Now Without Hesitation

On who has a right to what, continued

2012-02-12T12:26:00.000-08:00

I wrote a few weeks ago about the risks of inequity involved in assigning some people's claims, but not other people's, the status of rights. But there's an argument that says, essentially, that every claim is a rights claim. The South African scholar Johan van der Walt, in an insightful draft essay called Abdications of Sovereignty in State Action and Horizontal Application Jurisprudence, calls this argument, as Frank Michelman has, the "Holfeldian point."

This argument begins with the proposition that everything people do in society that isn't forbidden by law must, instead, be permitted by law -- there is no area of life as to which the law is simply speechless. So suppose the law permits some troubling form of seemingly private conduct, such as firing employees at will or uttering hateful speech. The law giving permission (maybe a statute, maybe just a legal doctrine developed in the courts -- a "common law" rule) should be seen as a form of government action, and government action is subject to constitutional scrutiny. Then a law that permits employers to fire workers at will might be seen as government authorization to depart from the requirements of "due process of law," and a law permitting (or forbidding) hate speech might be seen as implicating the First Amendment's protection of the freedom of speech. At this point we've reached what is sometimes called the "horizontal application" of constitutional rights -- application not just to what the government does to us, but to what we do to each other.

Another illustration: Clearly part of liberty is a right to be free from physical assault from the government unless the government has some just cause for its action -- say, that there's probable cause to believe I committed a crime. Now a private person injures me; perhaps I entered someone else's property without realizing I was doing so, and he shot me. He asserts that the law permits any landowner to shoot anyone who comes on his property without consent. If the law does permit that, then on this argument that law should be scrutinized under the constitution to see whether what it permits is a violation of the right to liberty.

This isn't easy logic to resist, though in fact US constitutional law insists that much private action really is not "state action," and that only "state action" is normally regulated by the constitution. Professor van der Walt quotes from the response of Chief Justice Rehnquist, who wrote in the case of Flagg Brothers, Inc. v. Brooks, 436 U.S. 149 (1978), that "[i]t would intolerably broaden, beyond the scope of any of our previous cases, the notion of state action under the Fourteenth Amendment to hold that the mere existence of a body of property law in a state, whether decisional or statutory, itself amounted to 'state action' even though no state process or state officials were ever involved in enforcing that body of law." Id. at 160 n.10.

Why does this matter? After all, it's always open to citizens to argue that the rules on landowners' use of force, or on the permissible range of hateful speech, or on termination of employees at will are simply bad rules, and should be changed because a wise and good country would change them. Moreover, once the rules are made they do in fact regulate what private individuals can and can't do; there may be some realm of private conduct that the constitution doesn't regulate but -- and this is the Hohfeldian point restated -- there's no realm of conduct that the law doesn't reach.

The difference, however, is that once the constitution is seen to regulate these choices, they become, to that extent, no longer matters for popular choice alone. People can still advocate for the laws they want, and legislatures can still enact them, but now the range of permissible laws will be constrained by the constant background presence of constitutional principles. The result may be more vigilant protection of people's interests (now denominated as "rights"), though it's not a simple question whether on balance legislatures or courts do a better job of attending to popular needs. But even if that's so, the trade-off is that the protection of each right of daily life -- to fair treatment on the job, to full but not exaggerated freedom of speech, to protection from others' violence -- seems to be accomplished at some cost to another right, the right of democratic self-governance.

That oversimplifies the trade-off. Many court decisions actually promote democratic self-governance, for instance by ensuring that each legislative district has the same number of people (so no one district has extra power), or by ensuring full and frank political debate. It is good that we protect self-governance by preventing those who govern us from abusing their power. On that ground, probably most constitutionalists would acknowledge that they are not supporters of unchecked democracy -- and few people would say that the framers of the US constitution ever envisaged unchecked democracy either. But the broader the range of constitutional rights we come to recognize, and the more frequently they come into play, the more we constrain the choices we ourselves, or our representatives, can make. We don't really want a government of philosopher-kings, as Judge Learned Hand pointed out, but we inch towards it the more we multiply the occasions when legal rules are set by judges rather than by politics.

The New York Giants Win the Superbowl - and what to make of the fact that so many of us care

2012-02-11T14:08:00.000-08:00

Don't get me wrong: I watched the Superbowl and I rooted for the Giants and I was glad they won. But two days later there was a big parade in New York City to celebrate their victory, and I admit I wasn't excited enough to join that parade -- though I was very interested in seeing people streaming along the street below my window in lower Manhattan as they made their way to the parade route.

What does this parade tell us? Quite a bit. First, we're a species that likes to do things together. Not all of us, not all of the time -- I plan to over-generalize here! -- but it's one of the things that clearly speaks to many of us. Second, we like to celebrate, and we like to keep things relatively simple -- which is why a parade in honor of Iraq war veterans isn't going to command the spontaneous assent and embrace that the Giants' victory parade received. Third, we're also a species that likes sports. I mean, really likes sports. Today's news includes the Yankees' payroll for next year, which is under a self-imposed cap of $213 million; it also includes the news that the University of West Virginia (that's an institution of higher education) may pay $20 million to the Big East athletic conference to extract itself from that grouping and go join the Big 12 instead.

We could be a different species. We could not be descended from chattering monkeys, but from some more level-headed, or high-minded, ancestral source. Or perhaps we couldn't. Maybe there never has been such an admirable species, or maybe it did once exist but somebody else was quicker to the prey.

In any case, this is the species we've got. I don't say that we should lead our lives in constant thrall to this side of ourselves, and in fact that wouldn't be true to what we are either -- lots of people, maybe most, have their serious and principled side. But I do think that as we try to build a society that is just and caring, we've got to remember that it has to appeal to our football-playing, parade-joining, thrill-seeking side as well.

The uneasiness of a Neolithic monument

2012-01-28T13:43:00.000-08:00

Why is it important that there is a neolithic monument, built 11,500 years ago at Gobukli Tepe in Turkey? As Elif Batuman explains ("The Sanctuary: The world's oldest temple and the dawn of civilization," The New Yorker, Dec. 19 & 26, 2012, at 72), the answer is that the people who built it were apparently hunter-gatherers. That means that hunter-gatherers could accumulate enough surplus food and assemble enough labor power to be able to afford the project, which presumably took years of mass effort to create. (76)

If that's right, then agriculture wasn't necessary to accumulation and social organization. In fact, studies of Neolithic and later skeletons suggest that hunter-gatherers were healthier and better fed than their agriculturalist successors. The people who built this monument are taller than the modern Turks who are excavating it. (80-81)

So why did people turn to agriculture? Batuman suggests that the answer is ideology: "The findings at Gobekli Tepe suggest ... that it was actually the need to build a sacred site that first obliged hunter-gatherers to organize themselves as a workforce, to spend long periods of time in one place, to secure a stable food supply, and eventually to invent agriculture." (73-74) If ideology (say, the exaltation of kings) calls for centralized, hierarchical life, agriculture supplies the economic framework. And this drive pushes people into the new social organization even at the cost of their own health. And, as an archaeologist spending his professional life excavating this site told Batuman, "Ninety percent had to work, and ten per cent lived by wealth. The elite wanted to keep their advantage, and they had the power to do it." (83)

There are other possibilities, surely. In the long run, worldwide, the turn to agriculture has supported a vast increase in the number of people who can live and (mostly, I hope) without the peril of starvation. To enable more of us to exist and prosper is, presumably, a net gain for the human race. Perhaps Neolithic people thought their own lives and those of their children would improve if they settled down to farm. If so, their hopes were misplaced for some thousands of years, and that misjudgment could have been an instance of false consciousness, another form of ideological oppression. But it could also have been just a mistake -- perhaps a cognitive error of some sort -- we certainly can't be sure!

Still, if we focus on Batuman's account, what is striking is that it is about as anti-Marxist as you can get. Control of the means of production doesn't shape the form of society. Rather, beliefs generate a form of society, and disposition of the means of production, to obey their commands. That reversal of the Marxian formula may say a lot about what drives our history, and our lives -- ideas first, perhaps, and objective conditions only second. That may be hopeful.

But it's fascinating that the author intersperses reporting on Neolithic life and archaeological investigation with comments on the discrimination against women in the area of Turkey where all this takes place. At least for me, unfamiliar with Turkish names, it only gradually becomes clear that the author is a woman.

But at that point her account of modern Turkey sheds a very bleak light on her archaeological story. Ideology and power drove the ancient societies of this region, and in a direction that made many of their lives worse. Ideology and power still drive modern society, and often still in directions that make our lives worse. Possibly the turn to agriculture was particularly bad for women, condemning them to rigid male rule and "more frequent, more debilitating pregnancies." (82) Again, we don't know. In the long run, I think we are all slowly becoming better off. But it's possible to wonder, in particular, just how much 11,500 years of history has done for at least one half of the human race: women.

The importance, and limits, of cross-cultural understanding

2012-01-21T12:51:00.000-08:00

Anne Fadiman's gripping book, The Spirit Catches You and You Fall Down: A Hmong Child, Her AmericanDoctors, and the Collision of Two Cultures (1997), is a powerfuldemonstration of the value of cross-cultural sensitivity. It's clear from herbook that dedicated, expert American doctors treating a very young Hmong girlfor epilepsy and loving, attentive Hmong parents raising her in Merced,California could have engaged with each other far better than they did. Moretranslators would have helped. More interest by the health providers in theparents' perceptions and understandings would have too. Less aura of authorityon the part of the providers might also have elicited more trust and candor.

Had the health institutions and professionals managed all this -- in the midstof the many pressures of budget, workload and emotion that were part of theirdaily life -- communication would have been better. The parents would havebetter understood what they were being asked to do and why. The healthproviders, for their part, would have realized more quickly that the parentswere profoundly loving and attentive, rather than essentially evasive andnoncompliant (though they were these things too).

But even then the distance between the parents and the doctors would have beendaunting. The Hmong parents believed that their daughter’s epilepsy was causedby her soul leaving her body and getting lost, evidently with the aid of asoul-stealing spirit, a dab -- hence the Hmong term for epilepsy, quag dab peg, or “the spirit catches youand you fall down.” (20) Hmong people find many familiar Western medicalinterventions -- spinal taps, emphatically, but also lesser intrusions such asdrawing blood -- a threat to the body and soul. (33, 61) “The only form of [Western] medical treatment thatwas gratefully accepted by at least some of the Hmong in the Thai camps [towhich they had fled as they escaped from persecution in Laos] was antibiotictherapy, either oral or by injection.” (34)

Fadiman speaks only briefly (76-78) about the Merced doctor who had the mostHmong patients. The other doctors in town didn't think this one was veryskilled. In the few words of his that Fadiman quotes, he does not come acrossas deeply reflective. But it does appear that what his Hmong patients like isthat he doesn't try to push them to accept treatments they don't like – to beprecise, he “doesn’t cut.” (76) And he has a reason for this stance, quite agood one -- that “It’s their body.” (77)

One way to understand this statement is that this doctor is trulypatient-centered, and that may be so. The principles of nondomination captured inthe idea of patient-centeredness – the medical analogue to lawyers’client-centeredness -- are powerful ones.

But I wonder if this physician was reflecting an insight more sociological thanethical. Fadiman never offers any formula for what the health providers shouldhave done for the little girl who is the center of the story -- that's not herpoint in the book. But she does express the hope that someday the voices of theAmerican doctors and Hmong family members will merge into one conversation. (ix)Someday, yes. But perhaps we should accept that that may take generations. Inthe meantime, what the doctor popular with the Hmong offered might be called"peaceful coexistence" -- an acceptance that some gaps can't yet bebridged, some goals can't be accomplished, and that we should try to worktogether with mutual respect but relatively limited ambitions while the passageof time slowly brings us closer together.

Can students prepare for law practice in the three years of law school? And what if they can't?

2012-01-07T18:08:00.000-08:00

Do lawyers need more than three years of law school? Or could they get all they need to know in a three-year program better assembled than those most law schools have now?

Let's approach this question in a practical way.

First, probably just about every law school has a prescribed first-year curriculum consisting of courses introducing students to basic areas of legal doctrine, such as contracts law, and to basic skills of lawyering (sometimes including interpersonal skills such as interviewing and counseling, always including legal research, legal writing, and "thinking like a lawyer"). It's possible to argue over which building blocks are the most fundamental, but I think few would deny the need for something like this starting year.

Second, in the following two years there are often more courses in important areas of law to be taken. Some may be required, others just more or less emphatically recommended. At New York Law School, where I teach, Constitutional Law and Professional Responsibility are required upper-year courses. Other courses that students might be well-advised to take include Evidence; Wills, Trusts & Future Interests; a basic Tax course; Corporations; and a class in Criminal Procedure. These seven courses add up to close to a full second year's worth of study. Students usually spread them across their second and third years, but let's imagine that they take these courses all together, in their second year. It's then just about complete. .

That leaves one year. Is there anyone who believes that a real introduction to the many complexities of practice deserves less than one full year? I doubt it. There are certainly people who believe this year, or most of it, should take place after graduation, but who would hire a lawyer with less than a year's experience if he or she could afford a better prepared attorney? (For that matter, who would hire a lawyer with one year's experience if he or she could afford someone with five years of practice, or ten?)

In fact, law schools today do not allocate a full year to practice training --whether in clinics, simulations, externships or other courses that focus on introducing students to the world of practice and inculcating professional strengths and values. Judge Jose Cabranes, at the Association of American Law Schools annual meeting yesterday, proposed that the third year be devoted to apprenticeship, and this would be a radical step. (I've proposed a version of this idea too, a "clinical year" on the lines of medical school clinical rotations.)

But if we imagine a law school consisting of two years of substantive law and introduction to lawyering skills, followed by one year of practice apprenticeship, we haven't described a program that provides all that a lawyer might need. In a curriculum like this, there's no room for training in economics, or in sociology, or in psychology; nor for jurisprudence or legal history or philosophy. I don't mean that these subjects could never come up. The first-year contracts course could introduce students to the economic analysis of law. A clinic could introduce students to psychological insights about clients. But these introductions will likely be just that. If, say, lawyers who want to deal sensitively with their clients need a serious understanding of how clients' behavior and wishes are shaped by their social and psychological makeup, the three years I've just described won't provide it.

So what can we do? Well, here are some possibilities:

(1) We accept that we cannot teach anything except substantive law and applied skills; all broader, less strictly legal, forms of knowledge are less important or at least less fundamental. Realistically, if this means that students end their professional schooling without those other forms of knowledge, we must assume most will never acquire them.

(2) We teach less of either substantive law or applied skills, thus making room for some of the other forms of knowledge in the three years of law school.

(3) We insist (as a colleague of mine suggested) that students study some of the related fields of knowledge before they come to law school; then law school can build on what the students have already learned.

(4) We offer, or require, at least one additional year of training, perhaps in the form of an LL.M.

There's a lot to be said about each of these. But I want to close this post by considering one problem shared by all four of them: they all seem to require law students to get at least the 7 years of post-secondary education they now receive, 4 in college and 3 in law school -- if not more. Yet the expense of those seven years, the debt that students incur to pay for them, and the troubling state of the law graduate job market have led to calls for programs that would enable lawyers to practice after as few as 5 years of post-secondary schooling. If we move in that direction, we lose teaching time. If nothing else changes, the result will be that we stop teaching something -- two years' worth of something, if we cut back to 5-year programs. What won't we teach? Is there any way we can teach what we now teach more quickly? Can we re-think what we need to teach, and find curricula that will set students on the right course better than our programs now do?

I'll keep talking about these questions in posts to come.

Happy New Year -- and another look at the prison conditions case of Brown v. Plata

2012-01-03T20:44:00.000-08:00

Back in June of 2011 I wrote a post on a Supreme court case, Brown v. Plata,limiting the permissible population of California's prisons as a remedy not forunconstitutional overcrowding but for violation -- by reason of overcrowding --of the right to decent health care while in state custody. I said the decisionwas a good one, but not entirely.

Here, briefly, is the reason for the qualification: the oddity of limitingprison population without finding that the number of inmates was itselfunconstitutional. (Justice Alito's dissent emphasizes the point that the case did not turn on a finding of overcrowding unconstitutional in itself. (Alito, J., dissenting, slip opinion at 1-2.)) This makes the right to adequate health care somehow moredemanding than the right against overcrowding. That's not necessarilyunreasonable -- the presence of abysmal health care may be more unmistakableand its consequences more sharp than would be true for overcrowding as such.But I don't think the courts have articulated such a priority listing ofrights, and without one the special leverage for one compared to the other ispuzzling.

Nor is it easy to produce a listing of human claims that convincingly measuresthem all against each other. Consider, for instance, the claims of differentgroups of school children. Do handicapped children have greater rights topublic support for their education than poor children? Or members of racialminorities compared to their peers disadvantaged by economics or by handicaps?

What about weak students compared to average students? Weak students comparedto strong students may be easier, since strong students may prosper evenwithout special support. Or, perhaps more likely, strong and weak students willboth get special support, leaving those in the middle least assisted. Do thosein the middle have a claim comparable to any of these other groups?

There are, to be sure, some weak rights, such as the right not to bediscriminated against on some ground society isn't much worried about (say,whether your factory makes margarine or butter). But rights that have realforce give those who enjoy them a big, often probably a huge, edge in conflictsover the allocation of society's always scarce resources. That's a centralreason people fight to have their claims established as rights.

It's a smart move, and I think the "rights explosion" of the past 50years has broadly made our society more just -- and did so in this particular case. But in a society less than fullycommitted to social justice, even declaring a right hardly guarantees it willbe fully honored. Meanwhile, the pockets of rights that we do recognize aren'tevenly distributed, and so -- sometimes -- they probably create their owndegrees of injustice as the weak compete against the weaker for the benefitssociety is prepared to distribute.

So I'm glad the prisoners won their case. But the priority of health carerights as against overcrowding rights reflects how uneven, if not inequitable,our distribution of rights and resources sometimes is.

The Socratic Method tested

2011-12-23T20:20:00.000-08:00

Four Argentinean researchers recently published what might be described as a replication of Socrates' own form of the Socratic method. Andrea P. Goldin, Laura Pezzatti, Antonio M. Battro, and Mariano Sigman, From Ancient Greece to Modern Education: Universality and Lack of Generalization of the Socratic Dialogue, 5 Mind, Brain, and Education 180 (2011). 2400 years ago, as they observe (I admit I haven't gone back to check Plato's account myself), Socrates taught Meno's slave how to create a square with twice the area of another square, by asking the slave a series of questions designed to help the slave come to recognize the method that needed to be used. The authors report that many of the 58 contemporary Argentineans to whom they presented the same problem, and the same questions, made the same error as Meno's slave did (the mistake was to think that doubling the length of each side of the square would double the total area; in fact, doing that quadruples the square's area). The persistence of this mistake is a particularly clear proof of the continuing frailty of human reasoning, and that's interesting in itself, notably for the doubt it raises about "the efficacy of the modern educational system" (at 183).

But the authors also report that "to our great surprise," when the experimental subjects were asked to double the size of a new square at the end of the Socratic dialogue, "more than half of the adolescents (57.1%) and almost one third of the adults (32.4%) ... failed to respond correctly." (182) The authors says that "[o]ur observation of a lack of generalization in a strict Socratic dialogue extends a broad literature which has questioned the efficacy of unguided education, despite their broad popularity and intuitive appeal." (183)

The idea that the Socratic method, so central to traditional law teaching, might be demonstrably ineffective has a certain ironic appeal. But actually I think the lesson of the piece is rather different.
It certainly seems fair to say that one exposure to the Socratic method often is not enough to enable a student to acquire a skill and be able to apply it to new problems (even very similar ones). But why should it be? Meno's slave, and the students in this experiment, had no opportunity to practice what they had learned. Socrates could have returned to the task of teaching his student the following day, with a new square as the subject, and could have reminded the student then of the insights of their previous discussion. That's the sort of approach that seems likely to help someone digest a lesson more deeply and learn the special skill of "transferring" that lesson to new contexts.

Meanwhile it is perfectly possible that Socrates' approach, with the benefit of enough repetitions, will have another effect -- namely that it will help the student to really understand why (as the lesson shows) one can double a square's volume by creating a square with sides equal in length to the original square's diagonal. That insight might mean that the student is better able to go on to master deeper and more intricate problems, because his or her knowledge is based on more than simply memorization of prescribed rules.

I don't want to overstate the case for the Socratic method. It might very well be that for many students a bit of straightforward instruction, followed by drills, would eventually produce a mastery just as firm and just as comprehending as the approach I've just imagined. All that I think is clear is that the Argentinean experiment by itself doesn't prove the superiority of any such alternative. (Nor do the authors assert that it does.)

It is intriguing, meanwhile, to see that the authors view the Socratic dialogue as "probably one of the most emblematic examples of education in a minimally guided environment, in which learners must discover or construct essential information for themselves." (183) I wouldn't describe Socratic dialogue as "minimally guided," but the authors' implicit comparison to many other forms of education is instructive. Socratic dialogue, at times an elaborate performance starring the professor (as my friend Bob Dinerstein has recently noted), can also be a process in which students take responsibility for their own learning, far more than they do in a class where the prescribed lessons are all spelled out. The Socratic method in law school has even been described as a form of skills teaching, in which students learn the skill of legal reasoning precisely by performing it themselves. Clinical teaching -- sometimes seen as the humane and practical response to Socratic tyranny and abstraction -- itself is often quite Socratic, as professors supervising cases may firmly resist giving students instruction and instead ask question after question.

So does the Socratic method pass its test? I think the answer is that we have more questions to ask.

How long does law school need to be?

2011-12-16T06:25:00.000-08:00

Is three years enough time to train a future lawyer?

One answer is another question: what does it mean to say a future lawyer has been trained?

And one answer to that second question is: "a lawyer is trained when she is ready to practice law on her own." There is a logic to this answer: a law degree in the US entitles you to take the bar exam and, if you pass it and your state's character test, you are legally entitled to practice law. There are a few areas of law for which some additional credential is absolutely required, but not many.

But in fact, as a colleague of mine has said, no one in his right mind would hire such a lawyer to handle important matters if he had the money to choose someone he trusted. Nor would any senior lawyer hand over difficult cases to a new subordinate without further training and supervision -- again, assuming the lawyer's organization had the resources for these steps.

Whether or not law school should prepare people to practice on their own, in other words, it seems that few believe it does. One way to understand that consensus is to say that it seems to be widely felt that three years is not enough.

More precisely, it seems to be widely felt that three years of law school as currently constituted is not enough.

The next question (for my next post) is "how much more -- or different -- do we need?"

The smart move for underdogs

2011-12-11T08:30:00.001-08:00

What's the smart move for underdogs? Malcolm Gladwell provided an answer in an essay called "How David Beats Goliath: When Underdogs Break the Rules," published in The New Yorker of May 11, 2009. As the title indicates, the smart move is not to play by the powerful players' rules. The big boys by definition are the ones who prospered under the rules, and quite likely they're also the ones who wrote them. So it stands to reason that if the rules remain unchallenged, those who are already doing well under them will continue to do so.

There are limits to the force of this lesson. It may be the smart move to lie, cheat or kill, in a world where powerful people don't need to do those things (that may not be our world, but that's another story) -- but lying, cheating and killing are still moral wrongs. Moreover, the rules may be set up more or less fairly: in a democracy, there is some real chance that insurgent political groups will be able to win power within the rules; and in a well-regulated capitalist state, a new competitor may be able to triumph over established industries (see Microsoft, Google, Apple).

So Gladwell's lesson isn't a mandate for immoral action or for anarchy. But it is a guide to the smart move within those limits. Thus David and Goliath: David brought an unexpected tactic, the slingshot, and an intensity of effort (Gladwell quotes the Bible: "And it happened as the Philistine arose and was drawing near David that David hastened and ran out from the lines toward the Philistine") that overcame Goliath. So also Gladwell's extended lesson on the power of the full-court press in basketball -- it requires a lot of effort but disables stronger opponents. So also guerrilla warfare. Those less-powerful actors who are willing to depart from existing conventions do well, while their counterparts who meet the powerful on the powerful's terms lose.

Why don't more people try the smart, underdog move? Gladwell's answer: "The coaches who came to Louisville [where Rick Pitino's college teams practiced the full court press] sat in the stands and watched that ceaseless activity and despaired. The prospect of playing by David's rules was too daunting. They would rather lose." That sounds like laziness, and that alone may be part of the answer. In many circumstances it is acceptable to be mediocre, and playing by the winner's rules will make weaker teams dependably mediocre.

But Gladwell's own account indicates there's more to it than that. He also writes that "[w]e tell ourselves that skill is the precious resource and effort is the commodity. It's the other way around. Effort can trump ability ... because relentless effort is in fact something rarer than the ability to engage in some finely tuned act of motor coordination." This observation suggests that the weak stay with the approach of the powerful because they believe that the approach of the powerful is actually superior. The weak want to be like the strong. Or, put differently, they envy the strong and believe that by becoming like them they can triumph over them. And they believe this strongly enough to discount evidence that suggests the smart move is to become unlike their competitors -- a feat of reasoning fallibility that appears to be absolutely typical of how people think.

There surely is one other problem. Even if we free ourselves from the tyranny of the conventional, we haven't yet figured out the right unconventional move. Or at least we may not have -- the utility of some moves in some contexts, like the full court press in basketball, may now be perfectly clear if we have eyes to see with. In other settings, however, the smart move (or moves -- of course there may be more than one) may not be easy to discern, and certainly many unconventional moves will turn out to be dumb as well. So the question for law schools that aren't prospering by the current rules is: what's the smart move? I'll work on that in future posts.

Rawls and clinics

2011-12-10T14:08:00.001-08:00

A thoughtful observer, responding to the latest wave of criticism of legal education, argues that clinical legal education -- though valuable -- isn't anything like the cure. What concerns this observer is the likelihood that students will become so absorbed in the press of practice in clinics that they will not accomplish something else they need to do, namely to engage deeply with critical perspectives, such as the philosophy of John Rawls, that will help them to judge how to act and what to seek in the world they will soon enter.

I think it is undeniable that clinics are not the place for a deep engagement with Rawls. That's equally true, of course, of a contracts course that focused on the details of modern contract doctrine -- even though some of Rawls' writing falls in the tradition of social contract thinking. As a general proposition, a deep engagement with philosophy requires ... a deep engagement with philosophy, and no course whose focus is on legal doctrine or legal practice will be likely to provide room for that kind of study.

Whether the same is true for other perspectives from beyond the law that students might need to study on their way to being lawyers may be more debatable. A clinic or a seminar focused on a public policy problem -- say, the treatment of homeless people in this country, or the involuntary hospitalization of the mentally ill -- may be an excellent place for students to encounter issues of sociology, psychology and public policy. These or other courses may also provide opportunities tostudy the interaction of law and economics. Certainly not every clinic willexplore issues like these in depth (nor will every nonclinical seminar), butsome can.

I'mmore concerned, though, with Rawls and with moral philosophy. Clinics present many issues that call for moral judgments by lawyers and law students, butin the clinics -- as, I assume, in most lawyers' day-to-day practice -- thesejudgments are not made primarily by working through the views articulated bygreat philosophers. Presumably they're not made this way by most lawyers inpractice either, nor by most people in their daily lives. Does the fact thatclinic students are doing what practicing lawyers do amount to a defense?

Arguablynot. One might respond that it is precisely because most people don't approachproblems this way that our common solutions to problems are so flawed. Or onemight say that while most people outside of schools don't address issues thisway, it's the function of schools to provide learners with a foundation thatthey will be able to utilize, perhaps without even consciously being aware theyare doing so, in the years to come.

Idon't want to deny entirely the force of these responses. In particular, I doagree that school is a time to step back from what is immediate and seeminglyself-evident, to challenge one's own thinking and develop judgments that aredeeper than those with which one began. That function is probably a reason whythe preparation for practice should not be allpractice, since it is difficult -- not impossible, but difficult -- tochallenge one's own thinking in the very midst of applying it.

Butat the same time I don't think it is possible to show that the way peopleachieve mature morality is by academic study. Academic study does shed light,but much of it what it does is to induce confusion, and that confusion isn'tlikely to be fully resolved in any one course, or even any series of courses.Meanwhile, growth as a moral person may proceed on quite different paths -- throughempathetic response to suffering, for example. Growth as a social thinker maybe the result as much of growth in one's personal relationships as of growth inone's academic mastery of the relevant issues.

Soin the end I don't think the fact that clinics are not the place to learnRawls, or more generally the place to explore extra-disciplinary perspectiveson law, should dissuade us from thinking -- as the current critique of lawschools urges -- about how to make our schools more practice-oriented. And whenwe turn to that task, it seems to me that the claim of clinics (and otherskills courses) is a powerful one: to learn to practice, one must practice.

Interpreting the torture statute's meaning, continued

2011-11-25T11:00:00.001-08:00

Jeremy Waldron, in his book Torture, Terror and Trade-offs: Philosophy for the White House (2010), offers another argument against the President's right to ask his or her lawyers for a precise answer to the question of what conduct the torture statute actually forbids. Actually, he does not argue against the President's seeking precision; rather he argues against the President's treating the torture statute as a problem to be maneuvered around. Asking what the statute forbids isn't necessarily part of trying to circumvent it, and I don't take Waldron to be arguing that Presidents are barred from seeking precision if that is all they are seeking.

What Waldron is arguing is that Presidents have no right to treat law as something to undercut and evade. In this, Presidents are quite unlike ordinary citizens. Because the rule of law exists to protect individual freedom, Waldron argues (at 322), "there is a presumption in favor of individual freedom: everything is permitted if it is not clearly forbidden. It is not inapproriate for lawyers to help their clients navigate the legal system with this in mind--looking for ambiguities and loopholes, taking advantage of them where they exist, not going out of one's way to defer to laws whose application to a client's case is ambiguous or unclear."

Why are Presidents (and governments) different, on Waldron's account? Because government does not have a right to individual freedom; in fact, absence of law binding government creates peril for individual freedom. Government exists in large part to protect its citizens' freedom, and that freedom would not exist unless it included freedom from lawless government action, otherwise known as abuse of power. (322-23) "Government lawyers," therefore, "should not be in the business of looking for pockets of unregulated discretion or loopholes in such regulations as do exist. They should not be advising their political bosses that they are entitled to avoid the impact of legal constraint where it is ambiguous or unclear." (323-24) And he applies this approach even to the realm of international law, arguing that "[g]overnments are bound in this arena, as in any arena, to show themselves devoted to the principle of legality in all their dealings. They are not to think in terms of a sphere of executive discretion where they can act unconstrained and lawlessly." (329)

Waldron implies, however, that there may be exceptions to these conclusions. He writes (323 n.6) that "[t]he Rule of Law is just one of the normative ideals that apply to government action. Others, such as efficiency or even security may sometimes pull in a different direction." If security did present a more pressing claim than the rule of law in a particular situation, presumably the duties of a lawyer asked about the law could similarly shift -- unless it is the job of lawyers always to stand for the law, even if other actors (generals, perhaps) may legitimately choose to disregard the law's demands. Whether Waldron would allow lawyers some freedom of action on these grounds isn't entirely clear; he emphasizes that while lawyers do serve multiple goals, "we pursue justice and the social good through the Rule of Law, not around it or in spite of it." (320)

So: is it inconsistent with the rule of law for a government lawyer to try to limit the legal constraints on the government by employing the tools of legal argument and interpretation to construe those constraints to be as modest as possible? That's the loophole-finding, advantage-taking role Waldron finds quite appropriate for the lawyer representing an individual citizen, and quite inappropriate for the lawyer representing the government. If that role is indeed inappropriate for a government lawyer, then presumably those lawyers can offer the President only such legal arguments and interpretations as support the full implementation of the law as it's written, as well as the full realization of its underlying policy goals.

There is a lot to be said for the proposition that just laws and democratic choices deserve the full support of the government and its lawyers. But not all laws are just, nor are all democratic choices, and not all laws result from untainted democratic processes. What, then, are the obligations of the government lawyer who encounters an unjust or undemocratic law?

To be sure, one person's injustice is another's categorical imperative. Who is to say what is unjust and what isn't? As a general proposition, in legal representation it is the client rather than the lawyer who says what is desirable -- as long as the bounds of the law are not breached. With a lawyer for the President, this general rule seems especially apt, because the President, not the lawyer, was elected to represent the views and needs of the people.

So let us imagine that government lawyers are asked to construe an unjust law, that is, a law viewed by the President as unjust. Just to make this hypothetical a bit more real, let's suppose it's a statute that forbids any "transactions" between government agencies and undocumented aliens. Let's suppose also that the statute could most easily be read to bar, as "transactions," even the provision of emergency medical services to an undocumented alien, but that this reading is not absolutely compelled by the available interpretive materials (such as the text or the statements of the enacting legislators). And suppose that the President (or the Governor of Alabama, since this law is not entirely unlike that state's harsh new law regulating undocumented aliens) believes the law is unjust. So the President asks, in effect, "How can we minimize the application of this law by the use of the tools of legal argument and interpretation?"

It seems to me that in this case narrow interpretation serves justice. As I've mentioned, Waldron distinguishes between the pursuit of justice and the rule of law, on the ground that lawyers "pursue justice and the social good through the Rule of Law, not around it or in spite of it." I am not as comfortable as he seems to be with the idea that the rule of law in and of itself is not partly a matter of justice. Could a society with clear and consistently applied, but deeply unjust, laws be said to enjoy the rule of law? There probably has never been such a place -- deep injustice is likely always accompanied by arbitrariness -- but in principle I'd say that that hypothetical nation (a nation that apartheid South Africa, for instance, aspired to be) was not a country governed by the Rule of Law. What anti-apartheid lawyers used to say was that such a country had rule by law instead.

But whether the pursuit of justice is integral to honoring the rule of law, or whether it is a separate value that lawyers also serve, in the end is not critically important. Either way, in the case I've described, the path to justice (or at least a path to justice) is to seek a reading of the statute that minimizes its reach, by employing the available sources of interpretive guidance to generate a narrow interpretation of its terms -- even though that interpretation isn't the one those materials most easily support. That means that in situations where governments are constrained by unjust laws, they may indeed rightly react by turning to manipulative lawyering as a response. Waldron's concerns about government's duty to the system of law itself may weigh against this course of action and sometimes, maybe even often, may weigh so heavily that this approach, even if it is a path to justice, would be the wrong path to follow. But I don't think this path could always be ruled out.

How can a government come to be "constrained" by unjust laws? Isn't the government itself the lawmaker? Yes, abstractly; but not always, concretely. Congress can pass a law over the President's veto; the President then is obliged to implement it (at least unless it is unconstitutional), but if the President believes the law is unjust, what I've argued is that it could be right for the President and the President's lawyers to use legal interpretation to minimize that injustice. Similarly, a nation may be subject to international law rules whose meaning at first blush would be unjust to that nation and its citizens; and in such situations the nation and its lawyers might be right to use legal maneuvering to avoid this reading of the law.

I want to emphasize that I do not think either the national or international law prohibitions on torture and mistreatment of prisoners are unjust. But suppose the President felt otherwise. A President taking that view could legitimately say that his or her request for aggressive lawyerly interpretation of the torture prohibitions was not a denial of the rule of law, but an effort to seek justice within the constraints of the law.

There is also a more prosaic reason to defend aggressive government lawyering, namely that the legal system makes meaning from argument. Suppose a statute can be read either broadly or narrowly; the underlying policies said to be embodied in the statute favor a broad reading, but the terminology used in the law seems to point to a narrower reading -- one that would constrain government freedom of action less. If government lawyers should never look for "pockets of unregulated discretion," as Waldron maintains, then it might follow that they should not argue for this narrower reading. But the legislature that enacted the law, and the citizens who read it (with the benefit of training in statutory interpretation), might believe that the narrower reading is the right one. If the interpretive arguments favaoring that view aren't pressed, and as a result are ignored by judges or other decisionmakers, then the rule of law may have been injured -- because the methods of the law's interpretation are themselves part of the body of law whose stable and predictable application the rule of law protects. I don't mean to suggest that the government's lawyers must make any and all arguments just because the arguments can be devised, and in fact there are many reasons why that shouldn't be the government's duty (the arguments may actually disserve other goals the government has; other parties may be available to press the points on their own; or other parties may not be available to refute what the government says, in which case only the points the government embraces will get serious consideration by decisionmakers). But I do want to maintain that rule of law values may favor arguing against the extension of legal controls on the government, even though other rule of law concerns may (as Waldron says) favor the extension of such controls.

All of this leads me to say that we cannot take the rule of law, by itself, as a sufficient reason to bar government lawyers from making arguments that seek to expand the government's freedom from legal restrictions. That, however, doesn't mean that limiting the reach of the torture statute was legitimate. It does suggest that the President as client could believe it was legitimate to ask for such an interpretation, and it underlines the importance of examining how lawyers should answer such a request.

Is it legitimate for a President to ask exactly what conduct the torture statute forbids?

2011-11-19T10:54:00.001-08:00

In a piece I've been working on for some time, on how to correctly interpret the United States' "torture statute," I've argued that it is legitimate for a President to ask his or her lawyers to explain precisely what conduct the statute does and does not cover. But one might well respond that really the right approach to this statute is to avoid coming anywhere near it. Or, less sweepingly but to the same effect, one might argue, with Jeremy Waldron, that society has provided as much precision as it should when it communicates that it prohibits "the deliberate infliction of severe pain"; he urges that no one "has a legitimate reason for demanding that the prohibition be . . . 'drawn closer' than that." Jeremy Waldron, Torture, Suicide, and Determinatio, 55 American Journal of Jurisprudence 1, 24 (2010).

Does that mean that it is really not legitimate for the President to ask the lawyers for a precise reading of the statute's terms? Not necessarily. Waldron's point, as he phrases it, is that the President could not rightly demand more precise meaning. To demand more precise meaning, however, may be to insist upon a binding determination in advance: so much is legal, so much is not. There are many circumstances in which the exact application of the law to actual conduct is not certain in advance, or even after the fact; those many areas of uncertainty are much of what lawsuits are made of. But we do not tell people, usually, that in those areas of uncertainty they must just do the best they can on their own. Instead, normally, we say that they can ask their lawyer, if they're fortunate enough to have one, for an expert opinion on what the law really does mean.

Why? Because in a society governed by the rule of law, the laws must be knowable. Secret law, at least as a general matter, can't be permitted. Since the written law is always at least somewhat in need of interpretation, it must be permissible for anyone, including the President, to ask a lawyer to interpret it -- otherwise its true meaning would remain hidden. Such questions are legal, and legitimate.

Is it ever illegal to ask what the law is? Surprisingly, the answer to this question is probably yes. A client might very well want to know what the law is in order to carry out some illegal scheme -- a classic example would be the client who inquires, "What countries don't extradite people charged with murder?" The client who asks about the law as part of a criminal enterprise may well be acting illegally even in asking the question, and evidence of that question might someday be offered as part of the proof of the client's guilt. On the other hand, a client who asks what the law is, so that he or she can come as close to violating it as possible -- but not violate it -- is acting legally, even if such a client deserves to be called a "bad man [or woman]," as Oliver Wendell Holmes, Jr., famously did.

So it might be argued, to make all this concrete, that when President Bush asked his lawyers to interpret the torture statute, he did so as part of an illegal scheme to covertly violate that very statute. Therefore the question itself was illegal.

That might be argued, but it's not at all clear that the argument would be correct. It seems, in fact, that while President Bush was eager to circumvent various legal restrictions, he did not want -- or his advisers on his behalf did not want -- to do so by directly violating the law. Jack Goldsmith, in his book The Terror Presidency: Law and Judgment Inside the Bush Administration (2009), reports that when he told Alberto Gonzales and David Addington, top Administration lawyers, that "[t]he President can also ignore the law, and act extralegally," they "looked at me as if I were crazy." (At 80.)

If, then, Bush wanted to take the "bad man" view of the torture statute -- to come as close to violating it as possible, but not violate it -- then his question was legal, even if his approach was repellent.

If, on the other hand, Bush wanted to arrange an escape from liability akin to flight to a country from which extradition would be impossible, that context would make his question part of an illegal scheme. Suppose, for instance, that he consciously engineered knowingly false advice from counsel, advice that could be transmitted through the executive branch, and then secured passage of legislation making reliance on advice of counsel a defense against criminal liability -- that might be the equivalent of planning one's flight from prosecution. But if, on the other hand, President Bush sought and obtained good faith advice, and then obtained legislative support for a defense of good faith reliance on this advice, all that would likely be entirely legal.

There is also a third possibility. Waldron describes it in his book, Torture, Terror and Trade-offs: Philosophy for the White House (2010). There he says that "[w]e know, for a fact, that administration lawyers strove mightily in 2002 and 2003 to undermine the clarity of the legal framework relating to torture. . . . The aim was to create an atmosphere in which honorable people, inside and outside the armed forces, would come to think of the rule against torture as a muddled and difficult technical issue rather than a clear and uncompromising prohibition." (At 266.) The point, to quote Goldsmith again, was that "[t]he President had to do what he had to do to protect the country. And the lawyers had to find some way to make what he did legal." (Goldsmith, at 81.)

Let us assume that these descriptions are accurate, and furthermore that what the lawyers did was what the President asked them to do (though exactly what the President himself asked may be quite uncertain). In that case, his question was not "what precisely does the torture statute prohibit?" but rather something like "Please devise a plausible argument that the torture statute does not prohibit very much."

It seems to me that even this question is not forbidden by Waldron's initial injunction that no one has the right to demand specificity concerning the statute. The President, on this account, was not demanding that the law be acknowledged to be X. Rather, he was asking his lawyers to argue that the law is X. Argument that the law is X, or Y, however, is an absolutely standard part of the process of determining what the law actually is. Lawyers routinely say things to the effect that "under the law, rightly interpreted, my client has acted lawfully." Then they support that claim with elaborate interpretive arguments. In doing so, the lawyers are bound by good faith, but they are not actually required to believe their own contentions. If the net result is to persuade others -- "honorable people" -- of the correctness of the view they've asserted, all that is just part of our society's process of lawmaking.

That would not be so, however, if the President's question was something like "Please devise some argument, no matter how preposterous and unreasonable, that the torture statute does not prohibit very much." If that was the President's question, then he might well have been asking the lawyers to violate their duty of good faith -- and then we would be approaching the "illegal scheme" zone again.

I asked near the beginning of this post whether it was "legitimate" for a President to ask for a precise interpretation of the torture statute. What I've answered is that in general -- not always, but in general -- it is perfectly legal and legitimate for clients to ask their lawyers for as much precision as can be discerned, and even to ask their lawyers for advocacy of particular interpretations on their behalf. This is important, because if the President can legitimately ask this question, then we need to consider how it should legitimately be answered (and this is what I've been trying to do in the essay I mentioned).

* * *

I have left one possibility unexplored till now, and want to briefly consider it: namely, that the President's questions might be legal, but still illegitimate. Broadly we can imagine two different kinds of illegitimacy, which we might call "procedural" and "substantive."

What would procedural illegitimacy be? Here's one possible answer: perhaps the President does not have the same prerogative to ask lawyers to concoct arguments on his or her behalf as ordinary clients do. Much of the work of interpreting the torture statute and other laws that constrained the Bush Administration's response to 9/11 was done by the Justice Department's Office of Legal Counsel, and it is quite possible that that office has acquired special duties of dispassionate analysis that were violated by the legal work done in the Bush era. Especially because the Office of Legal Counsel's opinions evidently are often treated within the Executive Branch as authoritative rather than just more or less persuasive, it is also quite possible to argue that if the President deliberately sought opinions that required the lawyers giving them to violate those duties of dispassion, then his requests were illegitimate. They would have been all the more illegitimate if the President then relied on the reputation of the office as a basis for "selling" its opinions to soldiers and investigators and interrogators; and they would also have been all the more illegitimate if those lower-level officials who wanted to escape the prohibition on torture understood and embraced the President's maneuver. But it should be acknowledged that exactly how dispassionate the office must be is a contested matter. Perhaps the point is most contestable in the field of war and foreign policy, where it is possible to argue that the President's interpretations of our legal duties are constitutionally entitled to some measure of deference; arguably, the President is entitled to endorse interpretations that legal reasoning alone would not support.

And what about substantive illegitimacy? Waldron argues in his book that the prohibition on torture is a key, fundamental part of our legal order. It would follow that deliberately seeking to undercut its force would damage not just the strength of this prohibition but other integral components of the rule of law. This is damage not to how the law is arrived at (procedure), but what the law is (substance). Waldron's argument is important, though I hope to return to the issue it raises, of just when a challenge to some part of our present law should be deemed illegitimate rather than seen as part of the ongoing process of argument through which our law lives.

For now, I'll just say that if the President's questions are legal, then even if they are illegitimate they may deserve an answer -- but the lawyers giving the answer may be able to do so in ways that resist the illegitimacy.

How wolves bred people

2011-11-15T19:58:00.001-08:00

In his article "From the Cave to the Kennel," Wall Street Journal, Oct. 29, 2011, Mark Derr reviews new evidence and inference about the process by which wolves became dogs. The old view, as he describes it, was that some wolves entered human settlements as scavengers, and we set about transforming them into dogs. The new view is that wolves and humans chose each other, and that early domesticated dogs were much closer to wolves than we might have thought. "The emerging story," he writes, "sees humans and proto-dogs evolving together: We chose them, to be sure, but they chose us too, and our shared characteristics may well account for our seemingly unshakable mutual intimacy."

Derr points out that humans assisted by dogs would have had "a competitive advantage over those without," as their dogs would have served both as camp guards and pack animals (early dogs were big). Then he comments, but without elaboration, that "[t]he relationship between dogs and humans has been so mutually beneficial and enduring that some scholars have suggested that we--dog and human--influenced each other's evolution."

How would that have come about? Well, of course we don't know. But it's easy to see what might have happened. Those humans who had dogs to help them were more secure and more mobile, and hence more likely to survive. Their children were more likely to survive too. And we're more likely to be the descendants of the humans who were good at associating with wolves and dogs than of other humans.

What does it take to be good at associating with wolves? Communication skills are probably important; those humans who were best at conveying instructions to other creatures who lacked language would have been best able to take advantage of the aid wolves could offer. Empathy would also have been useful, in part to make communication more effective, but perhaps also to make interaction more enjoyable. The wolves that chose us would have preferred to stay with the people they liked.

The upshot is that the interaction between humans and wolves tens of thousands of years ago favored people who were empathetic and communicative. Not overwhelmingly empathetic, to be sure; humans and wolves no doubt hunted together from a very early time, and jointly treated various other animals as prey pure and simple. But the people who made friends with wolves could well have been somewhat warmer and more social than others. And once those traits were favored as a result of the survival value of having wolves or dogs as companions, then their impact needn't have been limited to our dealings with wolves. We are the descendants not of those with an empathy-with-wolves trait, perhaps, but rather of those with an empathy trait -- now available to help shape our relations with many other animals, not to mention with each other.

So if people and wolves evolved together -- or, put differently, if wolves bred people even as people much more emphatically bred wolves -- what wolves bred us for may have been traits that are an important part of what we think of today as most distinctly humane.

On trading off security and liberty

2011-11-14T16:46:00.001-08:00

In "Security and Liberty: Critiques of the Tradeoff Thesis," Professor Adrian Vermeule argues that it is undeniable -- yet widely and mistakenly denied -- that the "tradeoff thesis" is correct. This thesis, as his abstract puts it, is that "there exists a security-liberty frontier, such that policies below the frontier can be changed so as to improve both security and liberty, while if policy is already at some point on the frontier, neither security nor liberty can be increased without decreasing the other (the tradeoff curve)."

I wouldn't deny that we need to weigh security and liberty concerns, or that they do sometimes clash, or that in principle we might decide to sacrifice one or the other when we encounter such a clash -- and that in this sense we do indeed sometimes need to trade off between security and liberty. One can accept all that without saying whether, in such a situation, we should lean in favor of security or instead in favor of liberty, and I take Vermeule's point in this paper to be that we should start by recognizing the reality of tradeoffs so that we can get on to arguing about which way to make the trades.

But the way we picture problems has an impact on how we reason about them, and Vermeule (elaborating, he explains, on an illustration he and Professor Eric Posner offered in their book Terror in the Balance: Security, Liberty and the Courts (2007)) offers (at 2) a picture that consists of a graph. On one axis is security, on the other liberty. A smooth curve connects the maximum level of security, accompanied by zero liberty, to the maximum level of liberty, accompanied by zero security. On this curve, the security-liberty frontier, it is impossible to increase liberty without decreasing security, and vice versa.

Now Vermeule is careful to say that "[t]he level and shape of the frontier are not fixed; they change over time, as exogenous threats wax and wane. Moreover, the level and shape of the frontier may change because society shifts resources towards or away from security policy, thus expanding or contracting the set of feasible measures." (3) It seems perfectly consistent with Vermeule's thinking, therefore, to infer that the actual "security-liberty frontier" is far from a smooth curve. Different threats, different measures, different circumstances of all sorts, could mean that this curve is far from smooth. It might be, for instance, that on this frontier, at some hypothetical point X (say, the point at which warrantless surveillance of US citizens is instituted), a very modest resulting increase in security could be accompanied by a drastic loss of liberty. This doesn't mean that the security-liberty frontier idea is false, but it does mean that the implication -- from the graph presented to illustrate it -- that tradeoffs are gradual may be quite mistaken, and that in turn may be a reason to treat these tradeoffs as less a matter for pragmatic calculation than for principled, determined challenge.

Moreover, it's not actually clear that there will always be a frontier. A society is a moving target, and intervention A will surely have not only planned effect B but also unplanned effects C and D. The increase in surveillance may entail an increase in resources devoted to surveillance, resources that shift the range of possible policies and so move the security-liberty frontier's location. More broadly, the correct analogy may be to Heisenberg uncertainty: the very act of altering a society's mix of security and liberty policies may itself shift that society's security-liberty frontier.

Even if there is a frontier, it may sometimes, perhaps often, be impossible to mark. A given security measure, it is said, will have such-and-such an impact on security, at such-and-such a price for liberty. But none of these calculations can be certain. (Vermeule recognizes many of the difficulties of calculation in his essay.) Nor is it likely to be easy to determine that we are in fact on -- or not on -- the security-liberty frontier, which is in principle the only circumstance in which it makes sense to consider trading off liberty for security (since until we reach the frontier, by assumption we could increase security without any tradeoff against liberty). So to ask whether a given tradeoff moves us in the right or wrong direction on the security-liberty frontier may be to ask a question that is simply unanswerable. An unanswerable question may not be the right one to ask.

It seems to me, in short, that the "tradeoff thesis" and the "security-liberty frontier" are not one idea but two. There may well be circumstances in which security and liberty do conflict and choices may indeed have to be made between them, but those choices will be much less certain and much less straightforward than the smooth contours of the tradeoff curve seem to suggest. A proper sense of our own limited capacity for calculation is, I think, a reason to lean in favor of maintaining the liberties we have achieved over so many years of effort.

Cognitive illusions and law school grades

2011-10-25T16:56:00.000-07:00

Daniel Kahneman, the famous cognitive theorist, has an article in the Oct. 23, 2011 New York Times Magazine called (in the online version) "Don't Blink! The Hazards of Confidence." His point, illustrated with striking stories from soldiering and high finance, is that people often work very hard to carry out a task which they believe will lead to some result, even when they encounter evidence that proves that the task in question has no connection to the result they desire. So, for instance, Kahneman himself, with other colleagues, evaluated military officer candidates' performance in a one-hour group leadership exercise as a way to tell whether the candidates would become good officers -- and he and his colleagues continued to make confident predictions based on the exercise even after they obtained data showing that their ability to predict was almost zero. They suffered from what he calls an "illusion of validity."

He doesn't argue that all expertise is equally self-deluding. Instead, he writes that "[t]rue intuitive expertise is learned from prolonged experience with good feedback on mistakes." In addition, "the environment" needs to be one "in which the judgment is made sufficiently regular to enable predictions from the available evidence." Some settings -- apparently the stock market is one -- are just too irregular for predictions to be made. Presumably the best course in such contexts is to make no predictions at all, for example by investing in index funds which will assure that you do exactly as well as the market as a whole.

Is it possible to predict who will be a good, or a successful, lawyer? (I realize those two adjectives have meanings that overlap but aren't the same.) Sometimes the answer is surely yes. A student from a very highly-regarded law school who does very well at that school has a strong chance of getting a job in a law office with high standards of practice and vigorous training, and he or she probably will go on to a successful career. But that example is a misleading one, because what makes the prediction possible may not be any direct function of the student's ability (reflected here only in his or her high grades and the fact that the student is at a highly regarded law school) so much as it is the result of a set of social factors that mark out a relatively smooth path to success. And even here, if we asked which of our full-of-promise students would turn out to be the best, or the most successful, I think we would have a lot more difficulty answering.

I implied just now that grades reflect ability. But do law school exams measure future legal success? I know of no study that finds evidence of this, perhaps in part because it's so difficult even to formulate an objective and usable measure of success. (Nevertheless, as a colleague has pointed out to me, many legal employers have historically placed a great deal of weight on grades.)

Rather than contending that law school exams actually measure the chance of future success, it seems more plausible to maintain that law school exams measure legal reasoning ability, which is, in turn, a component of success. But it isn't certain that exams measure legal reasoning ability very well, since (as has often been pointed out) it's not self-evident that the ability to rapidly deploy knowledge hastily crammed before an exam is a very good measure of ability to perform all or most of the various reasoning tasks that practicing lawyers actually undertake. Being able to do well on law school exams is a pretty good predictor of ability to do well on the bar exam -- which is essentially a really big and long law school test -- but the bar exam's ability to measure reasoning ability in general, or in other contexts, is also questionable.

All of this does raise the possibility that law school grades, collectively, are like the officer candidate screening test Kahneman performed. Until we can measure success, we will have to accept that it may turn out that the grades we law professors give really don't correlate much with anything except each other. (Even that correlation isn't perfect, but I think it is probably true that over 3 years of law school a pattern of grades usually emerges.)

But I would not suggest giving up altogether, and instead resorting solely to the law school equivalent of an index fund (would that be universal pass-fail grading?). That's partly because I think grades do roughly measure some aspect of reasoning ability, and I'm inclined to think that ability shown on exams does to some extent reflect ability in other reasoning contexts as well. (This may be my illusion of validity.) But I also think that grades probably measure -- imperfectly -- more than legal reasoning ability. To be specific, they measure success in law school, and not success on a one-hour, artificial exercise (as in Kahneman's military screening) but in the principal occupation of a student's life over a three-year period. Good grades are a measure of "successful-ness," which in turn is a reflection of a host of factors, including ability, determination, self-discipline and adaptability, all of which are probably relevant to the course of one's future life. It's often said that law school is a process of socialization, and "successful-ness" might be rephrased as the accomplishment of socialization.

So in the end law school grades may be a predictor of future success (and not just because so many advantages, such as Law Review membership, accrue to those who get these good grades -- and in turn promote their chances of success elsewhere). Anyone hiring a young employee would like a measure of his or her successful-ness, and we have reason to think that law school grades may be a genuine measure of that. We also have ample reason to think that they're far from a perfect measure of this complex set of qualities, let alone of how the current student will grow and develop on these scores over time. That, I think, does counsel in favor of modesty of prediction: we may know something, but we don't know too much. It is tempting to say that we should still rely on whatever we do know, because that's better than nothing (and also may be a cheap way to carry out an otherwise very difficult task). But to borrow again the language of finance, perhaps the legal profession really should diversify its portfolios, and put a healthy chunk of its resources -- that is, its hiring predictions -- into considering criteria other than grades. Perhaps employers should even make some use of "index funds" or, in other words, should acknowledge that seeming differences in credentials may actually not have predictive value. Many employers may already do this. For those that don't, the next problem for law schools is how to persuade employers to consider, but not be seduced by, the grades we give.

The Killing of Muammar Qaddafi

2011-10-21T17:14:00.000-07:00

Muammar Qaddafi appears to have been murdered. He was captured, perhaps already injured but still able to stand and to speak, and then he was shot to death. That's a war crime and a regular crime.

His murder should not surprise us. He ruled by brutality, and died the same way. But it is worth noting that this is not simply poetic justice. Rather, it reflects a fundamental truth: that the rules of war, and other rules that somewhat restrain the utter ferocity of conflict, depend on mutual adherence for their continued effectiveness.

It might be a good thing if human beings who were regularly subjected to outrageous and unlawful violence characteristically continued to live by the very rules whose violation was wreaking havoc upon them. Whether it would or wouldn't be a good thing depends on your assessments both of strategic calculations of deterrence and your views of the reasons for the binding force of moral rules. But whether or not such conduct would be a good thing, it isn't likely. People don't act that way. We're too quick to anger, too skeptical of each other's intentions, too impatient with enduring suffering. Not everyone, but probably most of us.

If you live by the sword, you will die by the sword -- if your enemy can get his hands on a sword. Qaddafi's did.

Opposing the proposed appointment of a new Chief Justice of South Africa

2011-08-30T15:27:00.000-07:00

After South Africa's Constitutional Court decided that President Jacob Zuma's extension of Chief Justice Sandile Ngcobo's term was unconstitutional (a decision I wrote about here and here), President Zuma announced his intention to appoint Mogoeng Mogoeng, already a justice on the Court, to be its Chief Justice. The Constitution requires the President to consult the Judicial Service Commission and political party leaders from the National Assembly prior to appointing a Chief Justice, and as one step in that process the Judicial Service Commission is accepting public comments about the appointment.

I've joined several other US-based law teachers in submitting a letter criticizing this proposed appointment. Here it is:

The Secretariat

The Judicial Services Commission

Private Bag XI

Constitution Hill

Braamfontein 2017

SOUTH AFRICA

August 26, 2011

Fax No. 011-27-86-649-0944

Chiloane@concourt.org.za

Dube@concourt.org.za

By e:mail and Fax:

This Memo is in response to the Judicial Services Commission’s call for public comments on the nomination of Justice Mogoeng Mogoeng as the next Chief Justice of South Africa. We are a group of USA-based law professors who have written extensively on South African constitutional issues, and who have followed the proceedings of the Constitutional Court since its establishment in 1995. We are all admirers of the jurisprudence of the Constitutional Court, particularly the court’s path breaking and innovative human rights jurisprudence.

We write to express our concern at President Zuma’s decision to nominate Justice Mogoeng Mogoeng as the next Chief Justice. We do so not to impugn the integrity of Justice Mogoeng, but to suggest that his appointment will betray the transformative vision embodied in the constitutional text and in the jurisprudence if the Constitutional Court thus far. Those of us who write and teach in the area of the constitutional law and human rights law have been inspired by that vision.

The Constitution of South Africa has been much heralded and constantly referenced by constitutional and human rights scholars and advocates. In addition, judgments of the Constitutional Court have been admired, particularly in the court’s human rights jurisprudence. Although some problems since 1994 have tested the capacity of the legal system, especially in the area of criminal justice, the South African legal system is for the most part highly regarded and widely admired. Several reasons account for this, but one is the caliber of judges appointed to the nation’s highest courts, including the Supreme Court of Appeal, but particularly the Constitutional Court. Indeed, the Constitutional Court’s first appointed judges constituted an impressive range of the country’s most admirable legal talent, including legal giants of the anti-apartheid legal establishment. The judgments of the court, and particularly its human rights jurisprudence, are widely cited and analyzed. It may not be an overstatement to suggest that the South African Constitutional Court is currently viewed as one of the pre-eminent constitutional courts for interpreting international legal principles, particularly as those principles pertain to human rights. Since its establishment in 1995, the Constitutional Court has achieved a solid reputation and an impressive degree of credibility among the international legal community. Its judgments have been seen as central to the transformative project of nation-building in South Africa, and a model to countries of the global north and global south.

The Constitutional Court is in fact one of the pre-eminent contemporary institutions articulating the transformative possibilities embodied in the international human rights texts. The Court has interpreted these texts in its judgments, and in doing so has provided a vehicle for lawyers, activists and law teachers internationally to pursue rights in their respective locations. The Constitutional Court may be a South African institution, but its reach and its audience are international. We are members of that international audience.

We believe the JSC has a responsibility to do more than decide whether the President's nominee is "qualified" to serve as Chief Justice. Rather, the JSC's special task is to reach a judgment about whether the nominee will sustain the momentum of the rights revolution in South Africa. As law scholars in the United States, we are well aware that the individuals serving on the highest court of the country can profoundly change the direction of its jurisprudence, for good or for ill, without any change in the words of the Constitution. We fear that as Chief Justice, Justice Mogoeng will fail to build on the enormous efforts that have been made in South Africa to transform the lives of those subordinated and marginalized under apartheid. In particular, recent reports about Justice Mogoeng’s judgments in cases involving violence against women and the rights of sexual minorities raise concerns about his commitment to the values the Constitutional Court till now has protected under South Africa’s Constitution.

Is it a response to these concerns to say that this appointment is part of the transformation of the South African judiciary? We agree that South Africa's judiciary is, like South Africa itself, engaged in a complex and vital process of transformation. Moreover, the JSC has a special responsibility to further that transformative process. But this is not the issue here. We are especially concerned that President Zuma has made this decision while overlooking other jurists who not only have more substantial judicial experience than Justice Mogoeng, but have also themselves played important roles in South Africa's transition to democracy, and who fully embrace the transformative vision of the Constitution, including the current Deputy-Chief Justice Moseneke, who has served two Chief Justices.

We urge the members of the Judicial Services Commission to consider our perspectives even though we are located in the USA and do not live in South Africa. We may be far away physically but we feel a deep connection to constitutional developments in South Africa.

We respectfully submit these perspectives and thank you for your consideration.

Sincerely

Associate Dean Penelope Andrews, City University of New York School of Law

Professor Taunya Banks, Jacob A. France Professor of Equality Jurisprudence, University of Maryland  Francis King Carey School of Law

Associate Dean Stephen Ellmann, New York Law School

Associate Dean James Gathii, Governor George E. Pataki Professor of International and Commercial Law, Albany Law School

Professor Erika George, S.J. Quinney College of Law, University of Utah

Professor Mark S. Kende, James Madison Chair in Constitutional Law, Drake Law School

Professor Karl Klare, George J. and Kathleen Waters Matthews Distinguished University Professor, Northeastern University School of Law

Dean Makau Mutua, SUNY Distinguished Professor and Floyd H. & Hilda L. Hurst Faculty Scholar, Buffalo Law School

Distinguished Professor Ruthann Robson, City University of New York School of Law

Professor Kendall Thomas, Nash Professor of Law, Columbia Law School

Professor Lucy Williams, Northeastern University School of Law

[Institutions listed for identity purposes only]

A very important question about Harry Potter

2011-08-22T17:26:00.000-07:00

Spoiler alert: this post contains plot details from the last Harry Potter film and the final Harry Potter volume!

So after I saw the final Harry Potter film (Harry Potter and the Deathly Hallows Part 2), I went back to the text -- that is, the book. There are a bunch of differences. For instance:

In the book, Harry is looking for the diadem of Rowena Ravenclaw, which no person living has seen, and he has the idea of speaking to someone not living -- namely, a ghost. That idea belongs to Luna in the movie.

In the book, when Harry, Ron & Hermione need to escape from Gringott's, it's Harry who has the idea of grabbing on to a dragon to get them out of there. In the movie, Hermione has this bright idea.

In the book, Ron & Hermione tell Harry about their getting into the Chamber of Secrets to acquire basilisk fangs (for destroying the horcruxes in which Voldemort has secreted parts of his soul); Ron says he remembered, more or less, the words in Parceltongue -- snake language -- that Harry ad uttered when he got into the chamber some volumes back. In the movie, we actually see Ron & Hermione accomplish this, and the action comes complete with some sexually-charged banter that's part of the build-up of their becoming, beyond any doubt, an item.

All of these changes make Harry not quite so much the focus, and bring our attention to other characters in the story. On the other hand, in the movie the final fight between Harry and Voldemort seems to feature just the two of them, while in the book their duel takes place at the climax of, and in the same place as, the climactic battle in which everyone is involved. So in this respect the staging is more Harry-centric.

So what are we to make of these changes?

One answer is that there is a law of conservation of Harry: if his role declines in three smallish places, it must increase to an equal extent in one prolonged, crucial scene.

A second is that there are at least two ways to tell the story that are equally correct. And if two, why not three or more? The varying details of individual tellings still converge into a single fundamental narrative, the true essence of Harry Potter.

A third is that there is no single Harry Potter story. I said that I went back to the text, meaning the book, but who is to say that the book is the text? The movie is a text too. Of course Hollywood routinely distorts the texts of the books it turns into films, but here, as it happens, J.K. Rowling is both the author of the books and a co-producer of the movie. So she is, in some sense, a creator of both. If the true Harry Potter story is the story she created, she has created it twice, and in somewhat different forms. As poets sometimes rewrite their own poems years after their initial publication, so J.K. Rowling has revisited her own story. There are, therefore, at least two authoritative versions of the Harry Potter canon.

A fourth is that there is, after all, one and only true Harry Potter story: the book. When J.K. Rowling authorized variations from the book in the movie, she wasn't creating another authoritative version. Rather, she was just like all the rest of us as we encounter her books: she was interpreting them. J.K. Rowling had no more, and no less, license to retell the Harry Potter story than we do (except under copyright law), and her film reading of her own book is only an interpretation of the true text.

All of these arguments probably have analogies in biblical studies or constitutional law -- but I won't pursue them! The movie's fun, just as the book was -- and I hope this post doesn't spoil any of it for you.

Once more with feeling: who exactly are we?

2011-08-17T16:50:00.000-07:00

One more note (for now) on this topic, the subject of my posts yesterday and the day before.

There's now experimental evidence that we actually make certain decisions slightly before we become aware of having done so -- the circuits for taking action begin to fire before we report deciding. One question such evidence raises is about the actual function of the conscious mind; is it just the brake on ill-considered choices by other parts of our brains, or is it instead the rationalizer of them ( to persuade ourselves or others of the rightness of what we've already done), or does it come into play, perhaps, for some more complex set of decisions whose nature isn't captured by the experimental reports? But for now I'm not concerned with the question of what the point of consciousness is.

Rather, what's interesting about this evidence, in the context of the question of who exactly we are, is that it indicates that some part of us besides our conscious minds makes some of our decisions. Presumably that part of us also thinks about those decisions, in some way or other evaluating the pluses and minuses of possible courses of action. Perhaps this part of us thinks in very primitive ways, but it thinks. (Reflexes may not be examples of "thought," but my impression is that the decisions I'm focusing on are not so instantaneous as to be reflexive.) And "we" don't have direct access to those thoughts, until they emerge in the form of an already-made decision.

Perhaps these masked thoughts are available to us through dreams or psychoanalysis or both. But at the least it seems to be the case that anyone who has not achieved such access is operating partly in the dark about his or her own self. And it may be that even when we achieve greater (perhaps never complete?) access to our own thoughts and feelings, what we find is not that we are in fact a single coherent person after all -- just now visible at last -- but something more like a core personality and a periphery, made up of routines (emotions, thoughts, reaction paths) that actually aren't integrally connected to the rest of ourselves.

It's often said that we aspire to wholeness, and that age helps us to achieve this. But the corollary of these propositions is that for many of us, or for all of us in some respects, we are not in fact whole. "We" -- that is, single fully organized "I's" -- don't quite exist.

Who are we again?

2011-08-16T19:04:00.000-07:00

If it's unclear whether each of us is made up of cells of more than one species right now (the subject of my last post), it turns out that it's also unclear how many species each of us is made up of as a matter of genetics. In an article ("Annals of Evolution: Sleeping with the Enemy") in the August 15-22, 2011 New Yorker, Elizabeth Kolbert reports that it now appears that all humans except those whose ancestors never left Africa interbred with the Neanderthals they encountered as they (the humans) spread out, with the result that "all non-Africans, from the New Guineans to the French to the Han Chinese, carry somewhere between one and four per cent Neanderthal DNA" (page 71).

From this we learn two things. First, it is possible, in fact typical, for human beings to have within them DNA from another species. Does that make these human beings not human? Obviously not; these DNA-borrowing humans are most of the humans there are. (Whether the Neanderthals should be described as "non-human," by the way, is itself part of what's at issue -- what's the line between humans and non-humans? But as I understand it, even if Neanderthals are humans they're not our particular species of humans, homo sapiens.)

On the other hand, does the lack of this admixture of another species' DNA make someone not actually a human in the sense we should today understand the term? Again, clearly not. Hundreds of millions of members of our species don't have any Neanderthal DNA.

Matters seem likely to grow more complex -- that is, it seems likely that we will find more of these borrowings from other species. Kolbert reports the recent discovery of another non-homo sapiens species, the Denisovans (named for the cave in which a finger bone from the species was found) -- and it turns out that one group of modern humans, the New Guineans, share "up to six per cent Denisovan DNA" (page 74). Presumably this six per cent is in addition to their 1 - 4 % of Neanderthal DNA. And who knows who else we interbred with? As Kolbert emphasizes, it appears that we routinely interbred with those we were exterminating. (Did we exterminate the Neanderthals deliberately, or just as a byproduct of taking the fruit of the land away from them? We don't know. But it's hard not to think that the circumstances of our "borrowing" of DNA were very unpleasant.)

So it is quite possible for members of our own species to carry within them DNA from one, two, perhaps more other, closely related species. And different members of our species carry different mixes of DNA from these other species. Kolbert's article focuses on the search for whatever it may be that makes us distinctively human -- the genes that we have to have, and that those other species lacked. That's a useful search, but the fact remains that even if "we" are the beings who share this as yet unidentified characteristic, there are many things that we don't share with each other, and do share, apparently, with the members of other species, long extinct.

One more point: Suppose there is some genetic essence of humanity that distinguishes us from our close relatives -- the Neanderthals and Denisovans of the past, or the clearly not-human, but very smart, chimpanzees of the present. But once we've identified this essential spark of humanity, what about all the inessential details? Would genetically green hair take someone out of the human race, if he or she held the human spark? That seems implausible. What about webbed feet? Again, that change by itself doesn't seem to make a human being inhuman. But what's the boundary? It's clearly not genetic identity; after all, as Kolbert notes (at 72), there's a lot of genetic variation between members of our species (presumably even leaving aside the heritage of borrowings from other species by some but not all of our ancestors).

In short, it seems as though the definition of human is going to turn out to be an act of will rather than a fact of biology.

Who are we anyway?

2011-08-15T18:57:00.000-07:00

According to an article posted on the N.Y. Times website today (George Johnson, "Cancer's Secrets Come Into Sharper Focus," August 15, 2011):

As they look beyond the genome, cancer researchers are also awakening to the fact that some 90 percent of the protein-encoding cells in our body are microbes. We evolved with them in a symbiotic relationship, which raises the question of just who is occupying whom.
“We are massively outnumbered,” said Jeremy K. Nicholson, chairman of biological chemistry and head of the department of surgery and cancer at Imperial College London. Altogether, he said, 99 percent of the functional genes in the body are microbial.

It seems to me that this report raises some question about just who "we" are. I admit I'm not at all expert on any of this, so what I'm saying here is frank speculation. In particular, I'm not sure what portion of human body cells are not protein-encoding, but one possibility is that all human body cells do this, so that what these researchers have found is that most of the cells inside our body are not human cells. If some human cells aren't protein-encoding, that would change the percentage of all cells inside us that are human -- but that would alter the point I'm making only in terms of percentages.

If, again, most cells inside us aren't human, and yet they are integral to us, and part of our daily operations, are they part of us? Suppose, as the article also suggests, that the human cells and the microbial ones may be in chemical communication, and this communication is integral (in some way we don't yet understand well at all) to our daily functioning. Should we say these nonhuman cells are no more "us" than inanimate oxygen or water molecules? But we are made up of inanimate molecules, rendered part of animate beings; the molecules are us. Are we equally made up of other animate beings? I've often thought that it is odd that we are made up of animate cells -- our own, human cells -- that somehow don't count as beings in their own right even though they live and die. But now we're talking about being made up of other beings, independent (though tiny and obscure) beings.

This feels rather weird, but it's not inconceivable. If tremendously powerful computing machines can be created by linking multiple separate machines together, it is conceivable that powerful beings can be created by somehow corralling multiple separate beings. We're accustomed to think of "us" as unities, but perhaps that's a mistake, and we're more like "products" of combining parts.

I'm not certain whether it matters what we're made up of -- whether we as composite creatures behave differently than we would if we were single unities, or whether we have different moral obligations. But the intuitive feeling I have (or "I" have) is that the fuzzier we are as beings, the more we should resist any simple prescriptions about what we must be or do. Even if that's not true, it's hard not to wonder who we are -- and I expect I'll be saying (speculating) more about this little matter in future posts.

The Constitutional Court and the (relative) permanence of the Constitution

2011-08-06T14:01:00.000-07:00

The Constitutional Court's decision in the Justice Alliance of South Africa case is a ringing defense of judicial independence and the separation of powers, and I hope will prove to be a lasting part of the foundation of South African constitutionalism. But precisely because of its importance, it deserves not just praise but also analysis.

As I wrote in my first post on this case, the case decides both that the President lacked authority to extend the Chief Justice’s term, as he had in fact tried to do, and that Parliament could not authorize an extension of just the Chief Justice’s term. The first of these, I believe, is easier to justify than the second.

As to the first, the prospect of the President having an unguided discretion to extend the term of office of the Chief Justice was, as the constitutional Court unanimously recognized, deeply threatening to judicial independence. It was, moreover, by no means dictated by the text of the Constitution, which permits the extension of a judge's term by legislation. As quoted in the case, section 176(1) of the Constitution provides:

A Constitutional Court judge holds office for a non-renewable term of 12 years, or until he or she attains the age of 70, whichever occurs first, except where an Act of Parliament extends the term of office of a Constitutional Court judge.

Obviously the discretionary choice of the President is not itself an “Act of Parliament,” but Parliament had legislated, to authorize the President to ask the Chief Justice to stay on. That delegation (as the Constitutional Court rightly termed it) was not necessarily unconstitutional. Like the US constitution, South Africa's (the Constitutional Court explains) permits considerable delegation of authority to the Executive to carry out Parliament's directions. But it is reasonable to say that some crucial powers and duties cannot be delegated (though it has been about 80 years since the US Supreme Court found a breach of our so-called "non-delegation doctrine"), and reasonable as well to view the extension of the term of office of the country’s top judicial officer, the Chief Justice, as one of them.

But the second question, whether Parliament could choose to extend just the Chief Justice's term, seems to me a closer call. Parliament hadn't done that yet (it had authorized the President to do it, but that statute fell for the reasons because of the delegation problem just discussed), and so in the US this question likely wouldn't have been ruled on. But such legislation was before Parliament (paragraph 16), and the government asked the court to determine whether it would be within Parliament's constitutional power (paragraph 70). The court took up the issue, and ruled that the Constitution simply did not authorize any extension of judicial terms that treated the Chief Justice differently from the other members of the Constitutional Court.

There were strong separation of powers arguments in favor of this conclusion too. But the relevant constitutional text offered less support. As quoted above, it explicitly provided for “an Act of Parliament extend[ing] the term of office of a Constitutional Court judge.”

Seven justices concluded that this language authorized no distinction between a Chief Justice (or Deputy Chief Justice) and other justices of the Court. (Three others believed parliament could make such a differentiation, but that the record didn't justify its having done so here (paragraphs 95 – 96); I'm not sure the record was sufficient to rule on justification if that was the issue -- but I won't pursue this minority rationale further here.)

The majority justices argue that the Chief Justice is, as a member of the Court, indistinguishable from the other justices -- so that no constitutionally relevant basis for special treatment can exist. This is a somewhat problematic argument. The Chief Justice clearly has administrative responsibilities as head of South Africa's judiciary, and may have “to represent the judiciary and to act on its behalf in dealings with the other arms of government” (paragraph 78), all responsibilities that the regular members of the court don't share. He or she may also have some internal authority in the day-to-day life of the Court; the judgment doesn't speak explicitly to this possibility. In any event, the judgment itself says that the chief justice is "primus inter pares" (first among equals) (paragraph 82), and that somewhat paradoxical phrase itself suggests there is some difference between the Chief justice and the other judges.

So why couldn't Parliament act on that difference? The court's answer is that the constitution must be interpreted "restrictively," so as to protect the separation of powers. (Paragraph 67) Because the power to single out just the Chief Justice for extension risks compromising his or her actual or apparent independence, the constitutional authorization for extension “must …, on general principle, be construed so far as possible to minimize the risk that its conferral could be seen as impairing the precious-won institutional attribute of impartiality and the public confidence that goes with it.” (Paragraph 75).

But what can Parliament do to change this separation of powers structure? It appears that Parliament thought that its 2001 amendment of section 176(1) (which, as the Court explains at paragraph 2, added the language about extension of terms in the text as quoted above) did give it the discretion to enact legislation treating the chief justice differently, but as I noted in my previous post the court says that what Parliament thought its amendment meant isn't the issue. (Paragraph 60) It seems to follow that Parliament can only amend the constitution in a way that weakens the separation of powers if it does so with a clarity that judicial interpreters cannot reasonably ignore.

This is not an assertion that the Constitution is unamendable -- a beguiling but undemocratic doctrine. Rather, the Court's position, I believe, is that the constitution as a whole carries a meaning that cannot be shifted easily -- and that the judiciary is specially responsible for discerning.

It seems to me that it is indeed a crucial part of constitutionalism that the meaning of the constitution must be more than simply a translation of the latest public opinion polls. Just how much more, however, can be debated. The approach the Constitutional Court has taken might not be a wise doctrine at all in a nation such as the U.S., where changes in the constitutional text are few and far between, and perhaps should get correspondingly greater weight when they do occur. But the American constitutional problem in a sense is that our text is too permanent – hence the constant struggles over whether and how to adapt it to modern circumstances and issues. In South Africa, by contrast, the ANC’s electoral strength is still very great, and the barriers to constitutional amendment (though real) are in general considerably less severe than those of the U.S. constitution. Amendments are quite possible and have been quite frequent in the country’s first decades of constitutionalism.

Moreover, South Africa does not yet have two hundred years of constitutional history to help shield its constitutional guarantees from dilution. No one ever knows whether a constitutional order will survive and flourish, but (as others have observed) in a new constitutional state the uncertainty is probably more acute than in a more established setting. The task of establishing relative permanence is a key South African constitutional problem, and the Constitutional Court here has attempted to meet it.

It seems quite fitting, in the end, that in a case about the independence of the judiciary the Constitutional Court has insisted as well on the strength of the overarching spirit of the South African constitution. Only time will tell whether the Court’s stance secures its position, and the constitution it guards, against political intrusion or makes both even more of a target for such intrusion than they might otherwise have been. But we should admire the effort and hope for its success.

South Africa's Constitutional Court defends the rule of law

2011-08-02T19:19:00.000-07:00

Last Friday, July 29, 2011, the Constitutional Court of South Africa held in the Justice Alliance of South Africa case that the extension of the term of its own Chief Justice was unconstitutional. Even before the Court's decision, the Chief Justice had announced his own decision to rescind his acceptance of the extension -- with the result that he will retire at the end of the day on August 14.

The Court made three critical decisions:

(1) That although the Constitution permitted Parliament to extend a Constitution Court judge's term by legislation, that legislation could not leave it up to the President to decide whether or not to make the extension as an exercise of unfettered executive discretion -- as the statute under which President Jacob Zuma had acted did;

(2) That even if Parliament itself had made the decision to extend the term, it could not single out a single judge -- even the Chief Justice -- for an extension, as the statute in question also did, but instead had to exercise its legislative authority in a way that could apply to all members of the Constitutional Court; and

(3) That the asserted need to keep the present Chief Justice in office did not, under all the circumstances, justify the Court's suspending its order declaring that the extension was unconstitutional and invalid in order to give Parliament time to fix the problem by passing new legislation.

This is an important, and poignant, decision. One must feel some sorrow for Chief Justice Ngcobo, an admired jurist with a long record of distinguished service, who could have prevented the case from arising by declining the President's offer of an extension, but who wound up resigning in the midst of litigation in which he was a named respondent (though he took no part in the case). No party impugned his integrity, but this was surely a painful way to conclude his judicial career.

At the same time, it is quite clear that President Zuma brought this constitutional crisis on himself. When the previous Chief Justice, Pius Langa, resigned, Zuma could have appointed Deputy Chief Justice Moseneke, another admired jurist (and, I'm happy to say, a friend of mine), as Chief Justice -- as Deputy Chief Justice Langa had been appointed Chief Justice after the resignation of his predecessor, Chief Justice Arthur Chaskalson. Zuma chose to pass over Moseneke, a decision that he had the constitutional power to make, but that also seemed a direct result of the suspicion of the African National Congress, Zuma's party, that Moseneke might prove too independent. In South Africa, however, the justices of the Constitutional Court do not serve for life, but rather for a limited number of years, and Ngcobo was already nearing the end of that term when he became Chief Justice. So, quite soon, Zuma faced the possibility of Ngcobo's departure -- with Moseneke still on the Court. The extension Zuma proposed in response, and that Ngcobo initially accepted, would have continued Ngcobo in office for five more years.

Although the idea that a Court might rule on the constitutionality of the extension of its own Chief Justice's term may seem remarkable, it is very much in the tradition of South African constitutionalism. South African courts do not shrink from ruling on constitutional issues -- in sharp contrast to American courts, which quite often conclude that they cannot or should not resolve genuine constitutional disputes.

While it is not surprising that the Court was prepared to rule, the decision is still important and brave. The decision was a unanimous one, joined by all 10 justices sitting (Ngcobo himself naturally did not take part in the decision). It was announced in the name of "The Court" rather than attributed (as I believe the great majority of the Constitutional Court's decisions are) to a particular justice. On one point, the judgment reports (paragraphs 95 - 96) , three justices reasoned differently from their colleagues, but they are not named and the impact of the judgment as a whole is emphatically to assert the justices' unanimous rejection of the government's action. And that set the Court, perhaps more clearly than any other decision to date, against the strongly felt wishes of the President and the governing party.

The judgment eloquently explains why. Before analyzing the specifics of the particular constitutional provisions at issue, the Court emphasizes the central constitutional commitments to the separation of powers and judicial independence. (Paragraphs 20 - 40) Here, as the Court goes on to explain, what is at stake is the independence of the judiciary -- in a South Africa where the ruling party's commitment to the rule of law has seemed increasingly frayed. If the President, or Parliament, can choose to extend a single justice's term in office, then that person can be tempted by the prospect of an extension (paragraph 73), and so judicial independence can be compromised.

This fundamental point is, I think, entirely right. But it does not necessarily follow that the Court's decision is correct, because it might have been concluded that the Constitution did not protect judicial independence as fully as it could and should have. The text of the document did not in express terms rule out what Parliament and the President did; to determine the constitutionality of the statute Parliament had passed and of the action the President took under it, the Court had to interpret language that could have been read in more than one way. Essentially the Court said that the Constitution as a whole protects judicial independence from encroachment by the other branches, and so the particular section of the constitution at issue should be read in that same spirit. Again, I think that judgment is important and appropriate.

But I do want to discuss one particular detail of the Court's reasoning, with which I have more difficulty. The fact was that Parliament amended the relevant section of the Constitution at the same time that it enacted the legislation that the Court now holds unconstitutional. Parliament amended section 176(1), which specifies the term of office of members of the Constitutional Court, to add for the first time the possibility of an extension, which could occur "where an Act of Parliament extends the term of office of a Constitutional Court judge." (Paragraph 25). At the same time, Parliament enacted the statute that permitted the President to decide whether to ask the Chief Justice to agree to an extension of his term. One might say, therefore, that Parliament must have believed that its statute faithfully implemented its simultaneous amendment of the Constitution.

To this argument the Court responds (paragraph 60):

This contention cannot be supported because the fact that the two provisions were enacted at the same time is not relevant in assessing whether particular legislation is compatible with its empowering provision within the Constitution. The contention is faulty for yet another reason. It implies that the way in which Parliament understood the constitutional amendment that it approved is binding on the manner in which this Court must interpret the amendment. It cannot be so. Even if it were possible to arrive at this result, we are obliged to determine objectively the meaning of the constitutional provision irrespective of the meaning as perceived by Parliament.

As a matter of constitutional theory, I am uneasy with interpretation that rests on the view that the words of the text have an objective meaning that is wholly independent of the meaning that those who enacted the words believed they carried. Perhaps the Constitutional Court has not quite adopted that view. But in any case this is a debatable point of theory. What may be most striking is how sharply the Court has chosen to differentiate its constitutional role from that of Parliament. The force of the language is reminiscent of the United States Supreme Court's emphatic assertion of judicial supremacy in the desegregation case of Cooper v. Aaron (1958). There the Supreme Court rejected an argument that Arkansas state officials were not bound by the earlier case of Brown v. Board of Education (1954), and cited the foundational case of Marbury v. Madison (1803). "This decision," said the Court,

declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

That language reflected our Supreme Court's sense that it was locked in a crucial struggle, in which it had to declare its authority unmistakably. Perhaps the language the Constitutional Court of South Africa used reflects just the particulars of the legal problem before it, but the intensity of the Court's words seems to hint that the Constitutional Court has arrived at a conclusion like the one reached by the U.S. Supreme Court in Cooper v. Aaron. It is good that the Court is prepared to speak so firmly for its constitutional vision; it is sad indeed that it has had to do so.

A further look: Do clinics help law students develop professionalism? -- Part II

2011-07-27T18:35:00.000-07:00

As I wrote in my previous post, Carole Silver, Amy Garver and Lindsay Watkins report in their wonderfully rich paper (available from a link on the Best Practices blog) that, among third-year law students surveyed with beta questions in the Law School Survey of Student Engagement (LSSSE), no one feels that law school contributed to their growth as professionals more than those who took clinics do. But what do these students say they learned in clinics?

One way to answer that question is to look at the surveyed students' responses to another of the beta questions put to them:

In your experience at this law school, to what extent have you found the following settings effective for learning legal ethics? (Very much, quite a bit, some, very little, not applicable)

(a) Doctrinal classes

(b) Professional responsibility classes

(c) Clinics

(d) Paid legal work

(e) Externships or summer internships

In what follows, I interpret students' answers to this question as giving their judgments on how much, or how effectively, these five different "settings" contributed to their learning legal ethics, though the phrasing of the question is slightly different.

How valuable do students find clinics as settings for learning legal ethics?

Here is a first answer to this question, derived from the students’ answers to this beta survey inquiry: 51 percent of the responding students felt clinics contributed "very little" to their learning legal ethics. (11) That's startling. In fact, it is the highest negative score for any of the five settings. But what it turns out to mean is, in large part, that students who haven't taken clinics -- including in particular first-year students, who likely haven't yet been eligible to do so (since clinics are usually upper-year courses) -- don't recognize their value. 1L's rate clinics as a 1.46, about half-way between "very little" and "some." 3L's, in contrast, rate them at 2.63, a bit over half-way between "some" and "quite a bit." (13)

Interestingly, the higher 3L rating is not a result of a general impression shared by all 3L's. Those 3L's who've never taken a clinic still think poorly of them as settings for learning legal ethics (average scores of 1.51 or 1.67, the latter from students who didn't take a clinic but did have paid legal work experience). 3L's who did take clinics, on the other hand, score them much higher (average scores of 2.93 or 2.77, the latter from students who both took a clinic and had paid legal work experience). (15)

(A parenthetical issue of definition: The authors refer to students who "did a clinical experience." I take that to mean "took a clinic course," but the phrase could be read to encompass non-course experiences such as volunteer legal work. I also take it to refer, at least primarily, to live-client clinics, but "clinic" is a term with potentially broad definitions. At a couple of points (14, 21) the authors mention clinics using simulations, and these comments may imply that simulation courses fall in the "clinic" category here. “Externships or summer internships” are a separate “setting” category in this study, as reflected in the beta question quoted above.)

Let’s look a little more closely at those ratings of clinics from students who did take clinics. 3L's who took a clinic but didn't have a paid legal job gave clinics an average score of 2.93 as a setting for learning legal ethics, just below the "quite a bit" level. Their peers who also had a paid legal job gave clinics an average score of 2.77, a little further below "quite a bit." 2.93 and 2.77 are definitely good scores, but they aren't a 4, which would have meant that students saw clinics as contributing "very much" to their learning professional ethics. Nor are these the highest scores students gave to any setting, as we will see below.

Given the concentration on issues of ethics and values in many clinics, these scores are a bit surprising. What might account for the scores not being higher? Perhaps what's clearest is that 3L's do not see any law school setting, including clinics and jobs, as overall contributing "very much" to their learning legal ethics. The highest score any group of these students gave to any setting was in fact a 3.0 (“quite a bit”), the rating given to the professional responsibility course by students who had taken a clinic and had paid legal work. (15)

One possible explanation is that law students fail to realize how much they are learning. The reason need not be any fault on the students' part -- though one could of course speculate about students' yearning for "the answer," quick and clear – but instead might simply reflect the reality of the incremental nature of learning and understanding. The authors emphasize a finding that students increasingly see professional ethics benefit in all settings – except doctrinal courses – as they go through law school, and cite this as "some evidence that law students learn to 'connect the dots during their time in school with regard to understanding that the notion of 'legal ethics' transcends a variety of settings." (13) Perhaps this process isn't complete in the third year, and students will only recognize the full value of what they've learned years later.

Another possibility, of course, is that none of the settings law students experience does teach as much about professional ethics as we might like. Professional responsibility classes may be too dry and legalistic. Clinics may be too focused on the complexities of individual cases to give students a sense of broad understanding. Student jobs, as the authors point out (14), may be focused on legal research rather than on a "sufficiently big-picture exposure." We don't know.

What we do know is that 3L's who took clinics viewed their classroom professional responsibility courses as having as great an impact on their learning professional responsibility as clinics, or even slightly more. Specifically, 3L's who took clinics and didn't have paid legal work experience rated clinics and PR courses almost identically (2.94 for PR classes, 2.93 for clinics). Those who had both clinical and paid legal work experience rated the PR course at 2.98, clinic at 2.77, and their paid job at 2.89. (15) And 3L’s who took clinics didn’t even report that clinics were vastly more effective in teaching them about legal ethics than regular doctrinal courses (other than the professional responsibility course), which they rated at a 2.5. (15)

And so we come to the study's very intriguing result: 3L's who took clinics felt their law school experiences were more valuable in helping them grow as professionals than their peers did, but they did not report that clinics were the way they learned the most about ethics. How can this be? The authors are well aware of the problem; as they put it, “our findings suggest that clinical experience may enhance learning legal ethics, but more research is necessary to confirm the direct relationship.” (15) The next section of this post offers some hypotheses to explain these findings.

If clinics were not uniquely valuable for teaching legal ethics, why were they uniquely valuable in enhancing students’ appreciation of all settings’ value for this purpose?

One possible explanation is that these students understood ethics as a narrower field than the range of professionalism factors, as the authors speculate at 17. If this is so, then it might be that if they had been asked which of their experiences contributed most on these broader factors, their answer would have been clinics.

But another possibility is that the effect clinics had was not so much to teach students particular lessons as it was to alert them to the importance and value of learning. If, we might guess, what clinics did above all was to convince students that they had a huge amount to learn in order to undertake the work of a lawyer, then that realization might have caused those students to take every course in which they were enrolled more seriously. At that point, the students might have been right to value the professional responsibility course slightly more than clinics themselves for professional ethics – probably few clinics undertake comprehensive reviews of the rules of ethics, and professional responsibility courses can be precisely designed to do just this. Once a student realizes that the subject-matter of professional responsibility is important, the PR class may be the place to learn most of it. As the authors say, "[g]enerally, these findings point to the importance of law school classes for effective learning about legal ethics, and also to the role of clinical legal education as a means for deepening the effectiveness of these lessons." (21) We should remember, though, that even the PR course rates only as of "quite a bit" of value; providing students with multiple opportunities to learn this subject may be essential given that no one setting seems to completely provide the opportunity students may be looking for.

It’s striking, too, to remember the point with which we began: Those who took clinics liked almost everything better; those who did not, in comparison, found almost everything less helpful. In other words, those who got engaged in the study of law realized that their schools were delivering a lot to them; those who held themselves apart missed what was going on around them. Most of the 3L students surveyed at the 38 schools where these beta questions were asked did take clinics, and many took clinics and worked in paid legal jobs (in Figure 8, at 20, 2134 3L's had taken clinics, including 1012 who had taken clinics and held paid legal jobs). The minority who did neither or whose only exposure to practice was in paid jobs (in this same figure, 431 had done neither, along with 348 who had jobs but no clinical experience) were, according to their own reports, losing a lot of what was on offer.

Was this energizing effect simply the result of contact with the world of practice? As already suggested, the answer seems to be "no." Both clinics and paid legal work expose students to the world of practice, but as the authors observe (21), students who were exposed only via paid legal work were not as energized as those whose only exposure was via clinics. Clinic-only 3L's, compared to job-only 3L's, found more value in their doctrinal courses and in their professional responsibility courses – as well as in clinics, unsurprisingly. Also unsurprisingly, job-only students saw more value in jobs than clinic-only students did, but the clinic-only students saw more value even in jobs than did 3L's who did neither a clinic nor paid legal work. (15)

Admittedly, these data do not tell us clearly which way the cause-effect sequence runs. Could it be that students who are energized tend to take clinics, rather than that students who take clinics tend to get energized? In the nature of things, no doubt both processes are at work, but it is worth considering which process is more dominant. If clinics are more the pathway than the impetus, after all, we should consider whether other pathways could also be devised; one possibility, for example, is the increased use of externships and summer internships. (The study reports limited, but tantalizing, data on externships and internships (13): for 3L’s as a whole (including those who had no clinic or paid legal work experience), externships and internships ranked as somewhat more valuable settings for learning legal ethics than either clinics or jobs. The data available now do not permit the authors to correlate students’ assessments of settings with whether or not they themselves had externship/internship experience, but the authors hope to add questions in the future to permit such analysis. (14 n.56)) Still, in another sense this issue isn’t so important; even if clinics are merely a pathway, they are that, and law schools urgently need pathways that their energized students can follow.

All that said, I would be very surprised if clinics were merely the pathway; that idea would imply that students arrive at their upper years in law school either “energized” or “unenergized,” and nothing that happens thereafter affects that. But people change all the time. It’s implausible to imagine that the opportunities in clinics aren’t affecting those who take advantage of them. The 1L’s who view clinics so negatively include those students who will subsequently take clinics and will, by their third year, view clinics quite positively; those more positive 3L’s, therefore, are not simply the people who recognized the value of clinics from the start. If students learn to value clinics more as a result of taking them, it seems reasonable to infer that the more general energizing effect I’ve hypothesized is also something that largely results from taking clinics rather than the other way around. Indeed, the authors have observed that their data “indicate that in each year of law school, students increase their evaluation of effectiveness for every setting except doctrinal classes.” (13) It appears – though the authors do not speak to this precise point – that the greatest such increase is the increase that occurs among the students who take clinics.

‬Clinics thus do appear to be specially energizing. It’s worth adding that there is some evidence also of a synergy between clinics and paid legal work. Those students who had both experiences were slightly more positive than anyone else about doctrinal classes and professional responsibility classes, and considerably more positive about the value of paid legal work. The only setting for which this group was not the most positive was clinics, but this group was still decidedly affirmative about clinics too (2.77 compared to clinic-only students' 2.93). The paper does not provide aggregate overall effectiveness scores for students with different experiences, but it seems that the students with both clinic and paid work were the most satisfied group.

If there is such an energizing effect, how does it operate? The authors suggest that students “learn to ‘connect the dots’ during their time in school” (13), and I would agree that part of what is happening is this sort of cognitive change. But few things happen without motivation, and so I am inclined to see the energizing as resulting also from students’ excitement, focused ambition and, no doubt, anxiety – all of which, along with new intellectual appreciation, the experience of the clinic may foster. If that’s what clinics do, how do they do it? The authors ask many valuable questions about this (21), and it is a very important issue. If we can figure out which clinics produce these effects, and from what aspects of their work, we’ll be better positioned to shape the curricula of the future.

Do clinics help students develop professionalism?

2011-07-23T10:40:00.000-07:00

What do clinics teach, and how? These are important and mysterious questions. A forthcoming article by Carole Silver, Amy Garver and Lindsay Watkins, Unpacking the Apprenticeship of Professional Identity and Purpose: Insights from the Law School Survey of Student Engagement (available from a link on the "Best Practices in Legal Education" blog), confirms the value of clinics but underlines how much we don't know about how that value is created. Relying on "beta" questions posed to students at 38 accredited law schools as part of the Law School Survey of Student Engagement (LSSSE), the authors sought to measure students' own judgments about how much "your experience at this law school contributed to your development" in several areas of professionalism. (7, 23)

What they found, focusing on data concerning full-time third-year students (3L's), was that "students with a clinical experience, whether or not they also had paid legal work experience, reported higher positive gains across each item of development." (21) 3L's with clinical experience reported higher gains than their peers who had no clinical coursework, even if the no-clinic students had held paid legal jobs. In fact students who took clinics but didn't have paid legal work experience reported almost the same impact on their growth as students who took clinics and did have paid legal work experience as well; the paid jobs didn't seem to add much at all to the impact of the clinic by itself. On these measures, it seems, quite simply, that the most effective way to foster students' professional growth is for them to take clinics.

Now one might quarrel with the idea of self-reported development. Will anyone say that he or she failed to develop? Perhaps not, but the question did not ask that; it asked whether "your experience at this law school contributed to your development" -- so a student could report that her experiences had not contributed without thereby saying that she herself had not developed. In any event, the responding students did give nuanced answers. The students responded to the five questions put to them by, on average, putting their development on each criterion at between 2 and 3 on a 4-point scale -- and some students reported less development than others did. Those 3L's who never held a paid job or took a clinic reported development scores on the five different criteria ranging from 2.05 to 2.58; those who took clinics reported scores from 2.39 to 2.81. (21) On each question, moreover, there were sizable percentages, sometimes majorities, of students who reported that their experience at law school had contributed only "some" or "very little" to their development. (18)

Finally, it's important to remember that even if all the students overestimated their own development, those 3L's who took clinics reported more impact on their development than those who did not have a clinic course. It might be argued that these data show only that students who took clinics developed particularly unrealistic impressions of their own development -- but there's no apparent reason why that should be so. (The authors don't provide similar tabulations for 2L's, but 3L's are the students most likely to have actually had either clinical or work experience, and so are the ones most likely to manifest the impact of the full range of possible law school experiences.)

Moreover, the five professionalism criteria seem to capture some important aspects of growth towards a professional identity. Students were asked (23) how much their experience at their law school had contributed to their development in:

(a) Building positive relationships with your future clients
(b) Deepening your capacity for moral reasoning
(c) Preparing you to handle the stresses of law practice
(d) Strengthening your commitment to serving the public good
(e) Acting with integrity in both personal and professional settings

It's not absolutely clear to me that all students should "strengthen their commitment to serving the public good"; some students might already be fully committed, and not need that commitment strengthened, and it's even possible that some students might come to feel they had been too self-sacrificing and might -- perhaps even rightly -- conclude that they should pay more attention to their own needs and less to the abstract "public good." But my hesitation on this score may not have been shared by many students, for 83 % said that their experience in law school had strengthened this commitment "some," "quite a bit" or "very much." (18) And overall these five criteria certainly mark significant achievements for students moving into professional life.

Since the LSSSE data suggest that clinical experience lays the groundwork for improvement on important aspects of professionalism, these data offer an important reason to value clinics. But in my next post I'll turn to the puzzling question of exactly what students learn in their clinics.

Learning the feel of success in law school

2011-07-22T14:43:00.001-07:00

What do students need to learn in law school to prepare them for the practice of law? Often the answer to this question is a listing of areas of knowledge or of practical skills -- and certainly those are important. But perhaps what students learn about themselves is also important. Again, it could certainly be argued that self-understanding and psychological insight are part of the wisdom that people need for their adult lives, but in this case I'm not referring to such forms of knowledge. Rather, I have in mind a much blunter form of self-understanding: the knowledge that you are a winner. The importance of this knowledge is an important lesson of Richard Sander and Jane Yakowitz's essay, The Secret of My Success: How Status, Prestige and School Performance Shape Legal Careers.

Sander & Yakowitz would endorse this point, I suspect, but their focus is somewhat different. The importance of this self-understanding emerges, however, from the authors' striking argument that grades matter. This position actually isn't self-evident. Sander & Yakowitz note, for instance, "the (correct) insistence by many observers that firms do not consult law school transcripts in making partnership decisions." (24 n.35) There's little doubt that firms consider grades when making initial hiring decisions, but the point of those observers' "insistence" is that after the initial hire, success or failure is determined by performance and grades are forgotten. The authors point out (24), however, that if success (measured in admittedly "conventional" terms (42) such as making partner in a law firm) actually does correlate markedly with grades, then apparently the grades are capturing something that fuels lawyers' lifetime achievements even though no one actually pays attention to the grades themselves after the lawyer gets his or her first job. Much of their article, in turn, makes the case that grades actually predict future success more powerfully than all other indicators, notably include the prestige of the student's law school.

What is that "something" that grades reflect? Sander & Yakowitz don't try to tease this out fully, but what they say makes sense. First, "high grades are shaped by individual characteristics that perhaps no other easily measured characteristic of lawyers can capture: drive, energy, clarity of thought, and perhaps a facility for good legal analysis that isn't captured well by the LSAT." (41) This explanation by itself might imply that these characteristics are fixed qualities that the future lawyer brought with him or her to law school; all that grades do is reflect their presence.

That, however, is not Sander & Yakowitz's full answer. They also say (again at 41) that "grades reflect one's relative intellectual location in a law school's incoming student body, and how that location influences what one learns and with what level of analytic mastery and confidence one emerges from law school." This statement implies that where a law student stands compared to his or her fellow students on the first day of school affects the grades he or she will earn. A relatively stronger student, the authors seem to be saying, is likely to become part of a "virtuous cycle," in which success builds on success, and to emerge from law school with grades that affirm his or her confidence, and with confidence that will shape the coming steps of the new lawyer's career.

Does it really matter that much how a student compares with his or her colleagues on day one? Using a large longitudinal data base from a study of law students in the 1990s, Sander & Yakowitz look at those students who were "admitted to their first choice school but did not attend it, often for geographic or financial reasons." The authors infer that these students probably have the same strengths and weaknesses as those students who were also admitted to their first choice schools and did choose to attend them. But it turns out that the students who go to their first-choice school, generally more "elite" than the lower-choice schools, get somewhat worse grades than those who didn't choose to attend what the authors refer to as their "reach" schools. (25-26) Perhaps the competition at the first-choice schools tends to be harder -- student bodies at American law schools are evidently sharply stratified on measurable criteria such as LSAT (4-5) -- and so the students who "reach" to the more elite schools are less likely to do well there than their equally able peers who choose to attend less elite institutions.

Sander & Yakowitz draw from this finding the conclusion that the net result of attending the reach school -- despite its higher prestige -- may be to weaken the student's future prospects as a lawyer. (36-37) This may be so, though the authors acknowledge that the exact extent of the grade-depressing impact is uncertain, and emphasize that they are comparing only plausible choices (a 20th-ranked school against a 40th, for instance -- not # 1 against # 200).

I'm more interested, however, in the apparent indication that the experience of success in law school -- even at a less elite law school -- propels the law graduate's professional trajectory. Whether or not that fact should shape applicants' choices of which school to attend, it may also have implications for schools' thinking about what programs to offer. The experience of success, even at a less elite school, fuels the graduate's achievements even after graduation, when he or she must meet the competition of the graduates of every law school. Something about success seems to make students stronger, lastingly stronger, than they otherwise would have been.

So if we ask, what is it that students need to learn in law school to prepare for the practice of law, one answer seems to be that they need to learn that they are people who succeed. Once they learn this, it's more likely to be true. They will use their abilities better -- and if (as I believe) human abilities are not simply fixed quantities but are a combination of initial capacities and lifelong refinement, they will actually come to have greater abilities as well.

And what does this mean for law school programs? It must be admitted that it counsels against such beguiling reforms as widespread use of pass-fail grading; if students cannot perceive their success, as compared to their peers, they perhaps cannot earn this success boost. But I do not think it follows that schools must relentlessly produce a single hierarchy so as to give their successful students that boost. One might well argue about the morality of such a system, in which a few were assured advantage at the expense of the many, and I hope that no such choice is necessary.

Demanding standards are necessary -- but there are many such standards, and many avenues for achievement. A law school whose students win moot court competitions is giving its students a hard-earned experience of success. A law school whose students win cases in their clinics is doing the same. A law school that insists on drafts and redrafts until a paper achieves a measure of excellence is too. Or so, at least, we may reasonably assume: provided that multiple avenues of success do not result in devaluing each individual measure of success, we should aim for multiple paths on which students of diverse skills and inclinations can find their strengths.

Finally, of course, we should not simply assume this happy harmony, but should examine whether it in fact can be achieved. Whether multiple channels of success actually have the same kind of effect as the single hierarchy of grades is an empirical question, and one that -- like so many others bearing on legal education -- deserves research.

Being the subject of the New York Times' attentions

2011-07-20T16:04:00.000-07:00

My school, New York Law School, recently was. To my mind, the article is noteworthy for its seeming indifference to what we, and other schools, do -- namely to teach law. The article's focus is on the business of law schools, a topic that certainly deserves attention, but unfortunately that broad topic doesn't get very much attention, because the author seems preoccupied with a critique of our dean, Rick Matasar. The result is painful to read, not only because the author gets so much wrong about New York Law School, but because I don't know of anyone who cares more deeply about reforming American legal education, and protecting the interests of law students, than Rick Matasar. For Rick's response, which speaks both to issues of general philosophy and to what we at NYLS are actually doing, see this post on our school website.

It is not easy to refute an article in the New York Times. Americans are fortunate, really, that we have some newspapers with the institutional resources and reputation of the Times, and fortunate as well to have a constitution that protects the freedom of the press as firmly as ours does. I applaud the overall institutional picture. But when a powerful voice speaks, those less powerful -- not just ordinary individuals, but even ordinary institutions such as a law school -- must struggle to speak back. And when an institution with power makes mistakes, those mistakes are felt and not easily corrected. This post is one contribution to that effort at correction, but also simply an observation that power matters, even in the marketplace of ideas.

The House of Representatives' "affirmation" of our armed conflict with Al Qaeda and others

2011-07-19T15:19:00.000-07:00

Here is the text of section 1034 of the National Defence Authorization Act for Fiscal Year 2012. That bill was passed (the vote was 322-96) on May 26, 2011 by the House of Representatives; a proposed amendment which would have deleted this particular section was defeated by a much closer vote of 234-187:

SEC. 1034. AFFIRMATION OF ARMED CONFLICT WITH AL-QAEDA, THE TALIBAN, AND ASSOCIATED FORCES.

• Congress affirms that--

◦ (1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;

◦ (2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note);

◦ (3) the current armed conflict includes nations, organization, and persons who--

▪ (A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or

▪ (B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and

° (4) the President's authority pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.

This proposed legislation has been sharply attacked by the ACLU as a sweeping expansion of the war on terror. Since the bill was passed by the House, it now awaits Senate action -- presumably postponed by the ferocious fight over the debt ceiling. But once we escape (or fall into) bankruptcy, this issue will be back. It's been the subject of a lot of discussion already, but I think it's still worth a close look.

To begin, I want to focus on an odd feature of the legislation: It isn't, in so many words, an authorization for the use of military force as provided for in the War Powers Resolution (WPR). The WPR specifies that an authorization must actually declare, in its text, that "it is intended to constitute specific statutory authorization" for our engaging in hostilities. This section doesn't. What it does is to "affirm" that the Authorization for the Use of Military Force passed in 2001 after the 9/11 attacks -- a statute that does contain the necessary WPR specification -- actually applies to the various targets listed in the new Act. The White House has "strongly" objected to this section, saying that "in purporting to affirm the conflict, [the provision] would effectively recharacterize its scope and would risk creating confusion regarding applicable standards. At a minimum, this is an issue that merits more extensive consideration before possible inclusion."

What difference does the odd wording make? It means that as an authorization for war, this proposed statute isn't in compliance with the War Powers Resolution. One possible result of that would be that those interpreting and applying the law would have to conclude that the statute did not add anything to the authorization contained in the 2001 statute's words; to whatever extent the new language goes beyond the old, it would simply not be binding. It might still be persuasive as to the correct reading of the old words, but it wouldn't have binding legal force as an authorization for fighting in its own right.

Another possible legal result is that it would be necessary to determine whether the War Powers Resolution's specification -- in 1973 -- of the methods by which Congress can authorize fighting is actually binding on subsequent Congresses. As a general proposition, no one Congress can deprive later Congresses of full lawmaking authority. So it might be argued that if Congress does enact this section, that will evidence Congress' decision that it prefers to use a new method -- namely what the ACLU called a "sleeper section" within a huge defense bill -- for authorizing war. Presumably Congress can do that if it wishes. The question will be whether Congress did wish to do that, or whether instead it merely wished to voice its interpretation of what the 2001 AUMF meant.

But perhaps its political purpose is clearer than its legal effect. I suspect section 1034's obscurity (both in wording and in placement in this larger statute) blunts debate -- although certainly it did not escape sharp public criticism. It also attenuates responsibility -- Congress (specifically, the Republican-controlled House) does not treat the modern equivalent of a declaration of a war as a profound decision but rather as simply a subpart of defense spending. And if the result of this statute is a dramatic expansion of the President's authority to wage war, and the nation's entanglement in war (whether this is the result I'll return to in later posts), these effects have been accomplished with as little fanfare as possible.

Given the indifference that this proposed provision suggests with regard to the requirements of the War Powers Resolution, it is ironic, to say the least, that the House has become vocally attentive to War Powers Resolution considerations as our involvement in Libya has continued. If this section winds up before the House again before its final enactment, I wonder whether legislators who in June displayed a lot of anxiety about war and Presidential warmaking will still be happy with their handiwork from late May.

Speed-interviewing as a measure of social skills

2011-07-16T09:02:00.000-07:00

Here's an item from the New York Times that manages to be both encouraging and unnerving at the same time: a report (Gardiner Harris, "New for Aspiring Doctors, the People Skills Test," July 10, 2011) on a new medical school's use of "the admissions equivalent of speed-dating: nine brief interviews that forced candidates to show they had the social skills to navigate a health care system in which good communication has become critical."

This report is encouraging for two reasons: First, it reflects medical schools' concern with doctors' personal skills. According to the article, research suggests that lack of such skills can and does lead to many treatment errors, as one might expect it would in a setting where communication and interaction between the patient, the patient's family, and a large medical staff is essential to effective care. Needless to say, other professions need personal skills as well -- my own, law, high on the list.

Second, the report offers a way of identifying people who actually have such skills. It's not so easy to do this, since we don't have many absolute rules about the best ways for people to treat each other. Is someone caring, or dissembling? Stern and unfeeling, or gruff but kind? Creative or opinionated? The mini-interview system's answer is pragmatic: 9 interviewers are better than 1. This approach is, essentially, crowd-sourcing: if most people feel you (the interviewee) have good personal skills, you probably do. Moreover, you have to demonstrate these skills not by discussing yourself -- the domain of pre-planned, "practiced responses" -- but rather by discussing ethical problems in discussions in which "[t]he most important part of the interviews are [sic] often not candidates' initial responses -- there are no right or wrong answers -- but how well they respond when someone disagrees with them, something that happens when working in teams."

The crowd, to be sure, wasn't completely random: evidently the medical school in question, Virginia Tech Carilion, "trained 80 people to be interviewers, including doctors and businesspeople from the community." It's possible to wonder whether these 80 people sufficiently reflected the diversity of the world of patients and medical co-workers, and also whether different approaches to medical practice might have suggested different training parameters for the interviewers. If all the interviewers were trained in a particular conception of what constitutes constructive disagreement, for example, they might all be prone to missing the value of some different, yet reasonable, style of interaction.

And, oddly enough, it doesn't take long for your true self to become visible. The article reports that "[t]he system grew out of research that found [among other things] that interviewers rarely change their scores after the first five minutes." Here we see "thin-slicing" in action -- the remarkable ability people have to form an impression of each other, an impression that's not only lasting but quite accurate, in a very short period of time.

Even so, this is a major undertaking. Virginia Tech Carilion chose 239 applicants to interview, for 42 positions. If a 6:1 ratio makes sense, then a school with an entering class of around 300 would need to organize interviews for 1800 applicants. Nine mini-interviews for each applicant would mean 16,200 interviews. Virginia Tech Carilion's 80 interviewers provided an interviewer:applicant ratio of about 1:3, so this larger school would need about 600 interviewers for those 1800 applicants. Even if all the interviewers participated on a volunteer basis, the whole enterprise would clearly entail a substantial investment of resources of all sorts by the school.

That's a reason to look for other methods of carrying out these assessments, but it may be that the speed interview system is in fact the best possible approach. There's evidence, moreover, that it actually works: the article states that "candidate scores on multiple mini interviews have proved highly predictive of scores on medical licensing exams three to five years later that test doctors' decision-making, patient interactions and cultural competency," according to the professor who developed the approach, Dr. Harold Reiter of McMaster University. These results do not directly show that those who do well on the mini interviews -- or on the medical licensing exams -- in fact become better doctors (and whether they do would be an important subject for further research), but it seems entirely reasonable to expect that the skills they show on these tests they also display in practice.

But here's where we reach the discouraging aspect of this article. The schools that the students who went through the mini interviews attended presumably made efforts to teach their students good practice skills. Perhaps those efforts paid little attention to the "human" side of medical practice -- but it seems odd if a school that invested in mini interviews did not also invest in subsequent focused training in such skills as patient interviewing. Yet despite this intervening training, whatever it consisted of, the pre-medical school results are "highly predictive" of the post-medical school test scores. That finding unfortunately suggests that whatever the schools did in the intervening years didn't much alter the distribution of social skills among their new students as of the day of their admission. That proposition, in turn, would be consistent with the idea that social skills can't be taught; at least by the time adults apply to medical school, they either have these skills or they don't.

That conclusion isn't irresistible, however. Perhaps what happened in the intervening years is that all of the students got better at the social skills their medical practice would require; the ones with strong skills improved, and so did the ones with weak skills. Even if the relative distribution of skills remained unchanged, the absolute level of everyone's skills rose -- and that would be an important accomplishment. It isn't easy to change a person, we might conclude, and so teaching that does not transform people but helps them make the best of the abilities and skills they already have is well worth undertaking.

But I still think that something more is possible. The Times report says that the mini interview results are "highly predictive" of later test scores -- but in social science, "highly predictive" is itself rather a relative term. Suppose, for instance, that 75 % of those who do well on the mini interviews also do well on the tests years later (a level of consistency that I'd expect would count as "highly predictive"). That still leaves a fourth of the good interviewers who don't do so well years later; why not? And it leaves a considerable number of not-so-good pre-admission interviewers who later do well on the tests. That reassuring unpredictability of human life marks out the space in which teachers can seek not just to help students improve but to assist some in remaking themselves.

Is the fighting in Libya legal and constitutional if the House and Senate can't agree on any legislative response to it? (Answer: No)

2011-06-22T16:20:00.000-07:00

The latest moves in Congress to address the fighting in Libya include possible legislation in the House to cut off funding (described in this article by Jennifer Steinhauer in the New York Times), and a resolution to be offered in the Senate -- by John Kerry and John McCain -- to authorize the fighting and subject it to limits. If passed, a funding cut-off would end the war unless President Obama found, and was prepared to use, some means of circumventing what may be Congress' most fundamental power, the power of the purse. The resolution proposed by Senators Kerry and McCain would thread the needle between President Obama's position that the War Powers Resolution does not apply and legislators' feeling that the war should not go on without congressional approval, by providing an authorization but one that does not treat what it authorizes as "hostilities" and that is not designated as a "specific statutory authorization" that would comply with the War Powers Resolution (WPR). (See the text of the proposed resolution, accompanying an article by Felicia Sonmez on this subject on a Washington Post blog.) The Times reports that the administration does support the Kerry-McCain resolution.

It seems quite possible at this point that the ultimate result will be that the two Houses of Congress cannot agree on any legislation at all. If the WPR is applicable to this conflict, it would follow that our troops must be withdrawn from the hostilities. The WPR does not prohibit fighting if Congress disapproves it; rather, the WPR prohibits fighting (once its 60-day clock has run) unless Congress affirmatively approves it by passing a particular kind of legislation, the "specific statutory authorization."

Should the President be deemed to have the power to fight until he's forbidden to do so? Even if one reads the Constitution to give the President that much power, the War Powers Resolution does tell the President exactly that: stop fighting after 60 days unless we (Congress) authorize you to continue. So to uphold Obama's right to keep fighting -- assuming the WPR does apply to these events -- would one have to say that the WPR is unconstitutional?

The only other possibility I can see would be an argument that the WPR, though constitutional, has to an extent been superseded by subsequent congressional action. How's that? The idea would be that although the WPR rightly reflects the constitutional principle that both political branches must approve of our fighting an extended military engagement, there are many ways that Congress might express its approval. (I support reading the constitution to embody this principle, but certainly its validity is subject to debate; that, however, will have to be a topic for another day.) The WPR requires a "specific statutory authorization," but a subsequent Congress could choose to express its approval in some other way. One Congress can't, in general, tell a subsequent Congress how to meet its constitutional obligations. So perhaps Congress has in some other way given its approval, and also manifested its decision that it can give this approval without using the WPR's specified method.

There is at least some force to this argument. When Congress failed to enact a specific statutory authorization for the Yugoslavia bombing campaign, but did adopt a spending bill providing funding for that campaign, arguably its funding bill also constituted its expression of approval. Otherwise, if the constitution does require affirmative approval from Congress and if its funding bill wasn't that approval, then the funding bill financed an unapproved, hence unconstitutional, war -- and so it would seem that the funding bill was itself unconstitutional. Since there is a general presumption that Congress' statutes are constitutional, one should try to avoid an interpretation of its acts that renders them unconstitutional. So it might be argued that the spending bill passed for Yugoslavia silently, but by implication, repealed the WPR requirement of a "specific statutory authorization" for that war, a requirement that would have mandated that "any provision of law . . . including any provision in any appropriation Act" must in fact "specifically authorize[] the introduction of United States Armed Forces into hostilities . . . and stat[e] that it it is intended to constitute specific statutory authorization within the meaning of" the WPR. (Section 8(a)(1).)

Though all this might be right, it does not much help President Obama. Here there's been no spending law passed, nor any other affirmative expression of Congressional approval. So even if the "specific statutory authorization" requirement can be impliedly repealed for particular wars -- indeed, even if over the 40 years since the enactment of the WPR this requirement has somehow been impliedly repealed altogether (unlikely, since implied repeals are not favored when courts are asked to discern them in legislation) -- there's no evident direct approval of this war by any method.

Perhaps the only remaining possibility would be to discern such approval in actions Congress has taken that don't directly bear on the war. Congress has no doubt expressed its disapproval of human rights abuses, and Qadhafi surely was guilty of many of them. The UN Charter and the NATO Charter protect our security, and have been endorsed over and over through legislative action, and this fighting is authorized by NATO and by Resolution 1973 of the UN Security Council (though the scope of the Security Council's authorization has arguably been interpreted aggressively by the United States and NATO).

All this could be said -- but it all seems to miss the point. Grand principles and commitments may lead to war, but a decision must still be made to fight. I think that we are engaged in hostilities; the latest details to emerge, reported by Charlie Savage & Thom Shanker in the New York Times here, are that "[s]ince the United States handed control of the air war in Libya to NATO in early April, American warplanes have struck at Libyan air defenses about 60 times, and remotely operated drones have fired missiles at Libyan forces about 30 times, according to military officials." That's hardly constant bombardment, but it is persistent -- seemingly more than once a day on average. To share in making the decision to engage in such military action, I think Congress needs to actually focus on and decide it. Moreover, it's likely not enough that members of Congress support the decision in their private thoughts or in their speeches; they need to vote on it, up or down. That hasn't happened, and without it the fighting in Libya remains, I think, in violation of the WPR and the Constitution.

The War Powers Resolution and Libya, Part III -- what exactly is our role in the fighting?

2011-06-18T20:13:00.000-07:00

The Administration's June 15, 2011 report to Congress is a detailed account of our engagement in the fighting in Libya. It does demonstrate that our involvement is restricted. In particular, it explains Secretary of State Clinton's recent statement that we were still responsible for 25 % of all sorties. I said in a post two days ago that the new report, as described in the New York Times, seemed to describe a less extensive level of activity. But I now understand that there was no inconsistency. Here's what the report says (at 8):

"Three-quarters of the over 10,000 sorties flown in Libya have now been by non-U.S. coalition partners, a share that has increased over time." That's the same figure Secretary Clinton referred to (since it leaves 25 % of sorties as flown by the U.S.). Moreover, the report's explanation indicates that the percentage of sorties flown by the U.S. currently must be less than 25 %, since the non-U.S. share has risen over time to the 75 % level.

Also important, in terms of measuring our involvement in combat, is this observation (at 9): "The overwhelming majority of strike sorties are now being flown by our European allies while American strikes are limited to the suppression of enemy air defense and occasional strikes by unmanned Predator UAVs against a specific set of targets, all within the UN authorization, in order to minimize collateral damage in urban areas."

Our sorties, then, are primarily not "strike sorties." Presumably they are flights carrying out surveillance and refueling missions, both of which the report emphasizes the dominant US role in providing (9).

But it is worth noticing that we do still have a part in the fighting as well as its support. Apparently this takes three forms:

(1) "[O]ccasional strikes by unmanned Predator UAVs against a specific set of targets"

(2) "[S]uppression of enemy air defense": It's notable that the report does not refer to strikes for this purpose as "occasional." Nor does it say they are carried out by Predator drones. Apparently, then, our planes and pilots are carrying out some considerable number of strikes aimed at suppressing enemy air defense, presumably by bombing and or firing upon those air defense facilities.

(3) Rescue operations: Although the Administration, as a recent New York Times report notes, has "emphasized that there are no troops on the ground," rescue operations are a possible exception to this proposition. The Administration's June 15, 2011 report offers this observation (at 11): "As President Obama has clearly stated, our contributions do not include deploying U.S. military ground forces into Libya, with the exception of personnel recovery operations as may be necessary." The report does not spell out whether or how often we have actually had ground forces in Libya for this purpose, but this sentence leaves the impression that such operations have taken place.

Literally, these operations constitute an "introduction" of troops into Libya, and presumably there is a real possibility of hostilities -- fighting -- in such moments. One might say, therefore, that these operations are a particularly likely trigger of War Powers Resolution requirements. But it might be said in response that these moments are too fleeting to count as a sustained introduction of troops into hostilities or imminent hostilities. It's our other operations that are sustained, presumably daily interventions -- mostly not in shooting, but certainly in guiding (by surveillance) and enabling (by refueling) the shooting done by our allies in NATO.

If we were only shipping munitions to our NATO allies, I think the law of war would not treat us as a party to the conflict, nor view our soldiers as combatants. But our involvement is much deeper than that. We are very much part of the fighting, though we evidently fire weapons ourselves relatively little. The Libyans lack the means with which to shoot at our planes -- but surely, if they could, they would be acting within the law of war to fire on our planes as they engaged in surveillance or aerial refueling of NATO bombers. To be clear, I'm not suggesting in any way that Qadhafi's cause is just. But the law of war that regulates how wars are carried out permits both sides to fight, even if one side had no right to go to war. In general it is no crime for a uniformed soldier who is fighting for an unjust cause to shoot at enemy soldiers whose cause is just.

The reality that our forces are acting as combatants strikes me as another indicator (in addition to those I discussed in my earlier post) that the War Powers Resolution's requirement of Congressional approval is now in play. Broadly speaking, we should want -- and we should understand the Constitution and the War Powers Resolution to require -- Congress to state its approval for our nation taking actions that under international law would permit our forces to be fired upon. Even if our forces are so superior that their actions are truly risk-free (a very unlikely hypothetical), when we cross the line international law draws between peace and hostilities, we ought to decide as a nation that we mean to.

On the release of 46,000 convicted felons from California's prisons

2011-06-17T12:19:00.000-07:00

To my surprise, the Supreme Court last month upheld, in Brown v. Plata, a lower-court order directing California to reduce its prison population within two years by approximately one-third, some 46,000 people -- all of them, as justice Scalia notes in his fierce dissent, "convicted felons."

Basically, this is good.

But saying why and to what degree it's good is a more complex matter than I'd expected. So I will discuss it in a number of posts, as I work out my own thinking about it.

I'll begin, here, with why it's good. One answer could be that California imprisons too many people. I think it is true that criminal sentencing in the US is harsh compared to many other nations, and also true that our heavy use of imprisonment has fallen most severely on minority communities, with very painful results. But the issue of sentencing policy is not an entirely simple. Chief Justice Roberts in his dissent quotes a scholar saying that "'[t]here is a general consensus that the decline in crime is, at least in part, due to more and longer prison sentences.'" Even more to the point, the case wasn't decided on the ground that sentencing policies were or were not unconstitutional -- so if the case benefits us by reducing incarceration, that's a collateral effect rather than a legal ground for the decision.

Rather, the reason the decision is good is that, whatever sentencing policies we choose to have, we have to be prepared to pay the price for them. If we want to lock lots of people up, then we have to deliver constitutionally adequate health care and mental health care -- the issues in this case -- to all those people. If we want to do that, we have to pay for it. No legislature in a time of budget shortages will readily make prisons a priority -- and California's budget troubles have been acute. Perhaps only the Constitution, and courts' enforcement of it, have a chance of doing that.

I think that's the central reason for the Supreme Court's decision. Justice Kennedy, as so often the swing vote and here the author of the majority opinion, is no radical. Nor does he appear comfortable with the two-year timeline for the prison population cuts set by the lower court -- he upholds it but suggests, at some length, that California might seek, and the lower court might grant, various modifications, including an extension to 5 years. (It's worth adding that even in its original form, the lower court's order did not actually specify that prisoners had to be released. What it did was to require that California reduce its prison population to no more than 137.5% of design capacity -- something the state in theory could accomplish in various ways, including by transferring prisoners to other facilities or by building new facilities. But as Justice Kennedy put it, perhaps understating the point, "[t]he population reduction potentially required is nevertheless of unprecedented sweep and extent.")

But, he writes, "[a] prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society." The Constitution, this case teaches, simply won't permit violations of its guarantees so persistent as to suggest they will never be honored. Faced with that prospect, Justice Kennedy -- and a majority of our quite conservative Supreme Court -- made clear that California did not have the option to disobey the Constitution.

That's good.

Libya and the War Powers Resolution -- Part II

2011-06-15T19:18:00.000-07:00

Today, June 15, 2011, President Obama has issued at last his explanation of why he believes he can continue our involvement in the fighting in Libya despite the fact that there has been no Congressional enactment of the "specific statutory authorization" seemingly required by the War Powers Resolution (WPR). Presumably this announcement means that the White House has given up on the strategy of actually seeking congressional approval; in theory, given this position, the White House should now feel that efforts by sympathetic legislators to proceed under the WPR are actually based on a legal mistake.

The fact that this explanation emerged so late -- 88 days after our involvement in Libya began -- and only after the House of Representatives had demanded an explanation in itself casts doubt on the explanation's persuasiveness. If it was that good an argument, why didn't it get made earlier? The White House's unwillingness to say whether the Office of Legal Counsel -- the elite Department of Justice unit with a tradition of nonpartisan independence (a tradition tarnished during the Bush years) -- agreed with its theory also raises doubt. (These features are reported in Charlie Savage & Mark Landler, "War Powers Act Does Not Apply to Libya, Obama Argues," N.Y. Times, June 15, 2011. I'm also relying here on Savage & Landler's account of the arguments made in the 32 unclassified pages of Obama's report to the Speaker of the House of Representatives. I may have more to say once I've read the report!)

Nevertheless, Obama's argument could be right. His position is that the particular role we now have doesn't amount to involvement in hostilities. What is that role? Notably, it does not involve ground troops at all. Also notably, it exposes our forces to little or no risk of being fired on -- the Libyans haven't got the guns, and we keep our distance. What we are doing, as Savage & Landler summarize the Administration's presentation, is providing surveillance and refueling for other NATO states' planes, and using unmanned drones to fire on Libyan targets. (Interestingly, this level of activity seems less than what Secretary of State Clinton had described, in a remark I cited in my previous post on this issue.) In making this argument, as Savage & Landler also note, Obama joins other administrations which have also tried to read narrowly the War Powers Resolution's focus on the introduction of US forces into hostilities (though not on these particular grounds). In doing so he can find important interpretive leverage in the fact that the WPR never defines the relevant term "hostilities" or, for that matter, "introduction" (as in the "introduction of US forces into hostilities"). And it is important to recognize that Obama has not disputed the War Powers Resolution's constitutionality, only its applicability.

Still, this argument should not be accepted. The fact that the Libyans can't strike at us doesn't mean that we aren't killing them, and doesn't mean we aren't incurring the high economic costs of war and the many political entanglements it risks. Nor is it possible, in an age of terrorism, really to be certain that we won't be attacked in turn, either by the Libyans (the authors of the Lockerbie bombing) or by others who make, or pretend to make, the Libyan cause their own.

But perhaps the clearest refutation of this position comes from applying its logic. If we're not engaged in hostilities now, apparently we could continue this conduct indefinitely and still not be engaged in hostilities. We might also be able to increase the scale of our involvement by some considerable margin, still without crossing the hazy line around the zone of "hostilities." All this unless Congress musters a veto-proof and interpretation-proof statutory prohibition (or the President runs out of money that he can tap from the notably flexible Pentagon budget).

Why should the President have such an authority? We are far past a short-term emergency, far past a quick and "surgical" strike, and quite a ways removed from any direct threat against the United States that provided a reason for war resting in immediate national self-interest. It seems to me that if we take seriously the idea that both elected branches of our government must concur in decisions on war, that principle requires congressional concurrence now. I would read the War Powers Resolution as saying exactly that.

I would support Congress issuing that concurrence. I fear that if given the chance Congress won't do so, and that much of the reason will be partisan politics. But that's what a democracy is: a country where the people, with all their wisdom and unwisdom, rule.

Ashcroft v. al-Kidd and the use and abuse of the "material witness" statute

2011-06-10T10:18:00.000-07:00

On May 31, 2011 the Supreme Court decided, in the case of Ashcroft v. al-Kidd, that the government's subjective intent in detaining someone under a material witness statute makes no difference to the constitutionality of its actions. As the Court explains (majority opinion at 1), material witness warrants are authorized by federal statute, 18 U.S.C. § 3144, “to 'order the arrest of [a] person' whose testimony 'is material in a criminal proceeding . . . if it is shown that it may become impracticable to secure the presence of the person by subpoena.'” Al-Kidd alleged, and the Court accepted for purposes of argument:

that, in the aftermath of the September 11^th terrorist attacks, then-Attorney General John Ashcroft authorized federal prosecutors and law enforcement officials to use the material-witness statute to detain individuals with suspected ties to terrorist organizations. It is alleged that federal officials had no intention of calling most of these individuals as witnesses, and that they were detained, at Ashcroft’s direction, beause federal officials suspected them of supporting terrorism but lacked sufficient evidence to charge them with a crime.

(Majority opinion at 1-2.) The Court's decision is that if the warrant is objectively well-founded, it makes no constitutional difference under the Fourth Amendment (which regulates searches and seizures) that in fact the warrant was obtained in order to detain someone whom the government had no intention of calling as a witness.

This was not the central issue in the case before the Court. The central issue, rather, was whether Attorney General Ashcroft was entitled to qualified immunity for having instituted a policy of acting in this way. On this point, the eight justices sitting (Justice Kagan recused herself) were unanimous: since it had not been "clearly established" prior to Ashcroft's acts that such a practice was unconstitutional, he could not be sued for it even if it was ultimately found to be a breach of the constitution.

As to the question of whether the warrant actually was unconstitutional, the Court hedged. The majority did not say the warrant was constitutional. In fact, the majority didn't even clearly decide that the material witness statute was constitutional, if used purely and precisely as it presumably was meant to be, as a tool to detain needed witnesses who otherwise would flee. (See the separate opinion by Justice Kennedy, at 1-2; Kennedy joins the majority opinion but carefully delimits what it says.) Incidentally, the reason there could be a question about the constitutionality of the material witness statute, no matter how strictly applied, is that the material witnesses are not themselves suspected of any crime – they’re being held only to make sure they’re available to testify. But that issue, again, isn’t one the justices rule on.

Instead, what the 5 justices in the majority decided was only this: that if the warrant was objectively well-founded under the statute, then the fact (that is, the alleged fact) that the government's true purpose -- its "subjective intent" -- in getting the warrant was to investigate al-Kidd himself rather than to hold him as a witness didn't make the warrant unconstitutional.

The question of the relevance of subjective intent to the constitutionality of searches and seizures has been much discussed, and isn't my principal focus here. What strikes me most about the court's decision on this point is not the ultimate answer (though I'll have more to say about this below) but the question.

What does it mean to say that the material witness warrant was objectively well-founded even though the subjective intent was improper? To be objectively well-founded, the warrant had to be based on sufficient reason to believe that al-Kidd's testimony was material to a criminal case. But if the government had no intention of using that testimony, in what sense could it have been material?

"Material" means, roughly, "relevant and of probative value." So the question the Court posed was whether it was constitutional for the government to detain someone whose evidence (a) was relevant and of probative value, when (b) the government had no intention of using it. It's possible to imagine such cases, but not easy to see how they could have been part of the post-9/11 use of the material witness statute as described in al-Kidd’s allegations.

For example, the government might know that Mr. X had material information, but not want to use it because the criminal prosecution could be carried out based on other people's evidence. But this hypothetical suggests that the government already has a pretty good idea of what Mr. X knows, and already has a pretty good sense of the costs and benefits of using Mr. X's testimony as compared to relying on other evidence. That, however, is hard to square with the opening assumption about why the government was using the material witness statute in these cases -- to investigate people whom it did not yet have sufficient evidence against to justify an arrest and prosecution.

So it seems unlikely that the case the Court decides -- an otherwise valid material witness warrant accompanied by a subjective intent only to investigate the detainee himself -- ever actually arose in the post-9/11 days. Certainly it was not demonstrably Mr. al-Kidd's case; he alleges, as Justice Ginsburg details (Ginsburg opinion at 1-2), that his warrant was obtained by material misrepresentations in the affidavit the government submitted to the magistrate who issued the warrant. In the Supreme Court, according to the majority (majority opinion at 3-4 & 8 n.3), Mr. al-Kidd's counsel argued the case as if it was indeed an instance of the objectively valid, subjectively flawed warrant -- but that seems to have been a framing of an issue for decision, not a concession or representation that the facts were on these lines (see Justice Ginsburg’s opinion, concurring in the outcome of the case but not its rationale, at 1 n.1). (Adam Liptak reports on Mr. al-Kidd's account of what happened to him here. Al-Kidd also charged that he was held in degrading conditions during the 16 days he spent as a material witness; these charges have been settled (see opinion of Justice Ginsburg at 4-5).)

Justice Scalia, writing for the Court, asserts (majority opinion at 3) that the Court had the discretion to address this issue, since the court below had ruled on it, and that is no doubt correct. Nevertheless, the Court here seems to have decided an issue that is not only abstract but also hypothetical. That brings the Court very close to a realm it has tried to avoid for 200 years -- the decision of mere debates rather than of actual cases or controversies (as the constitution characterizes the subject-matter of courts' work). For different but related reasons, Justice Sotomayor refers in her separate opinion, also concurring in the outcome of the case but not its rationale, to the “artificiality of the way the Fourth Amendment question has been presented to this Court,” and regrets the Court’s “unnecessary holding on the constitutional question.” (Sotomayor opinion at 2.) I agree.

But there’s one more thing to add. It is no doubt true, as Justice Scalia emphasizes (majority opinion at 3-9), that most of our Fourth Amendment case law tests the validity of searches and seizures only by whether they were objectively justified, with no regard to their subjective motivation. But the apparent unlikelihood that objectively valid, subjectively pretextual material witness warrants actually were obtained as part of the reaction to 9/11 suggests that in the real world the cases that will actually arise are more likely to be cases of warrants that pretend to be objectively valid but actually are both pretextual and invalid – cases, to be precise, of people whom the government certainly wants to detain for investigation, but who are neither chargeable with any offense nor actually needed for anyone else’s trial.

To affirm the constitutionality of the hypothetical warrant that somehow is objectively valid though subjectively pretextual risks inviting the government to fit its truly invalid as well as pretextual detentions under this saving mantle. That, I believe, is a mistake. The fact that, as Justice Sotomayor emphasizes (Sotomayor opinion at 1), the result is a possibly “prolonged detention of an individual without probable cause to believe he has committed any criminal offense,” a situation the Court hasn’t considered in its other objective-validity cases, compounds the error.

Two months later, is the war in Libya still constitutional?

2011-06-08T16:08:00.000-07:00

Does it matter that congress hasn't approved our involvement in fighting in Libya? Yes, very much.

Back when this intervention began, when President Obama scarcely nodded in Congress' direction, I argued that it was now a fact of U.S. constitutional law that presidents can undertake small-scale military actions on their own initiative.

But starting them is one thing, continuing them is another. Not just as a matter of general principles of good governance, but because the War Powers Resolution (WPR), enacted by Congress over President Nixon's veto in 1973, says so. It specifies that if the President intrroduces our forces "into hostilities," and if Congress does not enact a "specific statutory authorization" for this engagement within 60 days of a mandatory report by the President to Congess about the engagement (a report due within 48 hours after the introduction of our forces) -- then the troops must be withdrawn, though the President can obtain an extension of up to 30 days to do so.

There doesn't seem to be any good ground for denying that the War Powers Resolution's requirements apply to our engagement in Libya. Though we passed leading responsibility over to NATO, we are an integral part of NATO. A US general is its "Supreme Allied Commander, Europe." As Bruce Ackerman and Oona Hathaway recently pointed out, "Secretary of State Hillary Clinton recently admitted that 'the United States continues to fly 25 percent of all sorties. We continue to provide the majority of intelligence, surveillance, and reconnaissance assets. We continue to support all of our allies in their efforts.'"

It is true that we do not have ground troops in Libya -- or at least have not acknowledged having any there. (CIA agents are another matter, but the War Powers Resolution doesn't regulate their use since it applies only to the introduction of "United States Armed Forces" into hostile situations.) But if, for instance, we fire a missile from a ship in international waters to hit a target on the land of another nation, we are fighting -- and we ought not to parse the WPR's provisions about introduction of United States forces into hostilities to try to avoid this reality. All the more so if our surveillance planes and bombers, to say nothing of our attack helicopters, are in Libyan airspace. To deny this would be not only to deny stubborn fact, but also to undermine the purpose of the WPR (not to mention of the Constitution’s allocation of war powers) – namely, to keep the country out of war unless we really do, collectively, want to incur its perils.

This is a curable situation -- Congress can, if it so chooses, approve the engagement, and can also impose limits on the engagement. President Obama could veto such a constrained authorization, but only at the cost of potentially not receiving the "specific statutory authorization" that the War Powers Resolution requires. More likely, the White House and Congress would negotiate the terms of legislation both could live with. The approval statute, of course, would be a bit late, but Congress can choose to regard that problem as academic. The result wouldn't be entirely neat, but it would acknowledge the continued relevance of the WPR's limits, much as the lengthy dispute over President Reagan's introduction of troops into Lebanon, ultimately ratified and placed under limits by Congress in 1983, did. (For a concise recounting of the Lebanon story, see Stephen Dycus et al., National Security Law 323-25 (3rd ed. 2002).)

It's striking, to say the least, that President Obama has fought on in Libya past the 60 day limit. (As of today, June 8, 2011, he is 19 days beyond the 60 days + 2 days for report filing that began to run when our engagement in Libya began on March 18.) President George W. Bush obtained congressional authorization for our attack on Al Qaeda and the Taliban, and then got a separate authorization for our war in Iraq. His father received congressional authorization for the first Gulf War. The elder President Bush had to be pushed by a court decision to seek congessional approval, but that may reflect an important political point: with Republicans at least somewhat constrained by their frequent advocacy of strong executive powers, and Democrats at least somewhat reluctant to criticize a Democratic President, Democratic presidents may be better positioned to violate the War Powers Resolution than Republican presidents are. That might help explain why the most unambiguous violation of the WPR's time limits was by another Democrat, President Clinton, in connection with the NATO bombing campaign against Yugoslavia in defense of Kosovars of Albania descent in 1999.

Of course, there's another very significant difference between the unauthorized wars and the authorized ones, besides the political party of the Presidents responsible. This difference is the size and nature of the engagement. Our two wars with Iraq and our ongoing war in Afghanistan have been large-scale, full-throttle miltary engaements; the bombing campaign in Yugoslavia, and the air war in Libya, are more circumscribed. But not so circumscribed, it seems to me, as to fall below the level of "hostilities."

Perhaps the most important difference is a completely pragmatic one: it looked, at the time we intervened in Libya, as if we might be in and out of there within the 60-day period. President Clinton may have had similar hopes when he began the bombing in Yugoslavia. In fact, the Yugoslav government accepted defeat around day 77 of the bombing – and so Clinton, who never sought Congressional authorization, was ultimately not guilty of more than about two weeks of violating the WPR.

Will Congress pass such a statute? Maybe not, both because Congress is locked in partisan rancor and because the Libyan war isn't going all that well. If Congress doesn't pass it, the next question will be whether Congress does anything else at the same time. If Congress approves new funding legislation specifically for this campaign, that by itself might count as authorization – even though section 8(a)(1) of the WPR said forty years ago that it wouldn’t. On the other hand, if Congress passes legislation calling for the withdrawal of the troops, that will definitively show that Obama is acting without Congressional authorization. In fact it would show this lack of authorization even if Obama successfully vetoed the legislation, since the point would remain that a majority (though not a two-thirds majority) of members of Congress affirmatively disapproved of his intervention.

But what if Congress refuses to pass that sort of affirmative legislation? At that point, President Obama may want to argue that he is not exceeding his authority, since Congress hasn’t said he is. Something like this actually happened to President Clinton: on a single day, April 28, 1999, the House of Representatives defeated (by a tie vote) a concurrent resolution approving the bombing campaign, defeated legislation declaring war on Yugoslavia, and defeated legislation cutting off US troops' involvement in the campaign. (Dycus et al., supra, provide the details, and other information on these events that I've relied on, at 191 & 409-13. It's worth noting, as Ackerman & Hathaway point out, that Congress did subsequently -- and before the 60-day clock had expired -- approve special funding to support the costs of the Yugoslav campaign.)

I don’t think the Congressional paralysis displayed on April 28, 1999 should count as approval, and I maintain that President Obama needs Congress’ affirmative approval, not just its failure to disapprove, in order to continue the fighting. But Congressional ambivalence in action might remove enough of the sting to make it easier for Obama to press on with the war, in the hopes that he too can bring a bombing campaign to a conclusion quickly, as President Clinton did before him.

Marking the path of the law -- on values and emotions in the work of judges

2011-05-20T10:08:00.000-07:00

I'm posting here the abstract and a link to Marking the Path of the Law, an article I've just published, in which I discuss the role of values and emotions in the decisions judges make as they interpret a constitution. The article focuses on South Africa in particular, but I think what's true there is true for the U.S. and probably elsewhere as well.

Here's the abstract:

This article, published in South Africa’s Constitutional Court Review, focuses on the Constitutional Court of South Africa in order to discuss the nature of constitutional judging more generally. Looking to Brown v. Board of Education as an example, it argues that technical skill – though obviously important – is not the highest virtue of the constitutional judge, and that a central attribute of constitutional judging is commitment to the values of the constitution. But commitment to values is more than a matter of rational assent. As everyday experience and neurological evidence teach us, commitment naturally and unavoidably involves, the judge’s emotions as well.

Once we acknowledge that emotional commitment to values is crucial to judging, how can we avoid the danger that emotional commitment will become over-commitment and lead a judge to unjust decisionmaking? Some familiar answers are important but insufficient. Thus even when constitutional values are spelled out in the constitutional text itself, as in South Africa’s constitution, they are predictably too capacious to narrowly bound judges’ decisions. Empathy, a bridge to help judges understand others, unfortunately works best with those most like ourselves, and must in any case be held in some check if judges are to make the necessarily hurtful decisions they must. Practical wisdom, as characterized by Anthony Kronman, seems not to encompass the sometimes transformative role of lawyers and judges. Judicial independence must be mixed where appropriate with judicial deference, and in any case is itself a value to which judges may be emotionally over-committed.

If these answers are insufficient, is there any other protection available? Reflecting on a particularly fraught case on which the Constitutional Court had to rule, the article turns to an old idea, judicial objectivity, and urges that it is not the absence of emotion but the proper cabining of emotion. That capacity, in turn, rests both on the personal traits of individual judges and on an institutional practice, the “discipline of the law”: the requirements of transparency, deliberation and reasoned justification that constrain the process of hearing and deciding cases and that are, ultimately, a part of the larger rule of law itself – the path of the law (to use Oliver Wendell Holmes, Jr.'s phrase).

Finally, in light of this understanding of the role of constitutional judges, the article turns to the question of law schools’ role in preparing students for their responsibilities as lawyers and judges in a constitutional state. The article argues that the practice of law is itself a constitutional function, so that properly understanding what to do as a lawyer entails the study of the constitution – a point South Africa’s far-reaching constitutional doctrines underline. But responsible practice, again, is not just a matter of skill and knowledge. The article maintains that what prepares students for the moral responsibilities of judging is to begin to take responsibility themselves, and concludes with a call for increased use of clinics and similar teaching approaches to guide students’ apprenticeship in practice.

The killing of bin Laden and justice

2011-05-15T09:33:00.000-07:00

I've argued that the killing of bin Laden was legally justified. But was it justice, as President Obama declared?

The U.S. has not asserted that the killing of bin Laden was carried out as a punishment for his crimes, and extrajudicial punishment would clearly be illegal under international law. We have defended his killing, instead, as a legitimate act of war – and I’ve argued in my three previous posts that it was lawful.

But it seems fair to say that in assaulting bin Laden's compound in Abbottabad, we did not hope to bring him back for trial. If that had been our goal, then our forces in the house would have risked their own safety, if necessary, in order to capture him alive -- and that does not seem to have happened. Should we have done that?

There is a powerful precedent saying we should have: Nuremberg. We considered summary execution of the Nazi leaders we had caught at the end of World War II, and deliberately decided against it. Trials, we felt, were the way to express the world's condemnation of the Nazis' crimes. I doubt that we were much more certain of bin Laden’s guilt than of the Nazis' -- and in any case being convinced is not the same as convicting someone. So if a trial was the way to condemn the Nazis, why not bin Laden? The answer may be that there are at least two dramatic differences between the situations then and now.

First, it is quite possible that our evidence against bin Laden was tainted. If enhanced interrogation techniques -- torture -- played some role in the long investigation that found bin Laden (as advocates of those techniques have been arguing), they might well have played a role in our accumulation of the evidence of his guilt too. Perhaps we had other evidence, but perhaps not enough. If not, then we either could not have tried him, or we would have had to try him in a tribunal designed to permit exceptions to rules of process that we normally consider binding. Such a tribunal -- a military commission, as we have shaped that institution -- would have lacked legitimacy in the eyes of the world, precisely to the extent that it departed from those normally binding rules. The fact that it likely would have been held at Guantánamo would have added to its illegitimacy. (Why would it have been at Guantánamo? Because the Congress that hasn't been willing to permit anyone to be moved from Guantánamo to the US for trial likely would have been at least as leery of bringing bin Laden to a court inside the US.) It might be said, and rightly, that we have brought this problem on ourselves; but having done so, we may have robbed ourselves of the ability to try bin Laden in a way the world would consider legitimate.

Second, the war is not over – and for this I do not think our actions during the war can be seen as responsible. Nuremberg was a trial organized by the victors to justly punish those we had defeated. I imagine that the audience to whom the trials were directed was, first and foremost, the peoples of the world whom the Nazis had tormented through the war – though I’m sure it was important, then and thereafter, that even the people of Germany see some measure of justice in what was done. But here the struggle between the United States and the supporters of Al Qaeda, more broadly the delicate process of charting a relationship between the West and the world’s Muslims (whom I do not at all equate with Al Qaeda), is still underway. The sentiments of the world’s audience are far more mixed than they would have been after World War II. A trial of bin Laden, especially one with legitimacy problems of its own, might have been a vindication of him rather than a step in the world’s repudiation of his crimes.

So can we say that justice has been done? Certainly not legal justice – that would have required a trial. Surely poetic justice – those who unjustly cause the deaths of thousands of others should pay for what they have done, and it is fitting that a mass murderer should pay with his life. But that is a judgment not of morality so much as of fate.

As a matter of morality, did he deserve to die? I am not sure what, if anything, forfeits a person's moral right to live or who, if anyone, is entitled to enforce the forfeiture. If the death penalty is ever morally justified, however, war might be the place. In war, soldiers’ lives are taken simply because they are the enemy, with no suggestion or imputation of fault at all. In the world of war, it may be that fault -- great crimes, in particular -- should be a basis for taking life too.

But whether or not, in the ultimate light of morality, bin Laden deserved to be executed, he surely deserved to be condemned and sternly punished. (So I believe; clearly not everyone in the world agrees. So I acknowledge that I am arguing based on my view of justice, not based on an account of justice that commands universal assent.) Nuremberg provided a way to condemn and punish after World War II, but for the reasons I’ve suggested it’s not at all clear that a trial of bin Laden would have worked well to accomplish those goals. Put bluntly, punishment might have been imposed, but condemnation might not have been.

It seems possible, therefore, that the death he suffered – though justified legally not as punishment but as military action – was at the same time as close to the imposition of justice as we could get in the real world in which we live. Possible, but not certain. A flawed and controversial trial might in the long run have been a wiser choice, and certainly would have been more in consonance with the growing worldwide effort to subject war to judicial limits. We do not yet know, just as we do not know whether what we did will prove to have been the most effective strategy just as a matter of realpolitik, a concern Professor Amos Guiora raises here.

But I think we do know one thing. The killing of bin Laden smashed his image of brilliance and invulnerability, silenced him and exposed him to mockery. Those emotional impacts of his death suggest that the justice done in his killing was, in part, justice of a particular kind, an old kind: revenge.

The killing of bin Laden and the law of war, Part III

2011-05-13T14:17:00.000-07:00

In my last two posts I've argued that it was lawful to mount a military attack on Osama bin Laden. But that doesn't mean that it was lawful to do simply anything to him. So here I want to ask if the particular attack we mounted was lawful. I have to say at once that here I'm on unfamiliar legal ground, so I'm trying to reason this out rather than to state conclusively what the law is. Here, at any rate, is what I think:

It’s a violation of international law to kill an enemy who has surrendered.

But it’s not a violation of international law to kill an enemy by a method that leaves him or her no opportunity to surrender – for instance, by sniper bullet or by aerial bombing.

Suppose, however, that you choose a method of attack that eventually brings you face to face with your intended target and makes it possible for you to offer him the chance to surrender. Do you have to actually make that offer in some overt way? The answer must be no – while you’re offering him the option of surrender, he could launch his own attack on you.

But is he entitled to a chance to surrender? That is, must the attacker pause long enough so that the targeted person actually can surrender – can say, “I surrender,” or can put his hands in the air? The answer, as I understand it, is that the attacker need not pause even for an instant if he has reason to fear for his own safety if he does so. The military attacker can err, and err strongly, on the side of protecting himself, and need not put himself at risk in order to give the person under attack a chance to surrender.

At the same time, it seems to me that if the attacker can offer the opportunity of surrender, and does not believe that doing so would put him in any danger, then he must do so. He cannot shoot someone who could not possibly have expressed his surrender before the bullet’s impact. That follows, I would think, from the law-of-war principle of proportionality – because this shooting is a killing that is not necessary to, hence isn't proportional to, any military objective. Capture, after all, is essentially as effective as killing as a way to remove the adversary from the war. (“Essentially” rather than “absolutely” because there’s always the possibility of escape – but if that possibility were considered to shift this calculus then it would be legal to shoot people after they had surrendered, and it isn’t.)

But isn’t it possible that the adversary, in captivity, will be even more of a cause célèbre than he would be in death? And couldn’t a warring state want to avoid the tremendous problems that its adversary may pose even within prison walls? The answer to both of these questions is surely “yes.” Moreover, Osama bin Laden’s case is the classic illustration: as a potential defendant, he would have been a nightmare for the US for years to come.

But much as it might have been in the United States' interest for bin Laden not to survive the attack, I don’t think this was something our soldiers were permitted to take into account when they entered the compound. Their job, if I understand the law in this context, was to execute a military mission, and once they were in that compound, on the ground, in purely immediate military terms a completely safe surrender would have been as much a success as a killing. And so I take it that if we had mounted a mission in which our SEALS forces were directed to kill him without giving him any opportunity to surrender, even if that opportunity could be given at no risk to themselves, then it would have been illegal. I say this without citation of authority, I admit, and hope to learn more – but I think this is what the logic of the situation suggests.

So in that case the question is whether we did deny bin Laden an opportunity to surrender, and if we did, whether that was justified by potential danger to our forces. As to the question of whether we denied him an opportunity to surrender, a Los Angeles Times report from May 3, 2011 comments that:

CIA Director Leon E. Panetta said in an interview on PBS television Tuesday [May 3, 2011] that he did not believe Bin Laden had a chance to speak before he was shot in the face and killed.
“To be frank, I don’t think he had a lot of time to say anything,” Panetta said.

The impression this comment leaves is that indeed bin Laden did not have time to surrender – although that’s not quite obvious. Perhaps if bin Laden had immediately raised his arms or fallen to his knees, the soldiers wouldn’t have opened fire. But perhaps not. According to the same report, “a senior congressional aide brief on the rules of engagement [added]: ‘He would have had to have been naked for them to allow him to surrender.’”

Why? Again from this report, interviewing a special forces officer:

"If anyone feels in any way that there is a hostile threat in a case like this – it can be a movement, or a failure to follow commands – deadly force will be authorized. It’s a judgment call," the officer said. "And these assaulters are some of the finest, most highly trained in discriminate shooting. They train in hostage rescue."

Underneath bin Laden’s clothes there might have been a suicide vest, or some other weapon, and in any instant in which he did not obey commands, he might have used those hidden resources.

So when the SEALS assaulter or assaulters entered the room where bin Laden was apparently holed up along with one of his wives, they were authorized to shoot without any pause whatsoever if in any way he appeared to pose a hostile threat. Apparently, however, there was a pause. Again from the L.A. Times report, according to a White House spokesman, Jay Carney, “In the room with Bin Laden, a woman – Bin Laden’s wife – rushed the U.S. assaulter and was shot in the leg but not killed . . . . Bin Laden was then shot and killed. He was not armed.”

So there was time for a woman bin Laden's wife to charge the U.S. soldier, and time for him to shoot her, but in a way that seems deliberately designed not to kill her. Then the U.S. soldier shot bin Laden twice in the head, an action that seems deliberately designed to kill him.

Given that sequence of events, was there legal justification for the fatal shots? Or did we simply intend to kill him all along? I find it reassuring that (according to a N.Y. Times report on May 9, 2011) we had a team of "lawyers, interrogators, and translators" ready to meet on a Navy ship to undertake bin Laden’s interrogation if he was captured in this operation. To me that indicates that capture was a real possibility, that surrender would have been accepted and could somehow have been accomplished. And so I think that "the U.S. assaulter" did not enter bin Laden's room with the settled intent to kill him, but rather with the intent to kill him unless he demonstrably posed no danger and was surrendering.

I think that standard was lawful. Did the assaulter lawfully apply it? Even though the facts as we know them do not demonstrate that in fact bin Laden had to be killed, still in the heat of this moment I think it was legitimate for the U.S. attacker to see bin Laden as still a potential threat – and to distinguish that threat from the threat that his wife had posed a moment earlier – and to act on that. This is self-defense carried to its ultimate, fierce extreme, self-defense in which the burden of proof, and a heavy one, has been placed on the target of attack. It is worryingly close to a plan to kill. But war is fierce, and so I take this attack to be within the bounds of the law.

The killing of bin Laden and the law of war, Part II

2011-05-13T12:09:00.000-07:00

In my last post I said that the killing of bin Laden was an act of lawful self-defense, because we could legitimately pursue and attack bin Laden wherever we found him.

I still think that's correct, but the argument I made there, that killing bin Laden was lawful self-defense even though it took place outside any pre-existing conflict zone, only holds if indeed bin Laden was an enemy combatant, and if the attack on him did not violate the rules governing how such attacks are carried out. In this post, I'll ask what might seem an absurd question even to raise: was bin Laden an enemy combatant?

Let's begin here: the idea that we could attack bin Laden anywhere rests on the assumption that he remained a combatant under the law of war. Enemy generals can always be attacked -- but not if they've retired because of their injuries and now reside in assisted living facilities. Criminals can be arrested for their crimes -- but I believe what we undertood in Abbottabad was military attack, not law enforcement, and if bin Laden counted as a retiree, he wasn't subject to military attack.

I've seen it suggested by a scholar quoted in Der Spiegel 10 days ago that indeed it was not clear that bin Laden still played enough of a role as a military commander to qualify as a combatant subject to attack. Now, after the fact, the sheer quantity of information we seized from his compound, and the reports that he had contemplated attacks on US railroads as recently as 2010, suggest that he was still in the business. Nevertheless it seems quite possible that at the time of the attack he was not much engaged in whatever plans were then being hatched. He may have been "in the business," but not very directly; a Los Angeles Times report after the attack says that bin Laden "no longer ran day-to-day operations of the terrorist network he had founded. But he continued to secretly send strategic guidance to affiliate groups scattered around the globe, officials said." Moreover, it seems certain that we weren't certain of his role -- after all, President Obama has said we were not even sure that bin Laden was in the compound rather than, say, a "wealthy ... prince from Dubai."

But the argument that this uncertainty meant we could not lawfully attack bin Laden seems wrong to me on two grounds. First, we had no reason to believe he had "retired." What had happened to him was that he had been constrained -- by us. Fleeing the danger of attack, he went into hiding, and from hiding he perhaps could not take an active role in shaping new attacks. But if that meant we couldn't attack him, in effect the law of war would give a free pass to those who are so harried by their enemies that they lose effectiveness. Since the point of war is to take away the enemy's effectiveness, it would be perverse to say that success in doing so immunizes the enemy from attack. Of course, if the enemy surrenders then they absolutely are entitled to immunity -- but hiding out is not the same as surrender. (What if what happened was not that bin Laden was harried into ineffectiveness, but that Al Qaeda -- perhaps as a result of our initial attacks -- evolved into a network of loosely connected terrorists rather than a military force with a definable location? I'd view that change, also cited in Der Spiegel, in a similar way: an enemy shouldn't be able to choose for tactical reasons to edge away from an armed conflict once it's begun, and thereby escape a military response to its actions.)

Second, the idea that our uncertainty about bin Laden's level of activity barred us from attacking him seems to add a special and unreasonable barrier to attacking terrorists. To see why requires looking at the the question of whether terrorists are ever "combatants" subject to military targeting.

There is an important policy question about whether it is wiser to treat the struggle against terrorism as law enforcement or war. There is also a parallel legal question. Terrorists are arguably civilians -- civilian criminals, to be sure, but subject as criminals only to law enforcement actions rather than military attack. Even civilians are in some circumstances subject to military targeting, but those circumstances are limited: it's widely felt that military targeting of civilians is unlawful "unless and for such time as they take a direct part in hostilities," to quote Article 51(3) of Additional Protocol I of the Geneva Conventions. (The US has not ratified this treaty, though we evidently view much of it as binding anyway, on the ground that it has acquired the status of international customary law.) It follows that once these civilian fighters are back home and resume civilian life, they once again are subject only to law enforcement, not military action.

These rules in effect protect amateurs who get involved in combat. But -- to briefly restate a longstanding argument -- if they also protected professionals, who could assume the guise of civilians in between battles, and shed it only at times and places of their own choosing, then the rules would give those professionals an advantage over lawful combatants. To protect terrorist professionals from military targeting in between engagements seems especially perverse since the moments of combat that terrorists choose to engage in are likely to be unlawful uses of force in themselves (among other reasons, because terrorists frequently are deliberately targeting civilians -- a forbidden step in war, much as civilians inevitably suffer from the collateral effects of attacks on legitimate military targets).

Exactly who should count as deeply enough involved in military effort to be legally a combatant rather than a civilian is a complex matter. But the US has insisted that Al Qaeda terrorists are indeed combatants, not just when they strike but all the time. And the idea that members of irregular forces can lose their civilian status has drawn support from interpretive guidance adopted in 2009 by the International Committee of the Red Cross.

The ICRC guidance reasons (perhaps controversially) that civilians who are engaged in a "continuous combat function" are to be viewed as combatants all the time -- and therefore are subject to attack at all times as well (as soldiers in a regular army at war are). I would say that bin Laden, in creating and leading a worldwide terrorist network, had taken on a continuous combat function.

But once a civilian has taken on a continuous combat function -- and thus become legally a combatant rather than a civilian -- can he (or she) thereafter enjoy immunity from military attack unless the attacker has solid evidence that he hasn't given up his continuous combat function? It seems to me that a rule like that would restore the exact problem the "continuous combat function" idea was meant to address. By virtue of the requirement of continuous proof of continuous combat function, these fighters would in effect regain the protections of civilian status whenever there was doubt -- on the other side -- about their role. Since the other side is extremely unlikely to have up-to-date intelligence on its individual adversaries -- and of course it will be in the civilian-combatants' interest to keep their status as obscure as possible -- these covert fighters will have a significant, and undeserved, protection from military targeting.

It might be argued that if bin Laden was simply assumed to be a combatant, without current evidence, the result would be to defeat a crucial goal of international humanitarian law -- the effort to hold war within limits. That is a crucial goal. But it's not easy to see attacking Osama bin Laden, of all people, as really presenting this risk. In my opinion, he was, and we legitimately believed he remained, a combatant, subject to military targeting -- even though it might well be that he'd never fired a weapon in anger at least since he moved to his compound in Abbottabad, five years ago or more.

The killing of bin Laden and the law of war, Part I

2011-05-03T06:34:00.001-07:00

I believe that the US is safer as a result of the killing of Osama bin Laden, and I am grateful for the skill and courage of those who ordered and carried out the attack on his compound in Abbottabad -- though we know that this death is far from the end of the struggle against terrorism, and I doubt that anyone's death is a cause for rejoicing.

Meanwhile, there are legal lessons to be drawn from this event. As I understand it, an important strand of law-of-war thinking holds that military force is only permitted in areas where hostilities are underway. Of course, the hostilities first have to begin -- but hostilities can only be brought to bear on the territory of a state if a legitimate justification for war exists. Thus we could go to war in Afghanistan because it harbored Al Qaeda. Perhaps we could go to war -- via drone strikes -- in parts of Pakistan which the Pakistani government did not effectively control, and in which Al Qaeda again had found safe refuge. But we could not, for instance, use military force in the streets of Hamburg against an Al Qaeda member found there, since Germany was fully able and willing to cooperate with us in taking lawful steps to root out terrorists on its soil.

Where does Abbottabad fall on this spectrum? Plainly there were no active hostilities in that city; one of the resident's of bin Laden's comfortable neighborhood describes it as being as close to Britain as you can get. Equally clearly, Abbottabad -- home to a Pakistani military academy -- is not beyond Pakistani government control. And we have not asserted (whatever we may believe) that Pakistan knew of bin Laden's presence in this city. Instead, the position we appear to have taken is that we did not have to seek Pakistan's consent if we felt doing so was risky to the operation, and that we could undertake the operation inside Pakistan not because Pakistan was demonstrably complicit in bin Laden's presence there but simply because bin Laden was in fact there. Our stance appears to have been that we could attack bin Laden wherever we found him if doing so was militarily necessary.

I don't quarrel with that position (which I think our government has adhered to over a considerable period). But assuming that we rest domestic authority for this action not on some inherent Presidential power to fight but on the Authorization for Military Force passed by Congress after the 9/11 attacks, our action in Abbottabad rests on the position that this statute's authorization for war truly has no absolute geographical limits. Assuming also that we maintain that our actions were in accordance with international law, the Abbottabad attack expresses our view that the international law of war authorizes the use of force not just in carefully delimited areas where hostilities are underway or can be initiated on the basis of state conduct, complicity or demonstrated lack of authority -- but wherever self-defense reasonably calls for action. Many international lawyers may view this stance as misguided, but as a fact of state practice it now must be recognized as an important assertion of the correct interpretation of this issue of international law.

The rule of law ... in New Jersey

2011-04-24T09:18:00.000-07:00

New Jersey's Republican Governor, Chris Christie, is threatening a state constitutional crisis. Over the past twenty-five years, in the Abbott decisions, the state Supreme Court has read the state constitution and laws to impose extensive obligations on New Jersey to finance equal educational opportunity for disadvantaged residents of the state. Facing the possibility that the state Supreme Court will rule, in a case just argued before it, that the state has violated those obligations, Christie told a radio interviewer that he might not obey the court's ruling: "That's an option," he said. "I'm not going to sit here and speculate. . . . There are a whole bunch of options in the contingency plan." Ginger Gibson, "If N.J. Supreme Court orders increased school aid, Gov. Christie says not complying is among 'options,'" (originally published in The Star-Ledger, April 22, 2011, at 1).

If Christie were actually to defy a court order, that would mark a constitutional crisis. While many people disobey many laws, and yet the legal order still stands, for a Governor to deliberately disobey an order of the highest court of a state really does undercut the idea of a rule of law. (Why is this a state rather than a federal matter? Because the constitutional guarantee of a "thorough and efficient system of free public schools" is an element of the New Jersey state constitution (Article VIII, Section 4(1)), not the federal constitution. As a result, it seems very unlikely that Christie could appeal an adverse decision by the state Supreme Court to US Supreme Court, which does not deal with state law issues.)

Threatening to disobey a court order isn't the same as disobeying one -- though it does bring the idea of disregarding the courts' decisions into the realm of legitimate public discourse, which is no small matter. Why would Christie do this? One possibility, of course, is that he actually is prepared to defy the courts. But I doubt that. The stakes just seem too high to me; Christie is an ex-United States Attorney, and I can't believe he's willing to say that the duty of obedience to court orders -- which undergirds every criminal and civil case -- actually can be disregarded. (Though I might be wrong.)

More likely, I think, Christie is engaged in one or two high-stakes games. The first is one to be played out just in New Jersey, and its name is "chicken." Christie is apparently trying to intimidate the court into finding some way to decide this case that does not bring it into absolute confrontation with the Governor. There may be ways (columnist Bob Braun of the Star-Ledger has suggested some) that the court could preserve what it might deem the essence of the Abbott decisions without directly flouting Christie's tax and spending policies -- and American constitutional adjudication has long recognized that the courts have no armies, and therefore may sometimes need to use prudence in their dealings with the other branches of government. Of course, the court can play chicken too -- it is one thing for it to issue an order contradicting some positions taken by the Governor, another for it to enforce it by such steps as contempt orders. This struggle may take quite a while to play out. And it may be further complicated by the fact that the state legislature must pass any spending legislation, and so, as Paul Mulshine, , another Star-Ledger columnist, points out, the question of complying with the court order isn't (at least isn't entirely) up to Christie; the legislature may become the immediate target of the court's pressure, while Christie gets to wait in the wings.

The other game is one of Presidential politics. What Christie's intentions are no one knows, but it's clear enough that Republican presidential candidates today must find a way to appeal to the Tea Party side of their party. Christie has made a national reputation for himself with YouTube videos recording his tough talk, and tough talk about liberal courts -- not necessarily linked to much concrete action -- may play well too. The problem for him is that the "tough talk" bar among Republican candidates seems to be set pretty high, and sooner or later may require confirmation in the form of action. How far Christie will want to take this particular appeal remains to be seen.

None of this is good for the ideal of the rule of law. But that ideal has survived a lot, and New Jersey is not in crisis yet.

What prepares students for practice: new empirical data, and new empirical questions

2011-04-23T16:45:00.000-07:00

The “2010 Survey of Law School Experiential Learning Opportunities and Benefits,” just published by NALP (The Association for Legal Career Professionals) and the NALP Foundation, provides striking evidence that law graduates – or at least associates at firms almost all of which had 100 lawyers or more – regarded their clinic and externship experiences as valuable in preparing them for the practice of law is important. But like most surveys it raises at least as many questions as it answers. Here are some that struck me, based on what I’ve digested so far from the survey report (full disclosure: my colleague Meg Reuter, Assistant Dean for Career Planning at New York Law School, was a vice-chair of the NALP work group that helped develop this study):

First, as important as the core finding about the value of clinics and externships is, there is more that would be good to know about it. The survey asked students to list all the sorts of practice courses they had taken, and the report provides the ratings of “usefulness” of various sorts of courses and experiences – clinics, externships, (classroom) skills courses, and pro bono work – by the students who took those particular kinds of courses. It’s very interesting to know that students who took clinics rated them as valuable, and students who took externships rated those just about equally highly (and that students who took simulation courses were less impressed, and students who did pro bono work even less so). But it would also be interesting to know – and it seems the survey data could tell us – how students who had more than one of these courses or experiences rated them: how, for example, students who took clinics and simulation courses rated those two kinds of classes, or students who took clinics and externships. Because they have a basis for comparison, the judgments these students make may be worth careful study. It would also be revealing to know more about which clinic experiences and which externship experiences correlate with high assessments of usefulness; the survey collected some data on types of clinic and externship experiences and so perhaps these correlations can be reported and studied, but they’re not in the current report. (Rebecca Sandefur and Jeffrey Selbin have noted the importance of breaking out the various different sorts of clinics in their analysis of another study of preparation for practice, the "After the J.D." study, in their article The Clinic Effect, 16 Clinical Law Review 57, 84 (2009).)

Second, although the report demonstrates a striking difference between clinics and externships on the one hand, and other skills courses on the other, the difference needs to be carefully assessed. It’s striking that much higher percentages of respondents considered clinics or externships very useful (63.1 % and 60.1 %) than said the same about classroom skills courses (38.5 %). But these figures by themselves may overstate the real differences between the graduates’ perceptions of these courses. The survey asked for answers on a 1 to 4 scale, with 1 being “not at all useful” and 4 “very useful.” The total percentage giving clinics a 3 or a 4 was 84.3 %; for externships, 83.5 %; and for classroom skills courses, 76 % -- many graduates who’d taken classroom skills courses gave them 3’s and so narrowed the cumulative gap between the various types of courses. According to the report, the “average usefulness rating” for clinics was a 3.4; for externships the same; and for skills courses not much less, 3.1.

On the general question of how to deliver effective skills training, it’s also noteworthy that about twice as many students took one of the classroom skills courses as took clinics or externships (637 in skills courses; 279 in clinics; 333 in externships). So it might be said that the classroom courses delivered “pretty useful” instruction to a much larger number of students than either one of the two types of more experiential courses did. One other point to consider here: the classroom skills courses covered a wide range, including trial advocacy, advanced drafting, “subject matter specific skills,” law practice management, leadership, and “other.” Of those that students took most, all except advanced drafting may fall in the general category of simulation skills training, but it’s not entirely certain which particular classes the students found more or less useful.

One other point about the general effectiveness of skills training in law school: how much difference does it make to those who hire the new graduates? Another commenter has asked whether there are data on whether law firm hiring partners take such courses into account. That I don’t know. The NALP survey asked a related question of the graduates -- which, if any, of their skills courses they discussed in their hiring interviews -- but this report does not include data on what the answers were. It would be heartening to learn that the programs graduates regard as having helped them prepare for practice were in some tangible way being taken into account by those who hired these graduates for their practice jobs – but this happy possibility may turn out not to be the reality of the matter.

Third, the survey seems to have asked only about skills courses and pro bono work. If that’s right, that means it didn’t include some law school experiences that may be very useful but don’t take place in courses. Moot court is the clearest possibility, but many students may find law journal work useful (because it hones their writing and research skills, or because it, like moot court, gives them experience in running an organization). It would be useful to know more about how graduates evaluate these sorts of law school experiences once they’re out in the world. It would also be useful to know whether students see any of the doctrinal courses they’ve taken as useful too. Right now we know that students consider clinics and externships very useful; we don’t know from this survey whether they find their civil procedure or labor law classes very useful too. (We do have data on this from the “After the J.D.” study; as summarized by Rebecca Sandefur and Jeff Selbin, in The Clinic Effect, the new lawyers who were that study’s respondents rated their “upper-year lecture courses,” “course concentrations,” and “first-year curriculum,” as significantly less “helpful … in making the transition to [their] early work assignments as a lawyer” than summer and part-time work, clinics, legal writing training and internships. (83-85))

Fourth, this was a survey of “law school experiential learning opportunities.” As such, it didn’t ask about non-law school experiential learning opportunities. As Rebecca Sandefur and Jeff Selbin have found from the data generated in the “After the J.D.” study some years ago, new lawyers rated their full-time summer jobs as significantly more valuable than any other experience rated in helping prepare them for the transition to practice, and rated part-time jobs during law school at the top of a category of the next most valuable experiences, which included these jobs, clinics, legal writing training, and externships. (85-86) (There is room for some doubt, however, about whether all the raters had actually had the experiences they rate (see 85), and so it’s not clear to what extent these ratings reflect judgments by people who actually had a personal basis for comparison.) But the possibility exists that what our students believe they learn most from is simply real experience. Clinics and externships provide that. I believe some other law school courses, such as project-based learning courses in which students, for example, create a website on a real-world issue, do so as well. But jobs provide real experience too.

If additional data turn out to confirm the “After the J.D.” finding that graduates value their summer jobs as much as, or more than, they value their clinics (or other law school skills instruction), would that mean that the academic instruction in clinics and elsewhere didn’t add anything to the value of experience all by itself? I think it’s quite possible the data will turn out this way, but that drawing that conclusion from them would be extremely implausible. Taking these imagined data at face value, what they’d show is that these two forms of learning are both very useful, not that the same things are learned in each setting. One might ask, also, whether these data really should be taken at face value. It’s entirely possible, after all, that graduates don’t realize all that they’ve learned in any given setting. If it turned out, for instance, that they didn’t consider their first-year courses very useful (as the “After the J.D.” data indicated), we might respond that they were mistaken, because they had to get the foundation in legal analysis and knowledge that the first year provided before they could go on to anything else.

But I think we should recognize that learners do know something about where they are learning most. If they turn out to value both jobs and law school skills training, that is a good reason to consider seriously the value of real experience as part of the overall law school learning process. It’s not, however, likely to be an argument against clinics or against skills training in law schools overall. If it turns out that law school skills experiences and jobs are both very useful forms of preparation for practice, the next question would be whether both are more useful than some or many of the doctrinal courses offered in law school. If the answer to that question turns out to be “yes” – and this is what the “After the J.D.” respondents indicate, though as I’ve just said their judgments may have been mistaken – then the implication would be that both of these forms of experiential training should be accentuated, not that one or the other should be sacrificed while the rest of the curriculum remains unchanged.

So the survey is very helpful. The question of what new lawyers believe was useful in their law school years in preparing them for law practice is an important one, and it would be good to ask it as to everything the new lawyers did during (and in the summers of) law school. Right now we have a part, a tantalizing part, of the whole story.

How we change

2011-04-23T13:50:00.000-07:00

One other feature of Laura Hillenbrand's Unbroken (2010) particularly caught my eye: the story of Louie Zamperini's experience of being saved as a Christian, after hearing the preaching of a young Billy Graham. I don't cite this as any proof of the unique truth of evangelical Christianity (not my faith), nor even as conclusive proof of any spiritual proposition -- though I wonder what makes religious words and perceptions sometimes so tremendously powerful, and whether that power really is only a psychological reaction by the person affected.

For now, though, I'm just interested in that psychological reaction. Zamperini, as Hildebrand recounts, was very troubled by the brutal degradation he'd experienced in Japan's prison camps during the war, and was gravely off balance back in California after it was over. He was drinking heavily (338, 363); married impulsively and saw his marriage seeming to fail (338-44, 362-67); and was dreaming of the guard who had most tormented him (338, 350). His efforts to refocus, by training to regain the running form that had taken him to the Berlin Olympics in 1936, went disastrously wrong as he over-exerted himself and blew out an ankle already injured during the war (350-51).

And then, after his wife persuaded him -- much against his will (371) -- to go to Billy Graham's revival preaching in September, 1949, he remembered a moment in the war when, near death in an open raft on the Pacific after his plane had crashed, he had promised God that “If you will save me, I will serve you forever.” (375) That recollection completed something going on inside him. Back at his apartment, he poured his liquor down the sink. He never dreamt of the guard again. (376) His life was restored to him.

What most astonishes me about this story is that it seems that a single experience, perhaps even a single deeply recalled memory, transformed him. Post-traumatic stress disorder, which Zamperini and many other US soldiers held by the Japanese seem to have suffered (346-49), is presumably -- like every mental event -- a physical condition. Brain cells connect, react, in physical ways -- ways that I would assume are more and more deeply established as physical, neural patterns as the sufferer's state worsens.

If our habits of mind are deeply grooved physical processes, we can perhaps understand how a succession of thoughts, over months or years, might slowly carve new patterns of feeling and experience, as rivers carve canyons through rock. Often that is how people grow and change. But not always.

Sometimes, it seems, a thought can change a mind’s functioning in a single fundamental reordering of mental processes. This sudden transformation doesn’t come out of the blue, I’m sure; the person transformed has suffered and sought release for a long, painful time. That long suffering may have marked, or accompanied, a gradual accumulation of mental resources aimed at restoring the mind to health. But still, at a particular moment a particular thought operates on the mind like an earthquake on the planet – rearranging the massive tectonic plates of our minds. Whether religion has anything integrally to do with such moments or not, the effect does seem a bit miraculous.

When our soldiers were treated as unlawful combatants

2011-04-23T12:19:00.000-07:00

Laura Hillenbrand's story of Louie Zamperini, Unbroken (2010), also features another unnerving reminder of more recent events. (I wrote about its bearing on the waterboarding debate in my previous post.) Hildebrand recounts that Zamperini, a captured US Air Force bombardier, was placed in “a secret interrogation center called Ofuna, where ‘high-value’ captured men were housed in solitary confinement, starved, tormented, and tortured to divulge military secrets.” The prisoners held at this secret camp, moreover, were not acknowledged by their captors to be POWs. Instead, the Japanese maintained they were “‘unarmed combatants’ at war against Japan and, as such, didn’t have the rights that international law accorded POW’s. In fact, they had no rights at all. If captives ‘confessed their crimes against Japan,’ they’d be treated ‘as well as regulations permit.’ Over the course of the war, some one thousand Allied captives would be hauled into Ofuna, and many would be held there for years.” (192)

Can one read this and not be reminded of Guantánamo?

On what is torture

2011-04-09T09:47:00.000-07:00

One way to tell whether a particular act is torture is to see what company it keeps. This idea, embodied in the Latin phrase "noscitur a sociis," is actually a venerable tool for interpreting the language of statutes -- but the logic applies to interpreting the nature of other practices as well.

On that score, here's a striking sentence from Laura Hillenbrand's book Unbroken: A World War II Story of Survival, Resilience, and Redemption (2010) -- the story of an American air force officer named Louie Zamperini and the tremendous suffering he endured in World War II, especially the terrible treatment he experienced at the hands of Japanese prison-camp guards. Writing about one of Zamperini's fellow American prisoners, Hillenbrand says: "The Japanese had attempted, in vain, to torture information out of Fitzgerald, clubbing him, jamming penknives under his fingernails, tearing his fingernails off, and applying the 'water cure' -- tipping him backward, holding his mouth shut, and pouring water up his nose until he passed out." (201)

Hillenbrand does not mention the obvious analogy to the United States' use of what's now called waterboarding. But it seems clear enough that in using this technique what we did was to take a technique that had historically been part of the repertoire of torturers. We sought to sanitize it, at least in appearance, but we meant precisely to take advantage of its brutal coercion. Putting aside all intricate questions of the meaning of torture as defined in our statutes -- one should not expect to borrow from torturers and escape their taint.

The constitution and our intervention in Libya

2011-03-20T09:06:00.001-07:00

We're now attacking military targets in Libya. I think the cause is just, but of course the outcome is impossible to predict.

What is most striking is that we have entered the fighting without any direct authorization from Congress. There is no declaration of war, and there is no "specific statutory authorization," with which we began the war in Afghanistan and both our recent wars with Iraq. And there is, as far as I'm aware, no substantial objection to this from Congress -- even though apparently public support for this fighting is quite mixed.

I doubt that the Framers of our Constitution intended to grant the President the power to initiate armed conflict on his or her own. Glenn Greenwald in Salon reports that both Obama and now-Secretary of State Hillary Clinton, as Presidential candidates, appeared to say that the President could initiate defensive fighting -- and, as Greenwald says, Libya isn't that. But I think the fact that Obama has acted as he has, and with as little Congressional opposition as he's faced, confirms that today the President does indeed have some power to initiate armed conflict. If we understand the law not as its words' intrinsic meaning or its drafters' intentions, but as what those who apply the law have actually made of it -- that is, if we are "legal realists" -- then this is the law, the constitutional law, today.

Exactly how much power to initiate armed conflict the President has isn't clear, but it is clear that there are limits on this power. Our land wars of the past 20 years have all been authorized by Congress, and I don't see a basis in current practice for saying that the President can start a war of that dimension on his or her own. But the fighting in Libya, or at least our part in it, is much more restricted: it involves no U.S. soldiers on the ground (and President Obama assures us that won't change), and perhaps involves only a fairly brief series of attacks on well-specified military targets. How much more than this small-scale engagement the President currently has legal power to initiate we do not know; but this much, I think, is within his or her present powers.

That doesn't mean that we can go on attacking Libyan targets indefinitely. We have a statute on the books, the War Powers Resolution, which makes clear that this attack must end within 60 days (with a 30-day extension in some circumstances) unless it is affirmatively authorized by Congress. Those 60 days are sometimes described as a "blank check." I don't think they are a blank check -- that is, I don't think the President can do just anything for 60 days, though I do think he or she can do what Obama has done so far. But at the 60-day limit, this fighting must either be approved by Congress or ended. It is true that that rule has on one occasion been unambiguously violated -- by President Clinton, in another good cause, the 1999 bombing campaign against Yugoslavia to end its oppression of Kosovo -- and it's also true that Presidents and Congresses have pushed back and forth on what the War Powers Resolution required on a number of other occasions. But the War Powers Resolution is still on the books, and I don't think we have an accumulated practice that indicates it's no longer really binding.

The rule that Presidents can initiate some level of small-scale military engagement may be wise or unwise. It also may or may not be retained; the accumulated practice that is its basis could be altered. But I think it is now the law, and we will now have another occasion to view its consequences. I hope they will be good.

Do high LSAT scores and high college grades help -- or hurt -- lawyers?

2011-03-19T09:47:00.001-07:00

In my previous post I tried to comment on some overall implications of the Shultz-Zedeck study. But several of the specific findings just cry out for discussion as well, on the complex relationships between measures of academic ability or achievement on the one hand and elements of lawyering effectiveness on the other.

Shultz and Zedeck generated an enormous quantity of data, including appraisals of study participants' competency on 26 different indices, as measured by the participants themselves, or by their peers, or by supervisors, or by peers and supervisors together, or by all evaluators together. In evaluating the extent to which various possible predictors in fact correlated with the subjects' lawyering competency, they focused (and I do too) on those instances where a predictor (such as the LSAT) correlated with a competency as appraised by at least two groups at a statistically significant level.

In the part of their study that focused on current Boalt law students, Shultz and Zedeck found that those with higher LSAT scores did better on a number of effectiveness measures, including not only "Analysis and Reasoning" -- presumably the principal focus of the LSAT itself -- but also "Writing," "Influence and Advocating," "Creativity" and "Problem Solving." (73) This finding is actually quite a comforting one for schools relying heavily on the LSAT in their admissions decisions, or in other words for almost all American law schools. It suggests that the abilities the LSAT measures are not just those of technical legal analysis but also include some more supple skills that surely are very much needed in actual practice. On one criterion, however, these students did worse, namely "Networking," and Shultz and Zedeck wonder whether high-LSAT students tend to be those who aren't as good at Networking or give it less attention. (73)

Results for the alumni/ae study subjects, who included graduates of both Boalt and Hastings, were broadly similar (53-54). Higher LSAT scores correlated positively with "Analysis and Reasoning," "Researching the Law," and "Writing"; and negatively with "Networking" and "Community Service."

Meanwhile, Boalt students with higher undergraduate grade point averages (UGPA) turn out to score lower on "Practical Judgment," "Questioning and Interviewing," "Developing Relationships," and "Community Service." All of those, the authors suggest, might reflect that those with higher grades are more focused on their books and less on engaging with others in the world. (73-74) Why wouldn't these same effects appear with higher LSAT scores? Perhaps the answer is that the LSAT tends to test just ability, while the UGPA reflects application -- and application to one's books takes time and energy that otherwise might be devoted to learning how to engage with others.

Interestingly, the same results didn't appear with the alumni/ae studied. For them, higher UGPAs didn't correlate at a statistically significant level on any of the competencies where Boalt students with higher UGPAs seemed to be weaker. (See Table 18.) Instead, among graduates, higher UGPAs correlated with higher competency in "Writing," "Managing One's Own Work," and "Diligence." (54) Perhaps the diligent people who earn high grades, and show some gaps in interpersonal competencies in their student years, apply themselves to their interaction with others once they are in practice and over time make up for their bookish focus as students. Perhaps those with high LSATs, who seem to be less skilled at Networking whether assessed as students or as graduates, just never do become interested enough in this task to master it.

The most dismaying feature of the impact of higher UGPA among the students is that it also results in lower scores on "Integrity." (73) All appraisals of Integrity -- by the students themselves, by their peers, by their supervisors, by their peers-combined-with-supervisors, and by everyone combined -- correlated negatively with UGPA, though the correlations for the appraisals by the students themselves, and by their supervisors alone, were not statistically significant. (Table 48.)

Shultz and Zedeck don't comment specifically on why this might be so. The bleakest explanation would be that those with the higher undergraduate grades sometimes didn't come by them honestly, and this lack of integrity shows up in their lawyering behavior as well. But I wouldn't read the finding this way, nor as an indication that people who study are in some way less fundamentally concerned with morality than their peers. What I suspect it indicates is that "Integrity" as a competency is a quality of action, and that those who have spent more time studying and less time in action have had less opportunity to develop themselves as moral beings. This might also explain why there's no statistically significant relationship between Integrity and students' LSAT scores; though students with higher LSATs do show signs of inattention to others in their lower "Networking" scores, they may be less inattentive to others than those who are putting in the work to earn higher UGPAs.

Interestingly, in the study of alumni/ae (at 54), higher LSAT scores did correlate negatively with self-appraisals of "Integrity," but positively with appraisals of Integrity by others (specifically, with appraisals by peers, and by peers-combined-with-supervisors, but not with appraisals by supervisors alone, see Table 18)). Shultz and Zedeck don't discuss it, but their Table 18 reflects the same kind of interaction between "Integrity" and the UGPA among the alumni/ae: a negative correlation between grades and Integrity as measured by self-appraisal, and a positive one for Integrity as measured by "Other" (that is, by peers and supervisors combined).

Shultz and Zedeck do address the LSAT - Integrity relationship, and suggest that the explanation may be that the "Self" ratings reflected participants' knowledge of their own secrets, while appraisals by others reflected the impact of successful manipulation of appearances by the guilty "Selves." (54) Presumably the same reasoning could explain the UGPA - Integrity relationship. And perhaps the reason that Integrity as appraised by all raters in the student study correlated negatively with UGPA, while Integrity correlates negatively with UGPA (and LSAT) for alumni/ae only when Integrity is appraised by the graduates themselves, is precisely that over time people learn to cover up their moral flaws from others.

But I prefer a different explanation, one that takes seriously the idea that integrity is an interpersonal quality. Over time, even those with relatively weaker interpersonal skills can learn what integrity requires -- so alumni/ae with higher UGPAs or LSATs are not in fact lacking in integrity in action. But if an inattention to others underlay their higher UGPAs and LSAT scores, perhaps that reflected a greater preoccupation with attention to themselves, and perhaps that inner-directed focus tends throughout their lives to make such people more self-critical than their peers are.

The main finding, however, is probably the one Shultz and Zedeck emphasize, namely that neither the LSAT nor UGPA nor an Index combining the two predicted much about the 26 elements of lawyering competence among alumni/ae (55) or among students (74). I don't think it follows from this overall point that intellectual ability and achievement are unnecessary to lawyering competence. Rather, I think what the finding underlines is how multifaceted good lawyering is, and how many different human attributes need to be nurtured to help people become effective lawyers.

Who will be a good lawyer?

2011-03-19T09:12:00.000-07:00

Marjorie Shultz and Sheldon Zedeck in 2008 completed a formidable study, "Final Report: Identification, Development, and Validation of Predictors for Successful Lawyering." It builds on earlier work (which I haven't yet read but which they summarize here, at 24-27), through which they developed -- from extensive interviewing of lawyers, judges, law professors and students, and a number of clients -- 26 elements of effective practice. Perhaps even more excitingly, they adopted some existing psychological tests, and developed other tests of their own, which turned out to correlate -- much better than standard law school admission tools such as the LSAT did -- with which lawyers actually were performing effectively (that is, displayed those 26 elements of effective practice)(see 53-61).

Shultz and Zedeck are surely right (79-80) that these findings make further research along the lines they developed well worth undertaking. But they would also, I'm sure, acknowledge that we have a long ways still to go towards the goal of identifying new admission tools that will actually predict lawyering effectiveness. A marker of that distance is that the various new measures they had devised were apparently less powerfully correlated with the lawyering effectiveness of current law students than they were with the effectiveness of those already out in practice. In some respects, the new tests evidently did better than tests like the LSAT in predicting student effectiveness (76), but when the authors ran statistical multiple regressions to assess the value of all the potential predictors they had employed, it turned out that the LSAT seemed to provide the clearest predictive value! (77)

It isn't easy to know what to make of these results. One possibility is that law school -- or at any rate Boalt (the University of California at Berkeley), whose students were the ones studied in this part of the work) -- is not a setting in which it's easy to develop and demonstrate lawyering competencies. Perhaps it is only after graduation, when former students' attention turns definitively to practice, that the qualities Shultz and Zedeck's tests may predict can actually come into view. Another possibility is that today's law students aren't the same sorts of people as yesterday's, and that the psychological factors that might have predicted high competence in yesterday's students -- that is, in the current lawyers for whom the new tests correlated well with effectiveness -- don't work with today's students.

At any rate, there is clearly more to study here. Such studies won't be simple, as the 59 Tables accompanying Shultz and Zedeck's Final Report attest. But it is surely worth trying to figure out better than we now can who the most promising potential lawyers are among each year's applicants, and it is also surely worth building on the empirical effort Shultz and Zedeck have made to explain what the actual skills of successful lawyering are.

Terrorism, by Al Qaeda and the IRA

2011-03-12T08:51:00.000-08:00

I personally have experienced two acts of terrorism: one by Al Qaeda and one by the IRA.

As for Al Qaeda: I was at my school, New York Law School, when the two planes hit the World Trade Center about half a mile south on September 11, 2001. As I sat at my desk that morning I'd heard two thunks, which I thought at first were boxes being dropped on the floor somewhere upstairs -- but after I heard the news of the attacks I realized those were probably the two planes hitting the towers. As the morning went on, I stood outside on our corner and saw the towers burning, and then the cloud of dust from the collapse of one or both of them billowed up to about one small block short of where the law school sits.

And the IRA: I was sitting in my parents' flat in Knightsbridge in London when we felt or heard an explosion. That was the IRA's, or Provisional IRA's, bomb at Harrod's. I'd forgotten the date, but Wikipedia reports that it was December 17, 1983; I'd have been in England visiting my parents for Christmas vacation. Wikipedia also reports that 6 people were killed in that car bombing attack, including a U.S. citizen.

The IRA and Al Qaeda aren't morally equivalent. In a New York Times article reflecting on Representative Peter King, currently the scourge of supposed Muslim extremism in the US but formerly a strong supporter of the IRA, Scott Shane notes that the IRA's efforts mostly did not target civilians, whereas Al Qaeda obviously took aim directly at US civilians in the World Trade Center. I'd say the IRA's cause was more just than Al Qaeda's too, though it must be said that both groups had real oppression (Protestant rule in Northern Ireland, autocratic Arab governments supported by the US) to complain of, and in my opinion both were fanatical in their response.

A lot of very bad things have been done in wartime, and I think it's hard not to say that sometimes the end does justify the means. At the same time, a century's effort has built a body of international humanitarian law -- the more elegant and vague name now often given to the "law of war" -- that aims to minimize the means used, no matter what the ends, and that effort is profoundly important. By its terms, it is illegal for everyone to deliberately target civilians, and both the bombings that touched my life were exactly that. If Peter King doesn't see that these acts similarly deserved to be deplored, he's missing a crucial point.

A personal note -- remembering my father

2011-03-06T09:28:00.000-08:00

Amanda Sigler, a talented doctoral candidate at the University of Virginia, has just written an insightful biographical study of my father's work on his biography of James Joyce. (Amanda Sigler, "Joyce's Ellmann," Joyce Studies Annual - 2010, at 3-70.) It's startling to see one's father made the subject of study, but also enlightening. (As a good biography should, this study also makes reference to other people in its subject's life -- including my father's parents, my mother, my sisters, and, yes, me. All of us emerge unscathed.)

I'd always felt that my father's biographies were not only lives of the great writers he studied, but also expressions of himself. As much as he cared about each of his subjects (he wrote biographies of Yeats and Wilde as well as Joyce), and as much as he devoted himself to describing the details and the flavor of their lives, at the same time what he cared about in them he cared about in life as well, and so his accounts reflected his own response to life.

I learned from Sigler's article that my father knew this. It turns out that as he was working on the Joyce biography in the early 1950s, another scholar proposed that the two of them write about Joyce together. My father decided not to, and wrote to a friend and colleague, Ellsworth Mason, "I think I must proceed by myself; my notion of biography is that it should be a portrait of the writer as well as the subject, and I can't see how [the other scholar] and I would work together to constitute some sort of portrait a trois." (Quoted by Sigler at 20.)

What hadn't occurred to me, but Sigler sees, is that the process would work both ways. And this has to be right: as we infuse ourselves into what we do, so we ourselves learn from what we encounter. I always felt that I'd been raised partly on life experiences of James Joyce, and now I see better why that was. Sigler comments, for instance, that "for Ellmann, the little people were the important people, the small details essential to the composite whole. He had learned this lesson from Joyce, who insisted upon making ordinary men and women the subjects of his famous works." (Sigler at 58.) Joyce, as I learned myself when I read my father's work, once said, "I never met a bore" -- meaning that everyone is interesting if you engage with them. My father must have agreed, and the fact that these words of Joyce's stuck with me suggests that the lesson was passed on to me as well.

What's cause and effect here is hard to tease out. You study what you value, and you value what you study. But you're not a fixed entity either: everything you learn shapes you, every commitment of effort becomes part of your lifetime of choices. My parents denied that I was named for Joyce's Stephen Dedalus, and I'm sure that denial was sincere. Sigler (at 46) tells a similar story about my sister Lucy's name, and I believe my parents also denied that my sister Maud's name came from literature. But all these denials may also have been mistaken, for how could my parents (English professors both) help but value personally the writers and the words that they engaged so deeply with professionally?

We are what we study. We shape what we study so that it incorporates something of us. And we incorporate something of it into ourselves.

The Vaccine Injury Act case -- a problem for textualists

2011-02-28T05:54:00.001-08:00

On February 22, 2011, by a vote of 6 - 2 in the case of Bruesewitz v. Wyeth LLC, the Supreme Court decided that the National Childhood Vaccine Injury Act of 1986 absolutely bars lawsuits based on allegedly defective vaccine design, as long as the vaccine was manufactured to its own specifications and came with proper directions and warnings about any risks. This result may be a good one. It is quite possible that potential litigation -- in particular, many pending cases about the possible relation between the DTP (diphtheria, tetanus & pertussis) vaccine and childhood autism -- might be so burdensome that private manufacturers would simply abandon the making of badly needed vaccines. But the various opinions in the Bruesewitz case leave me with the impression that whether or not this result is a good one, it wasn't the one Congress intended. The need for legislation does not enact it, as Justice Frankfurter once remarked.

Here, in any event, I want to put to one side the question of Congress' intentions (as manifested in the legislative history, whose various elements the justices scrutinize), in order to focus just on the text of the statutory provision at issue. A textualist must come to grips with the text. To be sure, a textualist can rightly consider other parts of a statute (or even of other laws) in order to determine the meaning of the particular bit of text at issue in a case, and I'm going to leave to one side as well the question of whether other parts of the Vaccine Injury Act weighed in the Court's favor. It seems to me as a general proposition, however, that a textualist must find something very strong in other parts of a statute or other laws to justify avoiding the apparent meaning of the words directly at issue, and I doubt that there was anything strong enough to justify the extent of the avoidance in this case.

Let's look at the statute. As Justice Sotomayor says in dissent, the act asserts as a general rule that state law -- this would be the body of law governing liability for defective products -- governs vaccine cases. (42 U.S.C. 300aa--22). It goes on to state exceptions, including this one, 42 U.S.C. 300aa--22(b)(1):

"No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings."

What's wrong with the majority's argument that this statute bars all lawsuits for vaccine design defects, as long as the vaccine was "properly prepared" and came with "proper directions and warnings"? Here are several answers (most or all covered by Justice Sotomayor in her very effective dissent, which to my mind persuasively refutes the majority opinion by Justice Scalia, himself a master of statutory interpretation argumentation):

(1) The statute never says anything explicitly about design defects at all. If Congress had wanted to preclude all litigation based on design defects, it could have said "There is no liability for design defects." In fact, the statute doesn't even say in so many words that it has any relation to design defects at all. But it does, I believe: evidently vaccine litigation dealt with three issues -- warnings, preparation and design -- and the first two are explicitly referred to, suggesting that the discussion of "unavoidable side effects" is meant to refer to side effects from the third source, design. And while it is true that the statute fails to say "There is no liability for design defects," it also fails to say, "Liability may be found for design defects." So the argument from lack of explicitness is not conclusive, though I think the statute does come closer to explicitly affirming liability for design defects that aren't "unavoidable" than it does to explicitly denying such liability.

(2) The "if" clause (as Justice Sotomayor labels it): The statute says that manufacturers aren't liable "if the injury or death resulted from side effects that were unavoidable...." The use of the word "if" suggests that "if not" is also conceivable -- in other words, that some side effects are unavoidable but some are avoidable. But for the majority, as long as proper manufacture and warning are taken care of, there is no possibility of liability for design defect. In other words, there is no such thing as an "avoidable" side effect from a vaccine that is properly prepared and accompanied by proper warnings. This is an odd idea at best -- although evidently some courts in the years leading up to this statute had taken essentially this view -- and it's an idea that is very poorly conveyed by a clause beginning with "if."

(3) The meaning of the word "unavoidable": The majority maintains that if the design of a vaccine results in the risk of side effects, those side effects are unavoidable. But what if they could have been avoided by a different design? In that case, they just aren't "unavoidable" and so, for the statute to mean that all such side effects count as unavoidable, the word "unavoidable" has to have taken on some very odd definition, such as "avoidable, but not by this design" -- and textualists seek ordinary usage as a general rule, not idiosyncratic definitions, especially ones that are never spelled out.

To be sure, there's an exception to this focus on ordinary usage, for words that have become terms of art. There is in fact considerable discussion in the case of whether "unavoidable" was a term of art, but no one asserts that if it was a term of art, the consensus meaning it had acquired was "avoidable, but not by this design."

Somewhat remarkably, the majority claims that if "unavoidable" is read to mean "not avoidable by a different design" then "the word 'unavoidable' would do no work" (majority opinion at 7), on the ground that "[a] side effect of a vaccine could always have been avoidable by use of a differently designed vaccine not containing the harmful element." But Justice Sotomayor responds that "the harmful element" might be essential to the vaccine's efficacy, and that it's precisely in such cases that the side effects deserve to be called "unavoidable" -- whereas in other cases the side effects might have been avoided by better design, and would then be "avoidable." (Dissent at 14-15.)

(4) As Justice Sotomayor emphasizes, and the majority concedes, the net effect of the majority's reading is that 13 words of the statute -- italicized below -- turn out to have no meaning and to be completely superfluous:

"No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings."

This is just a huge problem for a textualist. Though I don't claim to have read every case where such issues have arisen, I've never encountered a case where a textualist such as Justice Scalia accepted so extensive a violation of the well-known interpretive principle that statutes should be read so that every word has meaning. What the majority says is that this violation isn't determinative, because (says the majority) on the dissent's reading another set of 15 words become superfluous -- the ones italicized here (the "even though" clause of the statute):

"No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings."

Scalia's argument is that for the dissent there's only one question -- were the side effects "unavoidable." (Majority opinion at 12.) But Sotomayor responds that the "even though" clause does have a function: it establishes that "unavoidable" side effects resulting from design defects are only exempt from liability if the vaccine was properly prepared and came with proper directions and warnings. If a manufacturer fails to prepare the vaccine properly or provide the directions and warnings that should accompany it, then even if the side effects of its design really are unavoidable, the manufacturer remains liable for them. It seems to me that this reading gives content to the "even though" clause, and therefore that the interpretive rule against finding portions of a statute superfluous quite clearly favors Sotomayor's reading.

(5) But the "even though" clause may also provide the strongest textual argument in favor of the majority's position. To say that "side effects ... were unavoidableeven though the vaccine was properly prepared and was accompanied by proper directions and warnings" seems to say that what might have made them avoidable was proper preparation and/or proper directions and warnings. The side effects are unavoidable even though -- despite, as Scalia says -- proper preparation, directions and warnings. Sotomayor's reading, on the other hand, seems to make "even though" mean "provided that" -- manufacturers aren't liable for unavoidable side effects provided that the vaccines were properly prepared and came with proper directions and warnings. Scalia gives this point a grammatical tag, telling us that the "even though" clause is "called a concessive subordinate clause by grammarians." (Opinion at 11.)

I think Scalia is right that Sotomayor's reading isn't "concessive." But the "even though" clause is awkward for all sides in this debate. After all, what makes the side effects unavoidable, on the majority's reading of the statute? The answer might be that we know these side effects are unavoidable "because" neither better preparation nor better directions and warnings could have avoided them. Otherwise their unavoidability is altogether undefined. "Because" is usually quite a ways from "even though," as Sotomayor argues (dissent at 17 n.14), but here, oddly, the meaning of these words seems to coincide. I think that on this score Scalia's reading is the more natural. Yet it's worth noting, as Sotomayor does, that Scalia's reading -- as discussed above -- actually means that the words "even though," along with the 11 words preceding them, lose all meaning, so that his emphasis on fidelity to the import of a concessive subordinate clause seems somewhat unsatisfactory. I think the main lesson to be drawn is that the statute is, truly, badly drafted. On balance, I also think Sotomayor's reading does a better job of giving meaning to as many words of the text as possible.

In short, I don't think the majority's reading of these words is easy to sustain on textualist grounds -- yet Justice Scalia is committed to textualist interpretation. Justice Sotomayor says that the majority's decision is "policy-driven," though she does so only in a footnote almost at the end of her opinion (dissent at 27 n.25). If I am right about the relative weakness of the textualist arguments in favor of the majority's position, that does suggest that something else -- policy -- drove the Court's thinking. It's possible to defend policy-driven statutory interpretation -- but not on textualist grounds. Indeed, textualists have been outspoken in objecting to other methods of interpretation, in which judges read statutory language in light of other evidence of legislators' specific intentions or broad purposes, as giving judges too much room to enact their own preferences into law. All of which makes Bruesewitz a problem for textualists.

Al Qaeda and the rise of freedom in the Middle East

2011-02-26T13:39:00.000-08:00

Among Muammar Qaddafi's bizarre comments as his fall from power in Libya approaches, one particularly interesting one was his accusation that the rebels were under the thrall of Al Qaeda. His notion was that Al Qaeda had imposed its will by enticing young people to take hallucinogenic drugs, but -- that bizarre idea aside -- Qaddafi's basic point was not crazy: Al Qaeda has indeed opposed the autocratic governments of the Middle East. Not because Al Qaeda opposes autocracy, at least in the form of theocracy, but because it sees these governments as tools of the West and obstacles to Islamist change.

So is the fall of several authoritarian Mideast regimes good for Al Qaeda? That is one possibility. A commentator on the news today (Saturday, February 26) mentioned that one of the Libyan tribes that has now turned against Qaddafi practices a fundamentalist form of Islam and has declared Islamic rule in its part of Libya. More generally, it's clearly possible that fundamentalists will prove the best organized and most determined citizens in the countries that have thrown off their previous rulers, and will install themselves in place of the old, more pro-Western autocrats.

But something else is possible too. It's often been said, and I think correctly, that Franklin D. Roosevelt helped save American capitalism -- even though many capitalists hated him, and even though he sharply attacked them in turn. Precisely because FDR's government paid attention to the needs and the voices of the American people, he was able to generate reforms that contributing to reestablishing a workable social contract in this country.

Something of the same thing may turn out to be true in at least some countries of the Middle East. (It's a very diverse place, so I don't want to generalize too much -- and even so I'm speculating!) It may be that the best way to stem the tide of Al Qaeda is for governments to come to power that listen to their people. If so, the fall of the governments that we relied on may in the end turn out to be not Al Qaeda's victory but the source of its eventual downfall.

The material witness statute and the rule of law

2011-02-21T11:50:00.000-08:00

On March 2, 2011 the Supreme Court will hear a case brought by an American citizen, Abdullah al-Kidd, who maintains that the government used the "material witness" statute to hold him without trial. (See Adam Liptak, Supreme Court to Hear Material Witness Case, N.Y. Times, Feb. 20, 2011). As Liptak explains, Kidd's argument is "that policies put in place by Mr. Ashcroft [George W. Bush's first Attorney General] twisted the federal material witness law -- which allows the government to arrest people with knowledge of others' crimes to make sure they are available to testify -- into a preventive detention measure of the sort used abroad to hold and investigate citizens who are themselves suspected of terrorism."

There are indeed other countries that explicitly authorize preventive detention. The practice has a grim history -- apartheid South Africa's slide into a security state featured a number of such laws, for example -- but it also clearly has adherents. But this case poses a special rule of law question: if the material witness statute really was written to authorize holding only those known to be actual witnesses, rather than to authorize holding people for investigation into whether they might turn out to be witnesses, did the fears of terrorism after 9/11 make it legitimate to turn this law to uses which on a fair reading of its terms just weren't authorized?

It's possible, of course, that the statute doesn't spell out its intended application with much clarity, or that its intended uses weren't as narrow as I've just suggested. No doubt these points will be argued in full. But suppose it turns out that the issue is just as I've described: can a statute be twisted away from its original meaning because of the danger of terrorism?

It is, of course, possible to say that the answer to that question is "yes." It's especially possible to say so in a true, unmistakable emergency, when there simply isn't time to use the processes of law. Since I'm writing on Presidents' Day, it's particularly appropriate to remember that Abraham Lincoln apparently took this view when he claimed for himself the power to suspend the writ of habeas corpus. The Supreme Court never ruled on whether Lincoln actually had the constitutional authority he claimed. But after the Civil War, in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 109 (1866), the Court emphatically insisted on the limits on governmental power even during wartime, in a decision that candidly acknowledged that a wartime judgment might have been different:

"During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment."

We are not yet through with the war against Al Qaeda. But we have been at it long enough to know how corrosive the logic of national security can be. Moreover, Mr. al-Kidd was not the victim of a panic-stricken move a few days after September 11, 2001. He was arrested in March 2003. We had had time to move somewhat beyond panic. More important, as a matter of legal and constitutional reasoning, we had had time for Congress to legislate to provide the Administration with any new powers that it wanted. If it didn't seek, or couldn't get, a preventive detention law applicable to U.S. citizens, then there was no such law. And if we are to continue fighting this war, while maintaining our liberties, then we need to be able to rely on the bedrock rule that if there is no such law, then what the government did was without law -- and illegal.

In one respect, however, the issue is more complicated. It could be argued -- and has been -- that the President's duty to protect the nation authorized him to take emergency steps that went beyond otherwise applicable law. Once this argument is accepted, it is hard to see what outer limits there are on it, but it is possible to make the argument nonetheless. What may have happened to Mr. al-Kidd, however, is something else: the President did not assert some special emergency authority to act beyond law, but rather, through Attorney General Ashcroft, twisted a law that did exist and purported to act under it. If there is some sort of residual emergency power that Presidents can wield, our liberty is certainly at risk. But it is less at risk if the President must call that power by its name -- rather than hiding its exercise under the forms of ordinary law. It will be up to the Supreme Court to defend the boundaries of the ordinary law, even if the question of extraordinary law still waits for debate some other day.

Freedom in Egypt

2011-02-12T08:20:00.001-08:00

I don't know whether the overthrow of Mubarak will lead to democracy or to some new form of tyranny. But I do know that this moment, right now, is a flowering of human liberty. It's a beautiful thing to see.

In the short-term, it's certainly good. In the middle-term, the consequences are far from clear. Perhaps that's why the US aligned itself with so many dictators in the Arab world -- there was no way to see a path that led dependably out of tyranny towards stability and freedom. That remains true. But to put the same truth in different words, it seems clear now that there was no way to move toward freedom except by dismissing the old order.

So now we are in a state of uncertainty, but one graced with the beauty of an act of self-liberation. There's a moment like this in the movie Pleasantville, a movie about the irresistible wish for freedom and about its costs. What will happen next, one of the characters asks another, after their life together has been turned upside down, and she answers that she doesn't know.

What will happen to us? We just don't know. We never know. But if we are to move forward towards an ideal of free people living justly together, we have to move. And now we -- that is, the people of Egypt -- have.

While feeling ice crack under my feet

2011-02-07T17:04:00.000-08:00

The other day, in the midst of this snowy winter, I found myself walking over ice on my back porch. The ice was cracking under me, and I could feel and hear it with each step. I realized that the sound and the sensation were familiar, and that I had liked them ever since I was a child. And it occurred to me that while ice would crack even if no one was there to witness it, only living beings could find it beautiful.

What would the universe be without us to observe it and admire it? Life is a gift, we often say, and this is part of what is given -- the chance to see all the beauty and wonder of the world. Perhaps in some way our admiring is our own gift in return -- we look on the world and praise it.

Did Someone feel that the universe should be a place whose beauty would not be wasted? I'm feeling inclined to think so. How to explain the suffering of innocents in this same world, I don't know -- perhaps the only universe that could be created was one in which joy and sorry were always intermingled, and perhaps Someone looks at our suffering with compassion and hopes we will find ways to ease it.

Perhaps not. It may all be accident. But what a lucky accident indeed, to have the gift, or opportunity, of life.

On why we don't know much

2011-02-05T10:17:00.000-08:00

One of many reactions to Amy Chua's account of "Chinese parenting" was Elizabeth Kohlbert's observation, in The New Yorker, that American young people test way behind their peers elsewhere but stand out compared to kids in other countries on at least one index: self-esteem. Much as one can (rightly) deplore a demand for excellence that falls into cruelty, calling for achievement by one's kids -- and kids in general -- is good rather than bad.

Is it true that Americans no longer call for achievement by their kids, and that that is the reason our kids seem not to be learning very much? Well, maybe. But these are the same Americans who, it's been found, work quite long hours every year. (Wikipedia presents a table of Organization of Economic Co-operation and Developmwent [OECD] data from 2002 showing the average annual work year in the US at 1777 hours. Only six countries in the table had longer work years, none of them in Western Europe, and workers in a number of West European countries, including France and Germany, annually worked 400 hours less -- as if they had all taken 10-week vacations that their US counterparts didn't get.) We're not, as far as I can tell, a lazy nation. So why would we be indifferent to how much our kids learn?

In fact, I don't think we are indifferent to how much our kids learn. I think many parents, teachers, and kids -- from all sorts of social backgrounds -- are deeply committed to academic excellence. But I do suspect that as a nation we may have become somewhat ambivalent about academic achievement -- even that many of us who cannot stop caring about it and guiding our children to care about it are, at the same time, uneasy about what we are accomplishing. Why?

No doubt there are many reasons, but here is one possibility: that we are ambivalent because we tend to associate high academic achievement with claims to privilege. We have very good reason to want to dismantle the embedded privileges of particular groups within our society. But it is entirely predictable that those who have privilege will tend to be high academic achievers -- since they enjoy the benefit of all the forms of capital, cash and cultural, that fuel high achievement in school. Obviously many unprivileged people achieve marvellously too; I don't mean to deny that in the least, but rather to try to discern why our country seems distracted from fostering high achievement more widely -- and my thought is that it is tempting to discount high achievement, because it appears as a corollary of privilege.

If we say often enough that test scores are not a mark of true talent (and we do say this a lot, and what's more there's a lot of truth to it), perhaps eventually we communicate to the test-takers that their test scores don't matter so much, because those scores don't measure their true talent. And perhaps we also tend to communicate to teachers that fostering high test scores isn't a central objective, because, again, those scores don't measure true talent (or, to extend the idea, true learning). Then we set about to find what might better measure or elicit true talent, and as admirable and valuable as that search is, it may divert attention from more traditional educational steps which likely have considerable power in imparting the knowledge that our young people need to acquire in order to be educated.

Here's another data point. Richard Arum and Josipa Roksa, authors of Academically Adrift: Limited Learning on College Campuses (2010), report in The Chronicle of Higher Education -- based on testing and retesting of students using a standardized test called the Collegiate Learning Assessment -- that over a third of US college students "did not show any significant improvement over four years" in the "higher-order cognitive skills that it is widely assumed college students should master."

If their finding is correct -- and I'm sure there is much still to be debated on this score -- then it is remarkable on two grounds. First, it forces one to ask what all those students, and their professors, were doing in their years together. But, second, and perhaps even more pointedly, it raises the question of what the accreditation agencies that approved all these schools were doing. My impression is that in universities over the past decades elaborate effort has gone into articulating teaching objectives and assessing their achievement, and as I understand it no college or university today can get accredited without having such an apparatus for demonstrating the success of the educational process in place. So it appears that it is quite possible to have objectives for higher education and systematic assessment of their attainment -- institutional features that incidentally take plenty of time and resources to create -- and ... not educate.

It is possible to argue that the assessment apparatus undercuts true education. This is roughly the case widely made against elaborate objective testing (and I think this case has merit). Yet it also seems possible that actually the assessment apparatus winds up playing a different role -- that it functions to create the illusion of education, while masking the fruitless churning that's actually going on. This function would fit comfortably with Arum and Roksa's sense that despite their findings, higher education is not in crisis, because "the institutional actors implicated in the system are receiving the organizational outcomes that they seek, and therefore neither the institutions themselves nor the system as a whole is in any way challenged or threatened." Arum and Roksa note that there is, apparently, a long tradition of college not educating very much. But perhaps something has also changed. I wonder whether our assessment systems have failed to catch this lack of education in part because we created our methods of assessing our colleges at the same time that we were growing ambivalent about simple "achievement" as a central function of schools.

I think that there is a sense in which all our children truly are above average. Human beings are marvelously talented, and a world that allows those talents to flourish will be one with many virtues. If "average" means "just okay," we may all have the potential to be better than that. But not if we don't learn what's needed to make our way in the world.