suicide."

I went out yesterday and got the technology to transfer all of our old vinyl LPs to CD so that we can actually listen to them again: an Audio-Technica AT-PL50 turntable with a built-in pre-amp to play the records, and Microsoft Plus! Digital Media Edition to record them.

It's a snap. And the music sounds great. And once you've got an album on CD, you don't have to get up and flip the record over.

To make the experience authentic, I had to grab an LP that really captured the vinyl experience. The box with E.L.O.'s "Out of the Blue" in it was inaccessible in the basement, so I had to content myself with "M.F. Horn, Volume 1" by Maynard Ferguson.

I mostly love the New York Times. But what I hate about it, I really hate.

The magazine section, for example. I would not have thought it possible to publish a magazine 52 times a year that is that relentlessly, grindingly, mind-numbingly boring. Woody Allen had it right in Manhattan: the only thing it's good for is the lingerie ads.

But this story from today's paper is an even better example. Read it. Its elitism will take your breath away.

Extra points for anyone who knows what it means to be "cheerfully uxurious."

Man Trains Dog to Perform Nazi Salute

And it's a German Shepherd, no less.

The Supreme Court yesterday granted certiorari in a case out of the Eighth Circuit involving a federal bribery statute. The law in question makes it illegal for a state employee of an agency that gets more than $10,000 in federal funding to accept a bribe in an amount greater than $5,000.

The case is apparently getting litigated as a Spending Clause issue, so the issue before the Court is whether the law exceeds the Congress's Spending Clause powers in that it doesn't require that the $5,000 bribe relate in any way to the $10,000 in federal funding.

I am at a loss. Congress would unquestionably have the power, under the Commerce Clause, to make it illegal to pay a money bribe in an amount greater than $5,000 to anyone. That would just be a prohibition of a money transaction--something that would be OK even under the new rules of the federalism game that the Court has been giving us. (Think of it this way: wouldn't Congress have the power to pass a law that made it illegal to sell more than $5,000 worth of cocaine? More than $5,000 worth of tobacco? I'm not asking whether it would be wise for Congress to pass such a law--just whether it would have the power to do so.)

So if it has that power, then why should we care that it has chosen to restrict the scope of the statute to situations where the victim agency receives more than $10,000 in federal funding?

The buzz is (scroll down to Greenhouse's description of this case) that this might be the case where the federalism revolution reaches the Spending Clause. But I don't see how, or why.

The University of North Carolina at Chapel Hill has been completely without email since mid-morning yesterday. We are told it was a hardware problem.

An outage of a few hours was a big inconvenience. An outage of nearly a day approaches disaster.

Obviously there was there no redundancy in the system to prevent this. Why not?

I finally have a moment to blog about what was, for me at least, one of the highlights of last Friday's conference: the lunchtime keynote address by Mike Chertoff. Chertoff is now a judge of the US Court of Appeals for the Third Circuit, but back on 9/11/01 (and up until about 3 months ago) he was the Chief of the Justice Department's Criminal Division. This means that he was the guy who oversaw the entire law enforcement response to the 9/11 attacks. I'd venture to say that he is, for that reason, one of the most influential Assistant Attorneys General in the history of the Department.

I should say first off that Chertoff has not yet learned to talk like a judge--by which I mean that he spoke candidly, directly, and revealingly, without retreating behind a screen of concerns about impartiality. His talk sparkled. His answers to questions were honest and responsive.

He devoted the first part of his talk to sketching a view of the task he faced on 9/11 and in the days after. One of the lasting contributions of his talk, I think, was his frank depiction of the relative ignorance in which he and the others at DOJ were forced to operate. Nobody at DOJ had no way of knowing whether the WTC and Pentagon attacks were just the prelude to an even larger disaster. What he did know, though, was this: (a) the enemy had masqueraded as friendly visitors, (b) the enemy had to have had a complicit (or perhaps an innocent) support network--people who'd provided shelter, money, sustenance, and so on, and (c) there was no way to distinguish between the many well-meaning visitors to the USA and the few who meant us harm. "It was not just like looking for a needle in a haystack," he said. "It was like looking in a haystack for a needle disguised as a stalk of hay."

The limited information they had suggested a realistic possibility of further strikes. (And, he pointed out, it still does.)

People who make decisions under this sort of pressure, and in this state of imperfect information, he noted, do not have the benefit of hindsight. They must act.

He said that he is entirely prepared to accept history's judgment of how he acted. And, interestingly, he reported that he and others were "accutely aware" of the eventual judgment of history, even as he was acting in those first few days. But he unapologetically defended most of what DOJ ultimately did.

He said that the early efforts after 9/11 were organized around 3 principles: 1. Enhancing intelligence in order to predict another attack. 2. Taking steps to identify those who might stage such an attack. 3. Disrupting networks from which al Qaeda drew support, even innocently-offered support.

How well, he then wondered aloud, did DOJ do?

Quite well, he said, and, most importantly, far better than earlier Justice Departments did in similar crises. He said that he acted with awareness of the excesses of the past--Lincoln's suspension of habeas, the Palmer Raids, the Japanese American internment--and was confident (and proud) that nothing remotely approaching those excesses happened on his watch.

Toward the end of his talk, he ticked off a list of features that showed the measured nature of the DOJ response: (1) there was, he said, no government suppression of dissent or criticism; (2) the PATRIOT Act, notwithstanding all of the protests against it, did not purport to push law beyond existing 4th Amendment doctrine. Even the much-reviled sneak-and-peak warrants, he asserted, had the endorsement of well-established 4th Amendment precedent; (3) military commissions have not yet been used, do not apply to citizens, and admit of the possibility of limited habeas corpus review (which FDR's WWII commissions didn't); (4) there was no evacuation or detention of citizens or aliens on the unadorned basis of ethnicity; (5) all detentions had a lawful basis; (6) all people detained as enemy combatants were arrested in battle, and there was no detention that approached the magnitude of the detentions during the Civil War.

If Chertoff doubted the legality of any single post-9/11 action, it was the detention as a combatant of an American citizen on US soil. On this issue, he said, questions nag: How is an enemy combatant to be defined? What should the role of judicial review be? How long may detention last?

Chertoff's overall conclusion was that the actions of DOJ after 9/11 reflected a careful awareness of the excesses of history, and a genuine (and successful) attempt to avoid them. (This is quite similar to a point I myself made back in February of 2002, just 5 months after the 9/11 attacks.)

As I said, it was a riveting account. I would have liked to hear a couple of additional things. I would have liked a more personal, dare I say even emotional, account of what it felt like to be making decisions on 9/11/01 and 9/12/01 in this world of horrible security threats and horribly imperfect information. And I also would have liked to hear about a plan or proposal that got floated internally at DOJ in those early days, and that got shot down on the basis that it was too extreme or too much of a repetition of an old, Japanese American internment-style mistake.

I was also disturbed to see that Chertoff's sole source for his account (and seemingly his knowledge) of American national security/civil liberties history is the Chief Justice's quite lame book on the subject. (It's called All The Laws But One.) In a critical review of the Chief Justice's book that I published in the U of Chicago Law Review a few years ago, I worried that in a future crisis, government officials would turn to Rehnquist's book as their source. It looks as though on that score, at least as to Mike Chertoff, I was right. That's a worrisome thing, because the book is the work of an armchair historian, and is a radically incomplete (and one-sided) account of the history.

All in all, though, it was an extraordinarily lucid and powerful presentation.

And last but not least, Bob Strassfeld from Case Western talking about how loyalty was framed in public discourse during Vietnam. His focus is not so much on law as on other mechanisms for enforcing loyalty and for discouraging disloyal speech.

There were very few "classic" prosecutions for disloyal speech during the Vietnam War. Young men who resisted the draft or encouraged others to resist were not generally prosecuted for that; they were instead bumped up on the list for the draft, had the exemptions or deferments taken from them, and were generally sped along toward the draft. The courts eventually said that this was impermissible.

More typically, laws unrelated to speech were used to punish those who spoke against the war. Conspiracies of various sorts were the prosecutors' darlings (the Chicago 7, etc.), and even though those cases mostly ended in acquittals, they were still discouraging of free speech.

Talk about disloyalty became an important part of the public discourse of the day. Several themes emerged in the criticism of the anti-war movement: (1) Anti-war speech was encouraging Hanoi and giving them the false impression that the American public didn't have the stomach for the war. This, it was argued, was keeping Hanoi going when they might otherwise have folded. (2) Anti-war movement was a bunch of effete men who are afraid to prove their manhood on the battlefield and are instead proving it through protest. (3) Anti-war speech was demoralizing to American troops, and even causing their deaths.

Unfortunately, time was short at this point in the day, and Strassfeld ran out of time to make many of his larger points. His paper will, however, be published in the law review symposium issue, so you'll be able to find it there!

OK, folks, that was the symposium. Thanks for reading.

The penultimate speaker is Beth Hillman from Rutgers-Camden. She is focusing on a fascinating topic: loyalty in the specific legal context of the military.

She begins by pointing out that in the military setting, stuff that doesn't seem disloyal or illegal (such as quitting your job) is illegal and potential disloyal.

Her subject is incredible: American prisoners of war who returned to the United States and then found themselves prosecuted for disloyalty. There were 7,000 American POWs in Korea. 3,000 of them died. (Wow.) Only 4,000 returned. These were, in other words, horrifying conditions. Those who cooperated with interrogations got better treatment in camp.

Fourteen POWs were prosecuted; eleven were convicted. So why were the prosecuted after being forced to endure the deprivation, indoctrination, and suffering that they'd had in the camps?

One popular explanation is that these people had been brainwashed. But Hillman says that this is a strategy of displacing responsibility for the "weak" behavior of these soldiers who cooperated.

Another explanation is that these 14 POWs had cooperated more fully and visibly than others.

But Hillman's larger claim is that these soldiers were sacrifical lambs, used by the military to shore up worries about whether American soldiers were tough enough for the conditions they found themselves in--something that was a grave concern for the unprepared American military that went into Korea.

Next up is Michael Parrish, a history professor from UC San Diego. He'll be talking about the work of Joe Rauh in defending those accused of disloyalty in the early Cold War.

Rauh graduated from Harvard Law in 1935 and went straight into the New Deal. He was Cardozo's last law clerk and Felix Frankfurter's first. He drafted FDR's Executive Order that prohibited race and national origin discrimination in the awarding of federal contracts.

During the Cold War, his firm fought against HUAC's efforts to force alleged communists to divulge their entire backgrounds. Rauh's three most famous clients: Lillian Hellman, the famous playwright; Arthur Miller; and John Watkins, who was a labor leader for the UAW.

Hellman did not want to go to prison, but she did not want to cooperate. So she took the Fifth Amendment before the committee. But at the moment that she took the Fifth, Rauh cleverly distributed a letter to the press in the room, in which she criticized the committee and announced that she refused to rat on people. So the tone of the press coverage was that Hellman was defying the committee, when in fact she was really just taking the Fifth.

Arthur Miller refused to cooperate with the committee, was held in contempt.

The major victory was in the third case: Watkins v. United States. The Court held that there had to be a clear legislative purpose to the HUAC's inquiries; it could not simply expose people's pasts for the purposes of humiliation. This was Rauh's central achievement in this area.

Rauh also played a major role in trying to change the government's loyalty and security program, which required an FBI investigation of loyalty for every federal employee as to whom even an anonymous allegation of disloyalty had been made. An employee could be terminated if the investigation revealed "sympathetic association" with an entity on a list of suspect organizations and individuals compiled by the Attorney General.

13,000 were investigated under this program; 700 were fired, all on this "sympathetic association" theory. Rauh represented lots of important people in the context of these loyalty-security investigations, and scored some remarkable successes. He also scored an important procedural victory in these cases, establishing the right of a party at one of these hearings to confront his accusers and have access to FBI materials by which the charge of disloyalty was initiated and substantiated.

Parrish's largest point is that we cannot trust judges to protect civil liberties in times of crisis; the only people we can really trust are a handful of valiant lawyers.

I'm back. I moderated a panel about loyalty issues in the Early Republic and at Reconstruction, and participated in a panel about loyalty in WWI and WWII. At lunch, there was a dynamite keynote speech by Michael Chertoff, now a US Court of Appeals judge, but from 2001 to 2003 the Chief of the Justice Department's Criminal Division. His talk was a spirited, blunt, and candid defense of the Justice Department's post-9/11 antiterrorism strategies. It was, I thought, electifying. I took careful notes and will post about it later, or over the weekend.

The first speaker on this second afternoon panell is historian Ellen Schrecker of Yeshiva, one of the leading historians of the McCarthy era. She's offering an overview of the espionage that was committed on behalf of the Soviet Union during the 1940s.

About a hundred people were Soviet spies during WWII. What were they doing? How did they justify it to themselves? That's what she's going to talk about.

These spies, Schrecker asserts, did not successfully subvert American policy. They were too low-ranking to do that. Their success was simply in passing information; as a result of their efforts the Soviets' development of the bomb was speeded up by two years. (I confess that I'm unclear on how you distinguish "subverting American policy" from "passing information.") They also got the Soviets political gossip, which the Soviets had a real thirst for.

That's what they did. What did they think they were doing? Did they all know they were actually working for the KGB? Not all, says Schrecker. Some thought they were just working for the American Communist Party; some thought they were working for the Soviet Union without realizing that it was specifically KGB. But many knew that it was the KGB. And most were motivated by ideology. They were devoted to communist ideals. They felt that this was a unique moment: This was WWII; Hitler was menacing the world; and the Soviet Union was crucial to the defeat of Nazism specifically and fascism generally. They felt that reactionaries in the American government were impeding the flow of information that was vital for the Soviet Union in that fight. Passing information about the bomb, she concedes, is hard to square on that theory. As to this, Schrecker asserts, (a) the spies believed that no country should have a monopoly on the bomb, and (b) many leading scientists themselves felt that no one country should have the bomb.

But still, many who felt that way about the bomb did not commit espionage. So why did they decide to commit espionage? Here, she says, the historian's expertise begins to fade: mostly it's psychological factors--anti-authoritarianism, stubbornness, and so on.

An amusing tidbit: Harry Fuchs's first KGB assignment was to get the technology for how to keep ice cream cold. (Apparently it was the practice of the KGB to give new recruits inocuous assignments first.)

OK, folks, I'm moderating the next panel, so obviously I can't blog it. More later...

David Cole from Georgetown is up now.

He is talking about something that should have gotten a lot more attention when it was raised: a provision of the Patriot II draft that would strip citizenship from people who make it onto the Justice Department's list of terrorist organizations. Not surprisingly, David's no fan of the provision! It allows the government to define the terms about who the enemy is. It defines disloyalty by reference to any group the administration disfavors. Of course, citizenship is a constitutional right, so the government can't take it from you against your will, David argues. This is why the provision was written as a presumptive citizenship-stripping provision, not an outright deprivation of the right. The purpose of the provision was not actually to expatriate people; it was to draw a symbolic line between "us" and "them." And that, says David, is dangerous.

Today, it is "guilt by association" that serves the purpose that was once served by treason law. One form of guilt by association is guilt by political affiliation, which is the heir to McCarthy and the blacklist. Since 9/11, the government has been compiling lists, without any criteria, of organizations that no American can support in any way for any purpose. There's no requirement that the government prove any sort of nexus to criminal activity.

Another form of guilt by association is guilt by ethnic association. In this sense, today's programs are the heir of the Japanese American internment. We have required over 100,000 people to register because they are from Arab and Muslim countries; we have called in 8,000 aliens for "voluntary" interviews; we have held hundreds incommunicado.

These two strategies of guilt accomplish three goals:

1. These measures facilitate are geared toward prevention of terrorism, but we haven't yet been able to figure out how to predict the future. So the government is enacting broad-based programs of suspicion rather than focusing on individual guilt.
2. These measures facilitate the drawing of lines between "us" and "them."
3. The measures enforce loyalty and deter dissent by associating dissent with the enemy. David here (appropriately) refers to John Ashcroft's horrifying congressional comments equating criticism with treasoning.

How have these strategies fared?, David asks. Not well.
1. No al Qaeda people were discovered from any of the interviewing and incarcerating. All that has happened is that we've pissed off the rest of the world.
2. The citizenship-stripping provision shows how the line between citizen and alien is getting corroded and is turning "us" into "them" when we engage in dissent. Aliens are always targeted first, and then the program spreads to citizens.
3. On its strategy of enforcing loyalty, the Administration has been least successful. Ashcroft's congressional testimony has been reviled. Ashcroft's tour to defend the PATRIOT Act backfired. Lots of jurisdictions around the country have passed ordinances condemning the excesses of the PATRIOT Act.

What does this all show? Our government is trying to draw lines between "us" and "them," not through the legitimate enforcement of treason law, but through less direct methods.
Enforcing loyalty is a very difficult task in the United States, rife with danger. Does liberty consist in the freedom to disagree?

Bob Turner of the University of Virginia speaks next. His first topic -- or target? -- is Jane Fonda. He is quoting from her 1972 broadcasts for Radio Hanoi, in which she urged American servicemen that their superiors were war criminals. Turner thinks it's not a close case: this was treason, plain and simple.

Next comes Philip Agee, a former CIA agent who published a book that included a list of 250 CIA officers. He later outed "thousands" of supposed CIA operatives. In 1999, a former KGB official wrote a book naming Agee as a valuable KGB agent during the time he was "outing" all of the CIA people. Turner's verdict: Agee guilty of treason.

Next, John Walker Lindh. Here, Turner does not really think that treason was involved, although he doesn't say just why.

Now he turns to the American "human shields" in Iraq. Turner thinks they were not traitors; they lacked the requisite intent to harm the United States. Similarly with Peter Arnett: he may have given aid and comfort to the Iraqis, but he lacked the requisite intent to harm the United States.

Turner now turns to the Logan Act, a statute passed early in the republic to respond to a problem that arose when an American went abroad and usurped executive authority by interfering with negotiations with a foreign government. Because these situations arise when we are not at war, they don't involve treason. But they were, in the views of the early generations, "high crimes." The First Amendment, Turner asserts, protects people who go abroad and gripe about American policy. But it should not protect people who attempt to assert themselves into negotations in a way that undermines American foreign policy or confuses other governments about who speaks for the nation.

This means, Turner says, that Jesse Jackson has violated the Logan Act. (What, I wonder, does he think of Jimmy Carter?!?)

The next paper is a co-authored paper by Marion Crain of UNC Law School and Ken Matheny of the Social Security Administration. They are adding to the discussion on law and loyalty by focusing on how dissent in the workplace has always been construed as employee disloyalty, and indeed disloyalty analogous to disloyalty to nation. This, it seems to me, is an interesting line of thought. Ken Matheny has ticked off a list of major labor insurrections in the nineteenth and early twentieth century that got framed--not just in the press, and not just by employers, but by the government itself--as subversion and disloyalty. Why is this interesting? George Fletcher's leading book on law and loyalty sets contract-based loyalties aside as "tangential" to the core meaning of loyalty. That seemed wrong to me when I read the book, and this listing of historical episodes persuades me further that a big part of our understanding of loyalty derives from our understanding of the obligations that arise in contractual relationships.

Marion Crain now picks up where Matheny left off. What it means to be a loyal American worker has been quite different from the perspective of workers and from the perspective of the owning/ruling classes. And it is the owning/ruling classes' vision of workplace loyalty that has prevailed. That vision sees the work relationship as individual, not collective, and says that the solution to employee dissatisfaction is worker exit, not worker voice. The workers' vision, on the other hand, sees the work relationship as collective, not individual, and says that the solution to employee dissatisfaction should be worker voice, not worker exit.

Why, Marion asks, should we care which of those visions prevails in the workplace? Because we spend our lives working. We learn how to behave in the workplace. "You become who you have lunch with," as she put it. The workplace therefore becomes a model for other sorts of loyalties, including national loyalties.

Does the triumph of exit over voice in the workplace undermine the way we, as citizens, understand our obligations and opportunities? What does workplace law teach us about how to behave as citizens?

Here I am at the Carolina Club on the UNC Campus, blogging from the back of the room at the UNC Law Review's symposium on Law, Loyalty, and Treason.

George Fletcher of Columbia Law School is arguing that the crime of treason has become a dead letter -- conceptually incoherent -- because it is essentially a feudal crime that requires a specific relationship between the citizen and a "personalized" sovereign. This is out of place in the modern world because we do not understand or cultivate the notion of national identity. Treason, he argues, is impossible in a culture that embraces multiculturalism. What's afoot today in the world, Fletcher says, is an effort to redefine treason. There are, he says, two models: The French model--treason should be replaced by espionage, which is a crime not based in any way on loyalty. The German model--abolish the requirement of nationality, and make treason applicable to people all over the world: any person, anywhere, who tries to undermine the German Constitution is guilty of treason. Fletcher ended his talk by distinguishing (in a way that I found unpersuasive) between loyalty, which he says is grounded in the state's formal law, and patriotism, which he says is about breaking established law to be true to the "true" nation.

Technology permitting, I'm going to be blogging tomorrow from the UNC Law Review's symposium on Law, Loyalty, and Treason.

If you ever need persuading that American Muslims are right to feel that they are the victims of ignorant and dangerous stereotyping, check out this blog post.

Link courtesy of Eugene Volokh, who either didn't notice the offensiveness of the post, or chose not to comment on it.

UPDATE: Amy Alkon, the author of the joke, commented here as follows: "It's my site that's posted on, and I think the comments above make my case pretty well. Obviously, you're a little unclear on the meaning of racism -- which is not what's reflected in the posting on my blog -- merely editorializing via a little black humor on a few facts of life in the repressive, hate-filled, hate-promoting, anti-Semitic republic of Saudi Arabia."

I'm not unclear at all on the meaning of racism. I understand, and (especially as a Jew) detest the vicious anti-semitism of the Wahhabi Saudi regime. I have not problem at all with jokes at that regime's expense.

What I do have a problem with is making that joke by triangulating off of the millions and millions of entirely innocent Muslims whose cultural practices and attire the joke links with terrorism. The practices the joke links with terrorism are not just Saudi practices; they are practices of Muslims the world over, including many American Muslims. The dress of that doll is not just the dress of Wahhabi Muslims; it is the dress of millions and millions of Muslims worldwide. And the joke (which, incidentally, itself speaks not just of Saudis but of people in Saudi Arabia and other Middle Eastern countries) links that dress with suicide bombing.

The joke was working a stereotype, Amy. But it's not a stereotype of Saudis; it's a stereotype of Muslims.

FURTHER UPDATE: I note, too, that Eugene Volokh has explained his views on the joke in a characteristically measured and thoughtful way.

Siegried: Tiger Wanted to Help Roy.

Roy? Your perspective?

I see that I have company in the UNC prof blogosphere. Welcome!

Who would have expected that there would be two tiger stories in the same weekend?

Over at discourse.net, Michael mocks the idea of facilitator-led retreats for law faculties. He does it gently, and seems open to the idea that something positive might come from the exercise, but his bottom line is, I would say, pessimistic.

Michael's reaction to his faculty's impending retreat is typical. People usually dread these events.

I, on the other hand, love retreats. I am in a tiny minority, I know: I have suggested it for both faculties I've been on, and in both places the suggestion went up like a lead balloon. Usually somebody derisively suggests that we all join hands and sing "Kumbaya," everyone chortles, and we move on to the next item of business.

Admittedly, an unplanned retreat is likely to be unproductive, and a retreat by a faculty with significant interpersonal troubles is only going to have a shot at moving things forward if it's led by a facilitator (rather than a member of the faculty, even someone who is seen as a saint by all factions).

But what's the objection to a well-planned and facilitated retreat?

Michael suspects that "perhaps because academia tends to attract the lone wolf personality type, most of us are not necessarily at our best when working collaboratively in large groups."

That's just it, though, isn't it? If a faculty is having widely shared problems or is torn by widely shared disagreement about where the problems lie, or seems unable to coalesce around any sense of institutional identity or mission, then this "inability to work collarboratively in large groups" may be an important part of what needs attention. I think most people, like Michael, simply take the "lone wolf" phenomenon as unalterable, and then get increasingly dispirited and frustrated when the faculty as a whole seems to be going in circles or riven by discord. If a retreat can either (a) help a few important people at the "center" of a faculty gather a critical number of allies, and thereby break a logjam, or (b) smoke out the people whose intransigence is holding back the group as a whole, then I say that's worth the effort, even if it makes people intermittently uncomfortable.

Next time you're at a meeting when a workplace retreat is proposed, pay careful attention to who reacts how. If your experience is anything like mine, you'll see that those who speak most passionately against the idea are those who have the most to lose by exposing themselves to public dialogue. These are usually either the lonest and loudest of the lone wolves, who are accustomed to just ignoring everyone else and getting their way that way, or the "backroom politics" people who are accustomed to getting their way on matters of general faculty concern by quietly working the corridors in one-on-one, closed-door conversations. Those are exactly the folks who are likeliest to be hindering a faculty's sense of collective identity and purpose. (Just to be clear, I'm not suggesting that Michael falls into either of these two categories; I'm not a colleague of his and have no idea what sort of institutional player he is.)

It is common for us egghead law professors to get our tassles in a tie over a reporter's assertion that the Supreme Court "ruled" in a case when all it did was deny a petition for certiorari.

Today in the New York Times, Neil Lewis produced a new and interesting variant on this type of reporting. Writing about cert denials in two criminal cases in which the state had won in the court below, Lewis explained that "although [the Court] did not rule directly on the Arkansas and South Carolina cases, both represent an acceptance of expansions of state authority."

There's ambiguity in this: Lewis may simply mean that the lower court cases (and not the cert denials) represented an acceptance of expansions of state authority. But the headline of the piece (which, it now occurse to me, Lewis probably didn't write) is "Court Begins New Term by Letting State Authority Expand." That's pretty unambiguous, and I think it's wrong. Yes, to the extent that the lower court opinions "expanded state authority" (whatever that means here), the Court did start the Term by "letting" (in the sense of not stopping) state authority expand. But that's not what the headline is really implying, is it? It's implying that, as a result of these cert denials, national law now recognizes more expansive state authority than it did before the Court denied cert. And that's not really right. Is it?

Eugene Volokh responds thoughtfully to the question Ed Cone raised and I repeated here yesterday. And so does Michael Froomkin.

I think Eugene and Michael are right -- about Eugene's blog. I should have made that clear when I joined in Ed Cone's question. The Conspiracy does not present itself in a way that would fairly open it up for criticism when it doesn't "cover" any particular story. At least to my eyes. Blogging still is just Eugene's hobby.

On the other hand, I don't think what Eugene says about the Conspiracy really applies to Instapundit anymore. Blogging may have just been a hobby for Glenn Reynolds a while back, but (to quote Joseph Heller) Something Happened, and now his blog doesn't seem like just a hobby anymore. To me. Maybe you see it differently.

(And incidentally, I don't read Eugene to be saying anything about Instapundit; I read him to be commenting only on his own blogging. Michael, for his part, makes clear that he's not talking about Instapundit.)

There's a crossfire of sorts between Ed Cone (on one side) and Eugene Volokh and Glenn Reynolds (on the other) about the responsibilities that come along with Big Blogging.

I think Ed has this exactly right.

And for what it's worth, I'd note that the issue they're debating is essentially identical to the issue I raised a couple of weeks ago about Glenn's editorial decision to have a photo of one of the WTC jumpers up on Instapundit all day on 9/11/03. The precise subjects of Ed's and my criticism are, of course, different; Ed is faulting them for the editorial judgment to omit something, whereas I faulted Glenn for the editorial judgment to include something. But the issue behind both criticisms is the same, and Ed, as he is wont to do, put it well today: "Do hobbyists have responsibilities when playing with powerful toys like, say, guns, cars, or journalism?"

David Bernstein, arguing that conservatives are victims of discrimination in the law school faculty hiring market, diplomatically concealed the name of the school where he felt he was treated unfairly. And, again diplomatically, he didn't mention anything about a nasty tone to his interrogation.

But then fellow Volohkonspirator Randy Barnett more or less outed Boston University as the culprit by volunteering that he'd been present for the event. (Randy has been at BU since 1993, and David reports that his bad experience happened "almost a decade ago." Randy's bio mentions a stint in an unnamed year at Harvard, which also fits David's description of a "Northeastern law school with an excellent faculty", so it is technicallypossible that David's bad experiences happened at Harvard. I doubt this, though, because Randy would have been a visitor at Harvard, and typically visitors do not attend job talks.) And Randy elaborated, adding something about "the venomous tone of the 'questions' directed by some senior faculty--especially one in particular--during his talk."

I think David and Randy are both right on the merits: at most law schools today it is harder for an openly identified ideological conservative than for an openly identified ideological liberal to get hired.

But I confess that I don't see the point, or the wisdom, in publicizing details of a faculty's hiring (or other) dynamics on a blog in a way that identifies the school. Surely Randy's posting this negative story about his colleagues is not going to make them any likelier to treat conservative candidates more fairly, and I can't imagine that the post is really going to make Boston University any likelier to hire conservatives.

Randy is, I think, approaching a perilous line here.