Saturday, June 30, 2007ABA Must Report to the Department of Education re Application of its "Diversity" Standard:
Inside Higher Ed has the details. This is a significant victory for those of us who have noted the ABA's abuse of its accreditation power to impose arbitrary and often counterproductive rules on law schools. You can find previous discussions of the controversy here, here, here, and here. Thanks to Instapundit for the pointer. Supreme Court Wrap-Ups:
Like the Federalist Society, the American Constitution Society held an end-of-term review that is available here. SCOTUSBlog rounds up some end-of-term analyses here, and has a statistical summary of the term here. I also can't help noting my appearance on the PBS Newshour with Goodwin Liu. Related Posts (on one page): Saturday song lyrics
I've never blogged song lyrics before, but these, sent to me by Jeffrey Grimmer, reminded me of Richard Epstein: The song is called "Effect & Cause" and it's from the White Stripes' new album Icky Thump: Well, in every complicated situation, You're the human relation, Makin' sense of it all, Take a whole lot a concentration Well, you can't take the effect, And make it the cause, I didn't rob a bank, Because you made up a law, When you people robbin' Peter, Don't you blame Paul, Can't take the effect, And make it the cause I ain't the reason that you gave me no reason to return your call, You built a house of cards and got shocked when you saw them fall, Well are you sayin' I'm innocent?, In fact the reverse, But if you're headin' to the grave, You don't blame the hearse, You're like a little girl yellin' at her brother, 'Cause you lost his ball Friday, June 29, 2007Federalist Society Panel on the Supreme Court Term:
Yesterday, the Federalist Society held a webcast panel on the Supreme Court term, featuring co-conspirator Orin Kerr, my GMU law faculty colleagues Nelson Lund and Neomi Rao, prominent DC lawyers David Rivkin and Gene Schaerr, and yours truly. Law nerds everywhere will be happy to know that the webcast is now available for your viewing pleasure here. Among other things, I discussed Wilkie v. Robbins and the tension between the "judicial restraint" and textualist/originalist strands in conservative jurisprudence. Near the end of the panel, Orin and I debated the question of whether courts should give statutes enacted by Congress a "presumption of constitutionality." As longtime readers can probably guess, my answer was an emphatic "no," and Orin's a "yes." Related Posts (on one page):
Supreme Court Agrees to Take Guantanamo Bay Cases:
Wow — the Supreme Court has granted cert on the D.C. Circuit's Guantanamo Bay cases, Boumediene and Al Odah. What's remarkable about this isn't that the Supreme Court agreed to hear them, but how: the Court denied cert at first back in April, with several Justices writing opinions in the cert denial, and then granted a petition for rehearing. This is extremely unusual, and it is probably a pretty good sign that a reversal is likely. My take on some the legal issues can be found in my recent Senate testimony, available here. This is what I said about the D.C. Circuit's decision that will be reviewed:
[T]he reasoning in that decision is in obvious tension with the Supreme Court's language in Rasul. In Boumediene, the D.C. Circuit concluded that Guantanamo Bay is part of Cuba, not the United States, and that application of the habeas statute to persons detained at the base would not be consistent with the historical reach of the writ of habeas corpus. Judge Randolph rejected the relevance of Rasul in a short footnote. See id. at 992 n.10. Although the Supreme Court denied certiorari in Boumediene for procedural reasons, it seems highly likely that the Court will agree to resolve this issue in a future case. Given that Judge Randolph's approach in Boumediene is in obvious tension with the language found in the majority and concurring opinions in Rasul, it seems likely that a majority of the Supreme Court will view the case differently than did the D.C. Circuit in Boumediene.Here's my question: What are the chances that this grant will push the Bush Administration to shut down Gitmo? Thursday, June 28, 2007A Factual Correction
from Jim Ho (a friend of mine who is an appellate lawyer at Gibson, Dunn & Crutcher) to Justice Stevens' opinion in Parents Involved in Community Schools v. Seattle School Dist. No. 1:
Without doubt the overwhelming majority of nonwhite children barred from better schools by de jure segregation were black; nonetheless, Jim is quite right to observe that even in the Supreme Court's opinions the "only black schoolchildren" is an overstatement. (Note, incidentally, that the Jefferson County, Kentucky policy that the Court struck down in Parents Involved in Community Schools treated Asian-American students the same as whites for purposes of the race-based enrollment caps and floors; the Seattle policy treated them the same as blacks for purposes of the enrollment caps and floors.) School Case Blogging:
There's lots of excellent blogging out there today on the Supreme Court's decisions on the use of race in public schools. I was particularly interested in posts by Eric Muller, Paul Horwitz, and Jack Balkin. Are there other posts you think are particularly good? Be sure to link to them in the comment thread.
SCOTUSblog on Justice Kennedy's Term:
Jason Harrow (SCOTUSblog) tells us how unusual Justice Kennedy's 97% batting average is. (Kennedy was in the minority in only 2 of the 71 cases he participated in this Term.)
Related Posts (on one page):
Supreme Court Creates New Exception to Habeas Limitations for Ford Claims:
Today's death penalty decision in Panetti v. Quarterman created a new exception to AEDPA's ban on federal court jurisdiction over "second or successive" habeas petitions. I think Justice Kennedy is exactly right that Congress should have written such an exception; as a matter of policy, I think the Court's new rule makes a lot of sense. But Congress didn't actually write such an exception, and I thinik the Court's attempt to create the new exception by judicial construction is pretty unpersuasive.
First, a bit of background. The Eighth Amendment prohibits capital punishment if at the time of the planned execution the subject is insane. This means that lawyers for the subject may need to bring claims about the person's sanity soon before the execution is planned; the subject may have turned insane just weeks or months before the execution, long after the subject's habeas claims have been adjudicated. This creates a bit of a puzzle. On one hand, Congress is very interested in giving inmates just one shot at federal habeas relief. On the other hand, claims of insanity can arise at any time, and state courts may be uninterested in looking closely at those claims. The seemingly obvious solution is to create an exception to the usual rule (that inmates get only one shot at federal habeas relief) just to cover these sorts of claims. The problem is that Congress didn't create such an exception. Here's what Congress said in 28 U.S.C. 2244 about federal court review of claims in habeas petitions brought the second time around: (1) A claim presented in a second or successive habeas corpus application . . . that was presented in a prior application shall be dismissed.The only exception to the rule that claims in second or successive petitions must be dismissed is really narrow; it pretty much just covers new retroactive rules and actual innocence claims. There is no exception for insanity claims (which are known in the biz as Ford claims, after Ford v. Wainright). That brings us to the Panetti case handed down today. Panetti filed a claim for federal habeas relief that was litigated in the federal courts from 2001 to 2003. Although Panetti had shown mental illness throughout his case, and his competency was a major issue at trial, he did not raise a Ford claim in his first petition. In 2004, Panetti then filed a second federal habeas petition, this time raising the Ford claim. The question is, did the ban on claims in "second or successive" apply? The state thought it did: It argued that the law was actually really clear here, and that this was a second petition that didn't fall within any exception. The Supreme Court disagreed 5-4. Writing for the majority, Justice Kennedy recognized that the state's argument "has some force." But he concluded that it was flawed because of "[t]he results it would produce" when paired with an earlier decision, Stewart v. Martinez-Villareal. In Stewart, the Court had held that if an inmate brings a Ford claim in his first petition that is dismissed because it is not ripe, the inmate can bring the claim later when it becomes ripe; according to the Stewart case, refiling the dismissed claim is really just a continuation of the earlier claim dismissed on ripeness grounds. In today's decision, the Court looked at the statute and the Stewart decision and concluded it would be really weird if a petitioner could bring the claim again if he had brought it prematurely before (the holding of Stewart) but not if he hadn't brought it at all. That couldn't be right, Justice Kennedy reasoned: "This counterintuitive approach would add to the burden imposed on the courts, applicants, and the States, with no clear advantage to any." But how to get around the pretty clear statutory language prohibiting such petitions? The majority starts by saying that the phrase "second or successive" is "not self-defining." According to the Court, the phrase takes "full meaning" from the Court's caselaw. Among that caselaw is Martinez, which, like other habeas cases, discussed the public policy implications of its holding. Therefore the court can be influenced by the public policy implications of the rule at issue in this case. And when you look at those implications in light of the Stewart precedent, the policy arguments all go one way. When paired with Stewart, Congress's rule would require inmates to file unripe claims just to make sure they aren't stuck with the ban on second or successive petitions. There's really no good argument to be made for that rule; it would require arguments "to be raised as a mere formality, to the benefit of no party." Congress could not have intended such a result. Thus the Court announces a new rule: "The statutory bar on 'second or successive' applications does not apply to a Ford claim brought in an application filed when the claim is first ripe." As the court writes elsewhere, "We conclude . . . that Congress did not intend the provisions of AEDPA addressing 'second or successive' petitions to govern in the unusual posture presented here: a 2254 application raising a Ford-based incompetency claim failed as soon as that claim is ripe." The problem, as I see it, is that looking at the public policy implications of ambiguous statutory text is pretty different from using policy arguments to ignore text that is really quite plain. If there was a constitutional argument to be made, the Court should have made it. But Congress didn't write the exception it should have written, and absent a constitutional claim it wasn't the Court's job to write it for them. UPDATE: On a closer reading of Stewart, I do think the issue here is closer than I thought at first. Stewart is a very brief Rehnquist opinion that has pretty opaque reasoning, but that isn't closely focused on the text. I think that does provide some authority for taking a "common law" approach to the text here (that is, not paying much attention to it), making this decision less objectionable than I had first believed. Picker on Leegin:
Over at the University of Chicago Faculty Blog, Randy Picker weighs in on this morning's antitrust decision.
Number of Cases Without An "Opinion of the Court":
Here's the statistic I want to know about the Supreme Court Term: How many decisions were there that had either no majority opinion or only a partial majority opinion? My vague impression is that there were unusually few of those cases this Term. Does anyone know if that impression is right? (I actually started to tally the cases, but gave up after about 15 decisions figuring that someone else must have looked at this.)
UPDATE: In the comment thread, Jason Harrow of SCOTUSblog weighs in with the answer: We at SCOTUSblog have looked at this number. This Term, we counted four pluralities: TSSAA, FEC v. Wisc. Right to Life, Hein, and Parents v. Seattle Schools (details here). That number is not necessarily lower than previous Terms. According to our previous stats, there were 3 plurality opinions in OT05, 1 in OT04, 3 in OT03, and 5 in OT02. Hope that's helpful.It is, thanks! Justice Kennedy in Majority in All 24 5-4 Cases This Term:
Is this the first time any Justice has had such a tally? SCOTUSblog's SuperStatPack also reports that he was in the dissent in only 2 of the 71 cases in which he participated — is that, too, a record, at least in recent years? Note that the 24 5-4 cases came out with Kennedy joining the four conservatives 13 times, the four liberals 6 times, and no easily identifiable bloc 5 times. Thanks again to Jim Ho of Gibson, Dunn & Crutcher for first raising this point to me, when Kennedy was merely 16 for 16. Related Posts (on one page):
Shadowboxing and the Infectious Spread of Ideological Battles:
In addition to the big school cases that were decided today, the Supreme Court also decided an antitrust case, Leegin v. PSKS. In Leegin, the Court overruled a 1911 case (Dr. Miles Medical Co. v. John D. Park & Sons Co., for those of you scoring at home) to find that vertical price restraints should be judged under the rule of reason rather than be treated as per se unlawful (as Dr. Miles had held). You can be forgiven if your eyes are already glazing over. What's striking about this case is the lineup -- 5-4, with the conservative 5 (Kennedy writing) against the liberal 4. Obviously, I am oversimplifying in using the terms "conservative" and "liberal," because the camps aren't that neat. But that's precisely what's so remarkable about this case -- they fell into that familiar 5-4 lineup on an antitrust case with little ideological baggage. Maybe we shouldn't have been surprised when politically charged cases like today's school cases just happened to have 5 conservatives against 4 liberals. But this is antitrust, not some hot-button issue. Indeed, recent antitrust cases have not followed ideological lines. Some antitrust cases have been unanimous, like Weyerhaeuser v. Ross-Simmons from this Term, NYNEX v. Discon from 1998, Verizon v. Trinko from 2004 (Stevens concurred separately in that one), and State Oil v. Khan (which overruled a prior precedent) from 1997. Others have been split, but have not rigidly followed ideological lines. Notably, California Dental v. FCC from 1999 was 5-4, but Souter wrote with most of the conservatives and Kennedy dissented with most of the liberals. Meanwhile, Bell Atlantic v. Twombly from this term was 7-2, with Souter writing and Stevens and Ginsburg dissenting. And the predictions for Leegin this Term were not for a 5-4 split of conservatives and liberals. So what gives? I fear that this reflects shadowboxing and the spread of ideological battles from hot-button cases to other ones. What the dissent in Leegin really says is that there is no good reason here to reject stare decisis, and emphasizes that the arguments against Dr. Miles have been aired for 50 years but Congress has not seen fit to reject it. Translation: respect stare decisis, and look to Congress; please don't go too far now that you have the majority, and respect the decisions of Congress (which happens to have had a recent change in its leadership). The majority responds that stare decisis is not an inexorable command and that Congress's failure to act is of no great significance. Translation: we will overrule as we see fit, and don't feel the need to defer to Congress on this or much of anything else. The dissent highlights this shadowboxing at the end, where Breyer flatly states: "It is difficult for me to understand how one can believe both that (1) satisfying a set of stare decisis concerns justifies overruling a recent constitutional decision, Wisconsin Right to Life, Inc., ante, at 19-21 (Scalia,J., joined by Kennedy and Thomas, JJ., concurring in part and concurring in judgment), but (2) failing to satisfy any of those same concerns nonetheless permits overruling a longstanding statutory decision." It could all be coincidence, of course. The liberal justices have dissented on some previous cases. But I fear that what's really happening is that ideology has infected an area of law that used to be about as non-ideological as the Supreme Court gets. And if ideology were to infect this area of the law, then why should we have any confidence in the Court's antitrust judgments, and why shouldn't Congress rein in the Court's broad authority under the antitrust statutes? The Supremes rule resale price maintenance can be OK:
Here is one story. The case for pure illegality of resale price maintenance (RPM) has never been very strong. Since we don't understand price stickiness well, it is no surprise we also don't understand RPM very well either. At least on the surface that is an argument for a case-by-case approach if not something even looser. My casual guess is that > 50% of RPM represents a desire to collude and raise prices. Nonetheless allowing RPM, even when it is collusive, just doesn't matter very much. RPM enforcement has been weak for various periods of time, most of all under the Reagan Administration, without retail disaster striking. Market-oriented economists exaggerate the "ancillary services" hypothesis developed by Lester Telser, namely that RPM keeps services flowing ("informative stereo salesman" is the paradigmatic example). Supposedly, without RPM everyone would get sales help at the expensive store but buy at the discount store; in the equilibrium all stores would be discount stores and poor consumers would wander through the world without sales help. In reality RPM has often been used for lots of the small or even trivial items you see for sale in drugstores. I attach greater credence to the Ben Klein hypothesis that RPM represents a kind of "efficiency wage" to discipline retailers and force them — through threat of product cut-off — to present the item in a desirable fashion. (In Telser's hypothesis the services flow automatically after RPM is instituted, through a desire to capture customers and extra profits, but why should the extra services supplied then be the ones subject to the free-rider problem, rather than some other side benefits?) Even when cartelization is the motive, I don't worry that Colgate will monopolize the market for toothpaste. Most or all retail products face lots of competition from the products of other manufacturers. I also don't think that so many business decisions should become primarily legal decisions; our government has enough real crimes to look after. So in my view RPM should be close to per se legal (certainly not per se illegal), with some possible exceptions for resource-based monopolies, not that I can think of any relevant exceptions in the retail context. Arguably government should not enforce RPM agreements, though product pulling is in any case the major means of implementation. Here is Greg Mankiw on resale price maintenance. Here is an Econoblog on resale price maintenance. Here is Wikipedia. Here is some Supreme Court discussion. Parents Involved in Community Schools v. Seattle School District,
the case involving race in public schools, is here. Chief Justice Roberts wrote the plurality/majority opinion that had Kennedy in parts but lost him in others. Justice Kennedy concurred; according to Kennedy, Roberts' opinion went too far in some respects. Justice Breyer filed a 77-page dissent, joined by Stevens, Souter, and Ginsburg, which argues that the plurality opinion would "break the promise of Brown." Justice Thomas concurred, filing a 35-page response to Justice Breyer. Justice Stevens filed a brief dissent, which among other things expresses JPS's "firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision."
Panetti v. Quarterman:
The Court handed down Panetti v. Quarterman this morning, a case on application of the death penalty to individuals with serious mental illness. In an opinion by Justice Kennedy, joined by Stevens, Souter, Ginsburg, & Breyer, the Supreme Court overturned a Fifth Circuit ruling that a death row inmate can be executed if he understands that he is being put to death for murder but due to mental illness thinks the state's reason is a sham. The key passage:
Gross delusions stemming from a severe mental disorder may put an awareness of a link between a crime and its punishment in a context so far removed from reality that the punishment can serve no proper purpose. It is therefore error to derive from Ford, and the substantive standard for incompetency its opinions broadly identify, a strict test for competency that treats delusional beliefs as irrelevant once the prisoner is aware the State has identified the link between his crime and the punishment to be inflicted.Justice Thomas dissented, joined by Roberts, Scalia, and Alito. Justice Thomas argues that the Court fudged its way around AEDPA to get to the merits of the case de novo, and that once there the Court's view of the constitutional requirements have no basis in the key precedent in the area, Ford v. Wainright. Shortcomings of the Thomas-Scalia view of Wilkie v. Robbins and Damage Remedies for Violations of Constitutional Rights:
As promised in my last post, I will now critique the Thomas-Scalia view of Wilkie v. Robbins. The two most conservative Supreme Court justices categorically reject the principle - most clearly established in the 1971 case of Bivens v. Six Unknown Federal Agents - that federal courts may sometimes exercise the power to order the government to pay damages in order to remedy the violation of a constitutional right. As explained in Thomas' concurring opinion (joined by Scalia):
Thomas and Scalia believe that Bivens was wrongly decided, and its reach should be limited as much as possible. As I noted in my previous post, the Thomas-Scalia view - unlike Justice Souter's majority opinion - has the virtue of treating property rights the same as other constitutional rights. All will receive the same (sometimes inadequate) level of protection. But that is about the only virtue of the Thomas-Scalia view. In other respects, it is seriously flawed. The most fundamental duty of the federal courts is to overrule and remedy governmental violations of the Constitution. In some cases, an award of damages is the only adequate remedy available, or even the only possible remedy of any kind. Consider, for example, the case of an innocent man victimized by an unconstitutional search or seizure. The standard remedy of the exclusionary rule is useless to him - at least if he is going to be acquitted anyway. The only feasible way to compensate him for the violation of his rights is an award of damages. In some cases, other remedies are available, but they are not sufficient to fully remedy the violation of the victim's rights. The Wilkie majority opinion concedes (and Thomas and Scalia do not dispute) that this was true in Wilkie itself. In such situations, it is axiomatic that the courts have a duty to provide a remedy that fully compensates the victim for the violation of his constitutional rights. Any other approach is both unjust to the victim and provides poor incentives for the government by allowing it to avoid bearing the full cost of its actions. Justices Thomas and Scalia seem to believe that judicial decisions ordering a damages remedy somehow constitute judicial policymaking in a way that decisions ordering other kinds of remedies do not. I agree that damage remedies are sometimes unwise and often inferior to other available remedies. However, I don't see why a damage remedy is inherently more "activist" or more intrusive on the powers of the political branches than alternative remedies such as injunctive relief or facial invalidation of a statute - remedies that Thomas and Scalia consider to be perfectly legitimate. In many cases, an injunction or invalidation of a statute will actually constrain the political branches more than damage payments do. Some defenders of the Thomas-Scalia position argue that the choice of remedy for rights violations by federal agents should be left up to Congress. If Congress provides an adequate remedy by statute, perhaps the courts should indeed defer to it even if the judges would personally prefer some other remedial scheme. Often, however, Congress will provide either an inadequate remedy or no remedy at all. Congress often cannot be trusted to provide adequate remedies for violations of constitutional rights for exactly the same reasons that it cannot be trusted to refrain from enacting policies that cause rights violations in the first place. The institution of judicial review is necessary precisely because the legislative and executive branches will often be tempted to exceed constitutional limits on their authority. That temptation applies to both rights violations and remedies. Indeed, a legal regime under which the government can get away with refusing to remedy violations of constitutional rights is little different from one without any constitutional limits on government power at all. Related Posts (on one page):
Wednesday, June 27, 2007Tomorrow Morning:
Don't forget to tune in tomorrow morning for what will probably be the release of the Supreme Court's last three decisions of the Term: the school/race cases (likely win for the conservatives), the death penalty/mental illness case (likely win for the liberals), and the antitrust/retail prices case (likely win for, well, I have no idea, I didn't follow it). Lyle Denniston offers us his best guess for how the morning will unfold here.
In a perfect world, the Court would post the opinions on the Court's website just as the opinions are announced in the courtroom. That way, the Court wouldn't induce the 30 minutes or so of anxiety that follows when Supreme Court geeks around the country know the outcome in important cases but can't yet access the opinions. But we're not yet in that perfect world, so instead we have to hit "refresh" over and over until opinions start to show up at SCOTUSblog or How Appealing around 10:30 or 10:45. Anyway, come back tomorrow for the goods; I'm sure we'll have commentary throughout the day. Federalist Society Webcast on SCOTUS Term:
The Federalist Society will have a webcast tomorrow afternoon from noon-2:00 on the SCOTUS term in review. You can watch it here. Ilya and two other GMU colleagues (Nelson Lund and Neomi Rao) are participating along with David Rivkin and Gene Schaerr. Related Posts (on one page):
Lithwick on What's Wrong With the Roberts Court:
Over at Slate, Dahlia Lithwick is trying to figure out why she has such strong objections to the Roberts Court. Lithwick notes that among liberal commentators, it is widely believed that the problem with conservative Justices is that they are "just plain mean." Lithwick suggests the problem may be elsewhere; perhaps the conservatives are not so much personally mean as lacking in some other quality. But she can't quite figure out what that quality is. She writes:
Now maybe the Roberts Five [Roberts, Scalia, Kennedy, Thomas, & Alito] really are bilious and rageful. In which case I guess we should call them that. But I didn't think calling conservatives "mean" was a smart tactic during those confirmation hearings, and I don't think it's smart now. Still, I am struggling now as I was back then to define what judicial quality Roberts and Alito seemed to lack.Perhaps VC readers can help Lithwick identify the elusive quality she is trying to articulate? UPDATE: Reader suggestions probably should be phrased to allow the narrative to flip 180 degrees tomorrow when the school cases are handed down. What Justice Thomas's Morse Concurrence May Mean for University Speech Codes:
Justice Thomas's concurrence in Morse argues that the First Amendment doesn't restrict public school authorities' power over student speech. But while the opinion focuses only on the issue at hand -- speech in K-12 schools -- a good deal of the arguments there would apply equally to speech in colleges and universities. Justice Thomas's argument is basically structured as follows; my remarks regarding to how this argument applies to universities appear in italic. 1. Original meaning: "[T]he history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools." This also extends to the First Amendment as applied to the states by the Fourteenth Amendment, which was enacted in 1868. I'm not an expert on the history of speech restrictions in universities, but my tentative understanding is that the First Amendment was not seen as constraining such restrictions, at least until the 1950s or later. In particular, a. "Because public schools were initially created as substitutes for private schools, when States developed public education systems in the early 1800's, no one doubted the government's ability to educate and discipline children as private schools did." Public colleges and universities likewise developed after private ones, and in some measure as alternatives for private ones. b. "Like their private counterparts, early public schools were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled 'a core of common values' in students and taught them self-control.... Teachers instilled these values not only by presenting ideas but also through strict discipline. Schools punished students for behavior the school considered disrespectful or wrong [including] idleness, talking, profanity, and slovenliness[]." [Footnote: "Even at the college level, strict obedience was required of students: 'The English model fostered absolute institutional control of students by faculty both inside and outside the classroom. At all the early American schools, students lived and worked under a vast array of rules and restrictions. This one-sided relationship between the student and the college mirrored the situation at English schools where the emphasis on hierarchical authority stemmed from medieval Christian theology and the unique legal privileges afforded the university corporation.'"] The footnote expressly suggests this reasoning historically applied to college students. c. In particular, public schools were seen as operating "in loco parentis," which is to say in place of the parents and with the rights that parents have to constrain and discipline their children. [Footnote: "My discussion is limited to elementary and secondary education. In these settings, courts have applied the doctrine of in loco parentis regardless of the student's age. Therefore, the fact that Frederick was 18 and not a minor under Alaska law is inconsequential."] The footnote expressly limits the argument to K-12 schools, but I'm not sure the logic can be so limited: As I understand it, colleges were also understood as operating in loco parentis, partly because throughout much of America's early history the age of majority was 21 rather than 18. 2. "To be sure, our educational system faces administrative and pedagogical challenges different from those faced by 19th-century schools. And the idea of treating children as though it were still the 19th century would find little support today. But I see no constitutional imperative requiring public schools to allow all student speech." a. In particular, this is because "Parents decide whether to send their children to public schools. Cf. Hamilton v. Regents of Univ. of Cal., 293 U.S. 245 (1934) ('California has not drafted or called them to attend the university. They are seeking education offered by the State and at the same time insisting that they be excluded from the prescribed course ...')." Again, this expressly relies on a university case; and its logic applies even more to public universities than to public schools -- no-one is legally requiring anyone to go to a public university or to any university at all, while children are legally required to go to at least some public K-12 school. b. "If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move. Whatever rules apply to student speech in public schools, those rules can be challenged by parents in the political process." This too applies fully to universities, though of course substituting pupils (and in some measure their families) for parents. c. The main alternative to this approach—the Tinker standard for when student speech is to be protected—is too subjective and malleable. This may well not apply to universities. The current rule, as applied by the few Supreme Court cases on university student speech and by the many more lower court cases, seems to be that student speech (outside class and class assignments) is fully protected, subject of course to the usual caveats applicable in all speech contexts. Such a rule would be pretty clear; the question is whether Justice Black would think that it's right. d. It's important to maintain "the traditional authority of teachers to maintain order in public schools. 'Once a society that generally respected the authority of teachers, deferred to their judgment, and trusted them to act in the best interest of school children, we now accept defiance, disrespect, and disorder as daily occurrences in many of our public schools.'" This too may not apply to universities. First, my sense is that broad public and elite opinion agrees that outright "disorder" is not as serious problem at universities as it is in K-12 schools. Second, my sense is that the same broad opinion takes the view that some amount of verbal defiance and even disrespect (outside the classroom) is healthy at universities, even if it's dangerous at K-12 schools. If Justice Thomas shares these views, and sees these pragmatic judgments as relevant, he may thus conclude that a different rule should apply for university students than or K-12 students. e. "To elevate [student] impertinence [uttering at a school event what is either '[g]ibberish' or an open call to use illegal drugs] to the status of constitutional protection would be farcical and would indeed be to 'surrender control of the American public school system to public school students.'" Again, this might not apply to universities, for much the same reasons as those I mentioned under 2.d. So the bottom line: If Justice Thomas continues to focus on original meaning in free speech cases, or if he relies on the theory that those who "seek[] education offered by the State" must accept the requirements imposed by the State, then it seems likely that he would say that the First Amendment doesn't bar public universities from imposing speech restrictions on their students. On the other hand, if Justice Thomas takes a more functional or pragmatic approach, focusing on the role of universities in public debate, and the role of public debate in universities, then he may take the view that university student speech is fully protected. (Of course, if I'm mistaken, and there is an 1800s and early 1900s tradition of protecting university student speech, either as a constitutional matter or at least as a matter of firmly embedded practice -- consider Justice Thomas's defense of anonymous speech in McIntyre v. Ohio Elections Commission, which was based on the tradition of anonymous political speech around the time of the Framing -- then Justice Thomas may also reach a pro-protection result on original meaning grounds, focusing on the meaning of free speech at the time the Fourteenth Amendment was enacted.) Related Posts (on one page):
Justice Thomas as Return of Justice Black?
I noted a while back that Justice Thomas in many ways resembles Justice Hugo Black, who served on the Court from the late 1930s to the early 1970s. Justice Black was mostly seen as a liberal Justice, and Thomas as a conservative, but both shared a distinctive style that sometimes made them mavericks: Both generally took the view that constitutional provisions should be interpreted the way they were understood when the provisions were written. Both preferred clear, bright-line rules to tests that required more judgment in their application. And both were much more willing than their colleagues to reconsider settled precedent. This is particularly clear in Justice Thomas's concurrence in the K-12 school speech case, Morse v. Frederick: He was the only Justice willing to reverse Tinker v. Des Moines Independent School District, the 1969 case in which the Court first expressly held that government-run K-12 schools generally may not restrict student speech. (The flag salute case, West Virginia Board of Education v. Barnette, held in 1943 that schools may not require students to salute the flag; but as of Tinker, it wasn't clear whether Barnette was limited to the unusual circumstance of compulsory affirmation of belief.) He rested most of his argument on what he argued was the original meaning of the First Amendment, as applied to the states through the Fourteenth. And he also stressed that the Tinker standard, coupled with the modifications added since then (including by the majority in Morse itself), was too subjective to be a workable and principled rule of law. And interestingly, in this case Justice Thomas's bottom line as well as his decisionmaking style matched Justice Black's: Justice Black was the one Justice in Tinker who would have held that government-run K-12 schools have a free hand in restricting student speech. New York Times on Speech Codes and "Indoctrinate U":
Today's NY Times has an article sort of commenting on Evan Coyne Maloney's documentary Indoctrinate U. Greg Lukianoff at FIRE has a nice analysis of some problems with the article here, explaining the facts of the Vassar situation that is the centerpiece of the article. What struck me about the article, however, was the utter confusion by the reporter (Joseph Berger) about the central point of the article--the distinction between controversial ideas on one hand and abusive or derogatory language on the other. Greg's post summarizes the Vassar situation as follows:
Berger's article characterizes the situation thusly:
Accept for the sake of argument that the treatment of the newspaper should turn on whether the problem here was the "offensive language" that could be subject to punishment ("ghettos" and "zoological preserve") rather than the controversial ideas that should not (the college should not encourage students to separate themselves by race). The distinction seems somewhat tenuous to me in the first place, but especially so here as the precise words in question were being used for a rhetorical point and not with an intention to insult or harrass fellow students. But let's set that aside and accept the premise that offensive languge can be punished (as opposed to offensive ideas) and that in fact the language used here was reasonably offensive. In fact, it does appear that there were some other egregious facts that were omitted from the Times article and for which the newspaper actually apologized, so I am not intending to defend the content of the publication here. If this distinction between language and ideas is the premise, however, then Berger's argument quickly descends into confusion. Consider the quote he uses that he believes illustrates the distinction:
Now it is quite clear from this quote that Mr. Monterrosa's objection is to the content of the article, not its language--according to Berger, Mr. Monterrossa said that the question of whether students should be clusterd "doesn not deserve a forum." It may be that Berger has some other quotes that would have actually illustrated his point that this was about the language, not the ideas. But that he chose this particular quote and believes that it illustrates his point suggests to me that he simply doesn't understand the distinction that he is trying to establish. The same confusion arises a few paragraphs later:
Again we see Berger's confusion. The objection to Imus was actually his use of derogatory language and which was used simply to insult and ridicule. But the "Bong Hits 4 Jesus" case was premised on the idea that the message was inappropriate for school, not that the language was offensive. Again, this whole discussion is predicated on taking as given Berger's distinction between abusive language on one hand and "offensive" ideas on the other. But if that is a disntinction that is supposed to have analytical force, it is important to understand what exactly it means. By the way I saw an earlier edition of the movie "Indoctrinate U" and found it informative, illuinating, and terrifically enjoyable. Berger's more general critique of the movie is completely silly. It is a good movie and Maloney lets the students and faculty involved in these incidents simply tell their story. Then he runs some amusing Michael Moore-style ambushes on hapless college administrators. I understand that the production company is trying to get it into wider circulation and I certainly recommend seeing it if it comes to your town. It is really well done and there is really some pretty outrageous stuff portrayed in the movie and some of the quotes from some of the participants are simply hilarious. You may recall that Evan did the powerful "Crystal Morning" film on the fifth anniversary of 9/11 that I mentioned last fall. Update: You will note that in the original post I observed that the Times article "sort of" comments on Indoctrinate U. The reason is because even though it starts off talking about the movie, the Vassar story isn't actually in the movie as Evan Coyne Maloney explains here. He also explains what is in the film and addresses the larger issue as to why the rest of us should be more concerned about free speech on campus than Berger is (a point that Greg Lukianoff emphasizes as well in his post). Update: Yee-ouch my original post omitted an extremely important "not" which I have corrected. The sentence now reads (as I originally intended it to): "In fact, it does appear that there were some other egregious facts that were omitted from the Times article and for which the newspaper actually apologized, so I am not intending to defend the content of the publication here." Sorry for any confusion. "Legitimate" and "Illegitimate" Government Motives in Wilkie v. Robbins and the Second Class Status of Constitutional Property Rights:
In Wilkie v. Robbins, Justice Souter's majority opinion denied the plaintiff a damage remedy for the government's attempts to harass him into giving up his property rights without compensation, despite the fact that the latter is an obvious violation of the Takings Clause of the Fifth Amendment. As Jonathan Adler points out, Souter has a hard time distinguishing this case from other instances of government retaliation for exercising a constitutional right where he believes that a Bivens damage remedy is acceptable. He claims that the key difference is the motive for the government's action:
Thus, seeking to acquire land is a "legitimate" government purpose, while punishing an individual for antigoverment speech is not. The problem is, however, that constitutional rights regulate not only the ends that government may pursue, but also the means that it can use to achieve them. In Wilkie, the government's desire to acquire an easement onto Mr. Robbins' property was not in and of itself unconstitutional. However, the effort to achieve this purpose by using coercion and harassment to force the owner to give up the easement without compensation was an unconstitutional means to an otherwise legitimate end. To take up Souter's First Amendment analogy, it is perfectly legitimate for government officials to try to stimulate public support for their policies. It is not legitimate, however, for them to use the suppression of opposing speech as a means to this end. If they punish antigovernment speakers for their speech, Justice Souter surely would not deny the victims a damage remedy simply because the government's ultimate purpose (increasing public support for its policies) was not in itself unconstitutional. Yet he fails to draw the obvious parallel conclusion in the property rights context. For that reason, his opinion realizes my fear that a victory for the government in this case would reinforce the second-class status of constitutional property rights. Souter further argues that the government's actions were just an instance of "hard bargaining" to achieve a legitimate end. Government agents repeatedly trespassed on the Robbins' property and harassed his customers (including, as Justice Ginsburg points on in her dissent, videotaping female customers in the act of relieving themselves). Justice Souter himself, while ignoring some critical facts, described the Bureau of Land Management's actions as a a massive six year long campaign against Robbins amounting to "death by a thousand cuts." If the BLM had engaged in the same kind of "hard bargaining" in order to get Robbins to stop criticizing BLM policy or to consent to an otherwise illegal search of his house, Justice Souter and his colleagues in the Wilkie majority would not think of denying him a damage remedy (at least not because the government's ultimate purposes were "legitimate"). Here too, the second class status of property rights rears its ugly head. Scalia and Thomas are exceptions to this generalization about the majority justices. They would abolish Bivens damage remedies almost entirely, whether the rights violated by the government are property rights or not. The Thomas-Scalia approach is, in my view, deeply flawed. However, it does have the virtue of treating property rights and other rights the same. All would be underprotected to more or less the same degree. If time permits, I hope to do a more thorough critique of the Thomas-Scalia position in a later post. Related Posts (on one page):
Calling the Target as An Investigative Tactic:
Imagine you're a police detective and you're investigating a suspect who has not yet been charged. Why not call the suspect at home (or on his cell phone), explain the allegations against him, and politely ask him to respond?
If the suspect is really smart, he'll refuse to speak. But as we know from the Miranda context, a lot of suspects won't be smart: I would guess that a lot of suspects would confess at least in part. The call won't trigger Miranda because the suspect obviously is not in custody; and it won't violate the Sixth Amendment because no charges have been filed. Plus it's cheap and easy, and its informality may make suspects more willing to talk. Why not try it? (I'm assuming the suspect already knows he is under investigation or else the police don't mind informing him of it.) Okay, now let's change hats. Imagine you're a legislator rather than a police detective. Would you support a law prohibiting law enforcement officers from calling suspects on the phone in an effort to get them to make incriminating statements? Immigration Bill Open Thread:
I haven't followed the immigration bill closely, although it's obviously a very important piece of legislation. I have a vague sense I support it: We Americans have an internally incoherent set of views towards illegal immigration, and given that occasional fixes like this are probably inevitable over the long haul.
But I'm guessing VC readers have a lot of strong views about this issue, and would be interested in voicing them. In light of that, here's an open thread on the immigration bill. Comment away. As always, please keep it civil. Following Cheney's Tracks through Environmental Policy:
The fourth and final installment of the Washington Post series on the Cheney Vice Presidency focuses on the role of the Vice President’s office in the formulation and implementation of environmental policy. As portrayed by the Post, Cheney repeatedly intervened directly in specific environmental policy matters, such as the Klamath River Basin controversy, Yucca Mountain, and snowmobiling in Yellowstone National Park, but typically “left no tracks” of his involvement.
He is also blamed for inducing then-EPA Administrator Christie Todd Whitman to resign. ["Blamed"? Isn't this something for which he should get credit?] This article may not have as much for ConLaw junkies as the series prior installments, but for those who want to see the insides of our outdoors policies, it is a must read. Related Posts (on one page):
Bugliosi on the Kennedy Assasination:
I have admired Vincent Bugliosi ever since reading Helter Skelter: The True Story of the Manson Murders, describing his prosecution of Charles Manson. Although other some prosecutors carped at the time that he took credit for the accomplishments of others, claims which I have no way of assessing, I thought the book admirably described a model of how a prosecutor ought to prepare for a case. I highly recommend it to law students interested in practicing criminal law. Plus, it's a great read.
I am also a big fan of Bugliosi's book Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder, describing the catastrophic failure of the prosecutors in the O.J. Simpson case to competently do their job. It fit perfectly with my reaction to watching on TV their pathetic attempts at presenting evidence and argument, but provided much unreported background information on just how bad they were. No one should blame the jury about the outcome of that case without first reading this book. [Aside: on Sunday night I saw Norm McDonald at the Improv. MacDonald is memorable for his line as anchor for Saturday Night Live's Weekend Update. With a picture of a smiling OJ over his shoulder, McDonald announced: "Well, it's official: Murder is now legal in the State of California."] Now Bugliosi has a massive new book debunking conspiracy theories about the Kennedy assassination. I am not sure when I will have the chance to read it, but found this interview with him discussing the assassination to be most interestimng. Wilkie and the "War on the West":
Any backlash against the Supreme Court's Wilkie v. Robbins decision is likely to come from the West. Robbins' claims resonate in the West in a way it may be difficult for landowners in other parts of the country to appreciate. In many western states government ownership of land is the norm, and private property interests are inexorably intertwined with the interests and authorities of various federal agencies. Approximately one-half of the land west of the Mississippi is owned by the federal government, and in some states the proportion of federal ownership exceeds 80 percent. To complicate matters, in many areas federal ownership forms a patchwork across the landscape, intermingling with private and state land. For this reason, ranchers like Robbins cannot operate without coming into constant contact with federal officials. This de facto dependence on federal lands is difficult for non-westerners to appreciate, and makes western landowners in the West particularly vulnerable to the sort of bureaucratic malfeasance alleged in this case. Western landowners are also more likely to view Uncle Sam as an undesirable neighbor (apart from any federal subsidies they may receive). In the private sphere, adjoining landowners often accept minor indignities and trespasses without conflict, much as passersby rarely come to blows after brushing by one another on a busy street. Private landowners have a strong incentive to get along with their neighbors, as the benefit when other landowners reciprocate. Relations with the federal government are not quite the same, however. If federal officials decide to adopt a “zero-tolerance” approach, they can make life very difficult for an individual landowner at little cost to themselves. Given the need for rights of way, easements, and access to federal lands, there is ample opportunity for bureaucratic mischief through arbitrary actions. If an agency cancels permits or takes other actions without sufficient justification, he may be able to win his rights back through an administrative appeal, but there is no real remedy against a campaign of harassment and intimidation of the sort Robbins alleged. Perhaps unintentionally, one effect of the Wilkie opinion may be to increase tensions and hostility between private landowners and federal agencies in the West. Federal officials now know they have less to fear from litigious landowners and may feel emboldened to act more aggressively in pursuing federal interests. Private landowners may also learn that any time they fail to press any legal claim against the government, they are undermining their ability to obtain relief. As the majority notes: It is one thing to be threatened with the loss of grazing rights, or to be prosecuted, or to have one’s lodge broken into, but something else to be subjected to this in combination over a period of six years, by a series of public officials bent on making life difficult. Agency appeals, lawsuits, and criminal defense take money, and endless battling depletes the spirit along with the purse. The whole here is greater than the sum of its parts.Yet relief is now only available for the individuals parts, rather than the whole. Robbins waited to sue until it was clear he faced a “death by a thousand cuts,” at which point he sought relief for the entire harassment campaign. With this avenue closed, the only option for Robbins and other landowners in his position is to litigate and appeal each and every federal action, no matter how piddling or small, that is potentially adverse to the landowner’s interests. Indeed, the potential for administrative relief for some of the actions about which Robbins complained was one of bases for the majority’s holding. Now that the Court has completely a landowner’s ability to seek relief for a series of deliberate actions, there could be an escalation of legal conflict between landowners and government agencies, and it is hard to see how this would be in anyone’s interest. In his majority opinion, Justice Souter details all the instances in which Robbins could have filed administrative actions, appeals, or other claims, but failed to do so. I doubt Robbins, or similarly situated landowners, will be likely to exercise such forbearance in the future. They will lawyer up instead, lest they suffer Robbins' fate. Given the majority’s professed concern that allowing Robbins’ claim would unleash a waive of similar federal lawsuits, this is quite an ironic twist. Related Posts (on one page):
Barring Bivens Actions for Property Owners:
What makes Wilkie v. Robbins a difficult case is that Robbins is seeking the extension of a judicially created cause of action to cover his circumstances, when a legislatively authorized remedy would be preferable. As the majority framed the central issue: The first question is whether to devise a new Bivens damages action for retaliating against the exercise of ownership rights, in addition to the discrete administrative and judicial remedies available to a landowner like Robbins in dealing with the Government’s employees.For those who view Bivens and its progeny as Warren Court judicial activism, this is a tough pill to swallow. However much they may wish to protect private property owners from federal bureaucrats, they have no interest in broadening the range of Bivens actions available in federal court. This is the explicit basis for Justice Thomas’ dissent. Joined by Justice Scalia, Thomas denigrated Bivens as “a relic of the heady days in which this Court assumed common-law powers to create causes of action,” and argued that Bivens and its progeny should be limited ‘to the precise circumstances that they involved.’” If one accepts Justice Thomas’ premise that Bivens was wrong and should be limited, then it is obvious that Robbins’ claim should fail. Yet Justice Souter’s majority opinion is not willing to go this far. Instead, it seeks to maintain the more difficult position that Bivens actions are fully legitimate, but that the Robbins’ specific claims are not the sort for which a Bivens-like action should be available. Bivens actions are disfavored, Justice Souter suggests, and there are many reasons, such as the potential availability of other avenues of relief, that can counsel against allowing such actions to proceed. The point here is not to deny that Government employees sometimes overreach, for of course they do, and they may have done so here if all the allegations are true. The point is the reasonable fear that a general Bivens cure would be worse than the disease.Set alongside Justice Ginsburg’s dissent, I do not find Justice Souter’s arguments all that convincing. The claim that a deliberate campaign of harassment intended to extort a constitutionally protected property interest is not distinguishable from a government official’s “legitimate zeal on the public’s behalf in situations where hard bargaining is to be expected” rings hollow. Under what circumstances would legitimate “hard bargaining” by a federal employee include the repeated commission of illegal and tortuous acts, and harassment that extended to efforts to videotape a landowner’s guests “even while the guests sought privacy to relieve themselves.” I am very sympathetic to the need for line-drawing, lest the approval of a Bivens action produce a rash of meddlesome litigation, but the facts alleged in this case are far from any reasonable line demarcating what actions should be redressable. Justice Souter’s majority opinion eases the way to this result with a muted account of the facts that led to Robbins’ suit. In an early footnote Souter says the Court details the facts “in the light most favorable to Robbins” because the case arose on an interlocutory appeal from the denial of the federal employees’ motion for summary judgment. Yet as the recitation of the facts in Justice Ginsburg’s dissent makes clear, the Souter majority soft-pedals key aspects of the BLM officials’ conduct, and ignores others. This serves the rhetorical purpose of downplaying the injustice suffered by Robbins, easing the way for the Court’s denial of an avenue for relief, but it also misrepresents the facts for purposes of the appeal. If an individual should be able to seek money damages against government officials that violate his Fourth Amendment rights, it seems hard to maintain that there is no cause of action for the extended, deliberate campaign of intimidation and harassment of a property owner who has done nothing more than assert his constitutionally protected property rights. Robbins had remedies for some of the actions taken by the BLM, but not all. Moreover, many of the actions, by themselves, would not be worth the cost to challenge. It is only when the BLM officials’ actions are taken together that they become something worth fighting over. But under Wilkie, that is precisely what landowners in Robbins’ position cannot do. Related Posts (on one page):
Griles Goes to Jail:
Former Deputy Interior Secretary J. Steven Griles will go to jail for lying to Congress, a judge concluded yesterday. Griles
UPDATE: Those commenters who noted there was no reason to use the word "allegedly" above are correct. Griles pled guilty and was convicted. Since the beginnings of the Bush Administration, the Interior Department has been divided between those who sought to pursue principled conservative environmental policies, and those who pandered to industry interests and well-connected lobbyists. There is little question that Griles fit squarely into the latter camp. Farber on the Ninth Amendment:
Professor Dan Farber of Boalt Hall has a new book on the Ninth Amendment called Retained By the People: The "Silent" Ninth Amendment and the Constitutional Rights Americans Don't Know They Have. I haven't read it yet, though I gather he disagrees to some degree of my take on the Ninth Amendment. Here is a video of him discussing the Ninth Amendment at Cody Books in San Francisco.
Update: Over on Positive Liberty, the always insightful Tim Sandefur has a highly critical comment on Farber's take on the Ninth Amendment. Yes, I did see the one page in Farber's book where he discusses my work and I share Tim's concerns. Considering he chose to write a whole book on the Ninth Amendment, Farber devotes far too little space to the important issues he raises on this single page. Read the whole thing but here is a taste: How many other things are wrong with this paragraph? Well, first of all, the text of the Ninth Amendment does not refer to “discrete packages” of rights. It refers to “others retained by the people.” The term “others” is undifferentiated! It echoes the Declaration’s reference to “among these [rights]”—that is, this text exists specifically to point out the fact that the act of differentiating some rights and setting them aside as discrete packages must not be construed to deny the existence of an undifferentiated (and insusceptible of differentiation) mass of other rights that together make up the concept of liberty. The Ninth Amendment would be self contradictory if it were interpreted in a way that required that all the rights to which it refers be “discrete packages.” Monday's Big Environmental Decision -- NAHB v. Defenders of Wildlife:
The Supreme Court released another major environmental decision Monday, National Association of Home Builders v. Defenders of Wildlife (NAHB). As in Massachusetts v. EPA, environmentalist groups sought to expand the scope of a major environmental law, over the opposition of the Environmental Protection Agency. Also like Mass v. EPA, the Court split 5-4. Unlike Mass. v. EPA, however, the EPA and industry groups won while the environmentalist groups lost. NAHB centered on whether the Endangered Species Act requirement that federal agencies consult with the Fish & Wildlife Service (or National Marine Fisheries Service) to insure that agency actions not threaten endangered and threatened species applies to non-discretionary agency actions. At issue was the EPA’s decision to approve the transfer of Clean Water Act (CWA) permitting authority to the state of Arizona. The CWA provides that the EPA “shall” transfer such permitting authority unless the EPA concludes that the state in question fails to meet one of nine specific criteria listed in the Act. Defenders of Wildlife and other environmentalist groups argued that the EPA was also required to consider whether the transfer of permitting authority could jeopardize endangered or threatened species under ESA Section 7(a)(2). As characterized by the Court, Defenders argued, and the Ninth Circuit held below, that Section 7(a)(2) “effectively operates as a tenth criterion on which the transfer of permitting power under the first statute must be conditioned.” Interestingly enough, the relevant federal agencies |