So the South Carolina Democratic party has concluded that Stephen Colbert may not appear on the Democratic primary ballot. It did not think his candidacy was a laughing matter, and it thought this precisely because the Colbert candidacy was a laughing matter. Colbert could not be serious, hence not a serious candidate; and yet his candidacy was only viable—it really only made sense—if it was not taken seriously. And yet it was serious enough, this candidacy, that the federal campaign finance laws (and the Federal Communications laws) applied with full force and quite seriously.
For those who, like me, take an inordinate interest in all things Italian (I spent a semester in Bologna during the run-up to last year's Presidential election, and hope to spend a good deal more time in that extraordinary country in years to come), a couple of recent books have caused a sensation in Italian political circles and may herald a real sea-change in the political culture there. One, La Casta: Così i Politici Italiani Sono Diventati Intoccabili (The Caste: How Italian Politicians Have Become Untouchable)
by two journalists from Milan's Corriere della Serra, Sergio Rizzo and Gian Antonio Stella, is the subject of a very interesting review in this month's issue of Foreign Policy.
According to Rizzo and Stella, Italian political life has been hijacked by what they have termed “the Caste,” a political class of thousands of lawmakers who have devised rules that enrich themselves at public expense with little fear of oversight, accountability, or, in some cases, prosecution. The Caste, they claim, extends all the way to the president of the republic. But the breadth of the Caste is far greater than any one person or office. Rizzo and Stella report that members of Parliament continue to belong to the Caste even after they have resigned from office; that at least 16 of them have criminal records; and that Italy’s presidential palace costs more than four times as much to operate as Buckingham Palace. The Caste is full of such charges, which the authors unearthed from hundreds of pages of official, unclassified documents. It is a stunning indictment of the privileges, costs, abuses, and waste in Italian politics.
(There's also a useful interview with Rizzo and Stella posted here)
And today's New York Times has a profile of Roberto Saviano, author of "Gomorrah," an enormously powerful indictment of the continuing strength and influence of the Neapolitan mafia (known as the Camorra").
What is perhaps most interesting about these two books is how phenomenally popular they've become in Italy; each has sold almost 1 million copies, a stunning figure in a country of 50 or so million people, even one with as well-developed a literary culture as Italy has. It's an enormously hopeful sign. The corruption in Italian politics, and Italian life, runs very deep, and saps an enormous amount of energy and enterprise out of Italian public life; it is a problem, or a series of inter-related problems, that obviously can only be solved by the Italians themselves, and the attention that has been drawn to these two books is probably the most hopeful sign in recent years that the political will to challenge decades and decades of entrenched power might finally be emerging. Worth watching, and hoping.
Fred Thompson vs. The UN's anti-self-defense campaign
Earlier this week, Sen. Fred Thompson wrote to Field & Stream magazine, criticizing the UN's campaign against the human right of self-defense. The Thompson campaign touted the letter on its website, and the letter got a favorable reception among many pro-Second Amendment bloggers.
The Thompson letter, including its quotation of the great Dutch philosopher of international law, Hugo Grotius, appears to have used as a source the Kopel/Gallant/Eisen article "The Human Right of Self-Defense," which is forthcoming in volume 22 of the BYU Journal of Public Law. (We're in the middle of the cite-check right now, so the draft on my website is not the final version. And kudos to the BYU staff for its hard work on a monstrous cite-check with hundreds of sources, many of them not in the collection of an ordinary law library.)
Sen. Thompson's letter prompted criticism from Kevin Drum of the Washington Monthly and Stephen Benen, both of whom relied on a refutation written by UN Dispatch, a weblog funded by the UN Foundation.
Today, the Knoxville News reports that it was UN Dispatch that got the facts wrong. The Special Rapporteur's Report which Thompson criticized (and which was adopted and endorsed by a submcommission of the UN Human Rights Council) quite explicitly says that personal self-defense is not a human right.
It's been a long time since a major presidential candidate quoted Grotius, and my view is the more Grotius in America's public debates, the better. I hope Pufendorf starts to get some attention too.
It's rather telling that the UN's American defenders fail to directly address an indisputable fact: U.N. Human Rights Council's subcommission on the Promotion and Protection of Human Rights has endorsed a report denying the existence of a human right of self-defense, and the subcommission, pursuant to the report, has declared that all national governments are required by international human rights law to implement various gun control provisions--provisions which, by the UN's standards, make even the gun control laws of New York City and Washington, DC, into violations of international law because they are insufficiently stringent. (See page 14 of the draft BYU article.)
President Bush vetoed the pork-laden $23.2 billion water project bill yesterday. The bill was the product of compromise between the House and Senate. According to the WSJ, the House passed a $14 billion bill, and the Senate passed a $15 billion bill. Each house sought to preserve its own earmarks, so at conference they compromised, producing a $23.2 billion bill.
Acting assistant attorney general Dan Levin apparently asked to be waterboarded when evaluating its legality, according to ABC News.
After the experience, Levin told White House officials that even though he knew he wouldn't die, he found the experience terrifying and thought that it clearly simulated drowning.
Levin, who refused to comment for this story, concluded waterboarding could be illegal torture unless performed in a highly limited way and with close supervision. And, sources told ABC News, he believed the Bush Administration had failed to offer clear guidelines for its use.
UPDATE: Marty Lederman has more thoughts on this story here.
The Transportation Security Administration promotes its programs to ensure security by using undercover operatives to test its airport screeners. In one instance, however, the agency thwarted such a test by alerting screeners across the country that it was under way, even providing descriptions of the undercover agents.
The government routinely runs covert tests at airports to ensure that security measures are sufficient to stop a terrorist from bringing something dangerous onto an airplane. Alerting screeners to an undercover officer's timing and appearance would defeat the purpose.
But that's exactly what happened on April 28, 2006, according to an e-mail from a top TSA official who oversees security operations.
I wasn't following the comments on my "In Defense of Usury" post, since it was primarily just an excerpt from Karlan and Zinman's argument. I confess that I was surprised to see that there were so many comments and so much controversy about the study described in the Wall Street Journal column. Also, I apologize for the fact that I didn't realize that we had a spam filter that would interfere with comment postings (which apparently blocks out words like "loans"--looks what happens when I hang around with a bunch of constitutional law bloggers).
Several of the commenters raised the challenge that nothwithstanding the authors' conclusions, very high interest rates are still "immoral" and should be banned. But I don't really follow the logic of the critique--if there are no externalities, and those that borrow are better off as a result, what exactly is the argument for why high interest rate loans are immoral and should be prohibited?
The whole point of the column is that under a consquentialist theory, this is socially beneficial. It also certainly seems consistent with autonomy theory. And if the borrowers are generally better off overall from this and appear to understand what they are doing, I don't understand why it would be a problem under a paternalistic theory.
I've heard this argument pronounced previously--that certain interest rates are simply "too high" and shouldn't be tolerated. I'd genuinaly like to understand--what exactly is it that supposedly makes this transaction "immoral" such that it shouldn't be allowed? What is the theory?
Moreover, as the authors suggest, those who don't get this credit often will turn to even worse forms of credit, such as pawnshops or even illegal lenders. Or as one of the commenters notes, bounce a check, which may amount to as much as $50 in penalty fees. Paige Skiba's research suggests that those who use pawnshops often are those who wanted a payday loan and were turned down for it. So eliminating payday loans will force them to use pawnbrokers. And research by Gregory Elliehausen and others suggests that those who use payday loans are often those who can't get access to a credit card or are maxxed out on the credit cards they have. And Donald Morgan has found that increased competition in the payday lending industry leads to lower prices on payday loans.
Moreover, interest rates are just one of many price terms in a credit contract. Thousands of years of economic history has demonstrated one central point--if you regulate interest rates, then lenders will try to clear the market by repricing other terms of the contract, such as requiring larger downpayments, higher fixed underwriting fees, more onerous default criteria, etc. Retail stores, by contrast, simply bury credit prices in the cost of the goods they sell then increase the costs of the goods.
So usury regulations have three predictable consequences: (1) a cap on interest rates or regulation of other terms leads to a repricing of other terms of the credit contract to try to adjust, (2) Substitution to other, less-preferred credit products such as pawnshops and loan sharks, and (3) if none of that works to clear the market, credit rationing results. I discuss this extensively in my article "The Economics of Credit Cards."
For what it is worth, Karlan and Zinman have written a number of articles applying behavioral economics to consumer credit--that's the whole hook for the article. Notwithstanding the fact that people make errors, they are still better off by having access to regulated high-priced credit. At least some of those who are unable to get access to this regulated credit will end up borrowing in the black market from illegal lenders--at much higher cost (and perhaps not just financial).
Karlan and Zinman suggest, therefore, that we should avoid policies that end up forcing consumers to deal with illegal lenders. Instead we should focus on policies that will improve the working of the legal lending market, such as improving on the current disclosure regulation scheme (as suggested by the FTC's mortgage study published this summer). That certainly seems like a more sensible approach to me.
Once all of these unintended consequences are taken into account, and assuming that consumers are sufficiently well-informed that we can draw the sort of welfare conclusions Karlan and Zinman draw, it isn't evidence to me what the theory is that justifies prohibiting these sorts of high-cost loans.
Whether or not the Bush Administration is making bad arguments in defense of Judge Mukasey's nomination, it now looks likely he will be confirmed as the next U.S. Attorney General. The Washington Post is reporting that Senators Charles Schumer and Dianne Feinstein will vote in favor of his confirmation.
Jack Goldsmith's book is quite possibly the first sober account of the pressures that a post-9/11 president faces in the attempt to respond under the rule of law to the security threats facing this country. The book is largely a memoir of Goldsmith's service as an assistant attorney general for the Office of Legal Counsel (OLC), and of his terrible predicament as he found himself in the midst of an extraordinary debate among administration officials about how best to respond to the threat of terrorism. While OLC operates in relative obscurity for most Americans, it is in fact a genuinely significant institution of American government: all thorny legal questions within the executive branch are supposed to be submitted to this tiny elite office. OLC is the "decider" of these questions, and its judgments bind the entire executive branch.
In the fulfillment of his duties at OLC, Goldsmith said no to the White House on various matters, including torture and electronic surveillance. As a result, he soon left his Justice Department position and decamped to Harvard Law School. Now he has written this remarkable book--a book that anyone concerned about civil liberties in the war on terror must read. Goldsmith is not a civil libertarian. And this is not a kiss-and-tell book. It is a serious book with a serious lesson: that the war on terror is here to stay and will continue to pose extraordinary challenges to our current legal framework. Those inclined to think that the next administration will instantly shut down mass detention centers such as Guantanamo, or promptly terminate massive electronic surveillance under the Patriot Act, are likely to be sorely disappointed, no matter who sits in the Oval Office.
I agree with Katyal that The Terror Presidency is a must read, as much for those (like myself) who are inclined toward a more "conservative" view of international law and expansive view of executive power as anyone else. Combining first-hand accounts with thoughtful analysis and explanation of the relevant legal context, Goldsmith provides a quick tour of the central legal issues confronting post-9/11 counter-terrorism efforts. He also provides ample reason for those who have supported the administration on such issues to reconsider their position.
Among the many interesting points in Katyal's review is his cautionary discussion of the relevance of contemporary academic theories to the real world of governing and policy.
Reading Goldsmith's account of his experience of an academic theory applied to public policy in a time of crisis, one comes away with some rueful thoughts about the larger question of the relationship between the legal academy and the practice of law. The various events depicted in Goldsmith's book were set in motion by a wild notion dreamed up in America's law schools. Yoo's unitary-executive-on-steroids idea was not the first crazy theory to emerge from the legal academy; but it is likely the first to have achieved a secret stranglehold on the levers of government.
Law professors at elite universities today are predominantly theoreticians, paid to come up with large and original ideas. In the real world, if you came up with an idea like the John Yoo version of the unitary executive theory, you would get laughed out of town, because such a theory does not comply with the traditions and the values of this country. But in the legal academy, you get tenure. This trend in the modern law school, where practice has been subordinated to theory, has several consequences, but the most important one is that law professors can get sold on a theory with little understanding of how its implementation would work and what it would actually mean. There is little or no field-testing of these theories: legal scholars are rewarded mainly for cleverness and originality. The phenomenon is exacerbated by the fact that many top law schools are increasingly hiring faculty with no significant experience in legal or government practice.
Given the ideological leanings of most legal academics, I suspect this could be as great a problem, if not greater, in a prospective Democratic administration. It is a problem nonetheless.
I am not convinced by every point in Katyal's essay. For instance, I am not sure about his proposal to reform OLC. Still, those interested in these issues should read the review and, if they have not already done so, read Goldsmith's book.
I'm pleased to say that we're among the ten finalists in the Best Law Blog category for the 2007 Weblog Awards; the awards are currently being voted on.
In response to Ann's second post, I think I disagree with her about the originalist point. There is no inconsistency between being an originalist as a normative matter but a legal realist when asked to explain how the Court actually works. It seems to me that an originalist could look at Crawford and say that the right should have been recognized but wasn't, and that for various reasons habeas relief should be premised on compliance with the law as it was recognized at the time rather than the law as it should have been understood to be. That seems to be Scalia's position. I also think the criticism falls a bit flat with Justice Scalia in particular, as he is a partial, once-in-a-while originalist rather than a consistent defender of the method. On the other hand, I agree with Ann about the federalism point.
Oh, Please:President Bush is now complaining that Attorney General nominee Michael Mukasey is being treated 'unfairly' because some Senate Democrats are opposing his nomination based on his failure to state a position about the lawfulness of waterboarding:
The White House began a campaign Thursday to save the candidacy of Michael B. Mukasey for attorney general, with President Bush defending him in a speech and in an Oval Office interview, where he complained that Mr. Mukasey was "not being treated fairly" on Capitol Hill. With Mr. Mukasey’s confirmation in doubt over his refusal to state a clear legal position on a classified Central Intelligence Agency program to interrogate terrorism suspects, Mr. Bush took the unusual step of summoning a small group of reporters into the Oval Office to preview remarks he planned to make later in the day at the Heritage Foundation, a conservative research organization here. "I believe that the questions he’s been asked are unfair," Mr. Bush said. "He’s not been read into the program — he has been asked to give opinions of a program or techniques of a program on which he's not been briefed. I will make the case — and I strongly believe this is true — that Judge Mukasey is not being treated fairly."
I find this response absurd. To be clear, I support Michael Mukasey for Attorney General; I think he is an excellent candidate. And as I have mentioned before, I haven't studied the legal issues surrounding waterboarding closely enough to have an educated opinion about them.
But last I checked, the Constitution creates three branches of government, each with the ability to check the powers of the others. And given the six year history of the relationship between the Bush Administration and Congress since 9/11, objecting to Mukasey on these grounds strikes me as not only absolutely fair but even healthy for the Constitution.
Consider the context. The Bush Administration asserts that Congress has only limited powers to control the Executive through the traditional tools of legislation. As its many signing statements indicate, the Administration takes the view that it won't follow some kinds of laws that Congress passes but that Congress isn't allowed to know which laws it will or won't follow.
This is what happened with the laws on torture. When Congress passed a law banning torture in late 2005, the President's signing statement announced vaguely that the Executive branch that must apply the law in secret would do so "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power." So what does that mean? The Executive Branch won't say.
If you're in the Senate and you actually want to have a role in "making the law" or even just want to know how it's being interpreted — kind of a traditional view, I would think — that leaves you with limited options. One option would be to take the appropriations route and try to cut off any funding for waterboarding or similar practices. But the same President who issued the signing statement presumably would veto that. So unless you have a veto-proof 2/3 majority, that isn't likely to work.
Your only other option is to fall back the one check that the President can't veto or interpret out of existence: Article II, Section 2's "Advice and Consent of the Senate" condition on senior Presidential appointments. If the Executive says its officers will interpret your laws only "in a manner consistent with . . . the unitary executive branch and [the] Commander in Chief" power, but won't actually tell you what that means, your one and maybe only straightforward tool for finding out what that means is refusing to confirm Presidential nominees who won't take a stand and tell you what position they will take. It's a modest tool, because there are always recess appointments. But at least it's something.
I think it's unfortunate that Mukasey's confirmation could be blocked by this. He's not the problem, and I think he will be a very good Attorney General if confirmed. But checks and balances are a good thing, not a bad one, and the Framers designed the Constitution that way for a reason. Given that, the idea that it is somehow "unfair" for the Senate to exercise this one modest tool Bush has left the Senate to have a role in interrogation policy strikes me as absurd.
UPDATE: Some commenters seem to have misinterpreted my post, so let me clarify. First, President Bush has every right to nominate who he wants as Attorney General. Second, President Bush has every right to make absurd arguments in support of his nominee to try to pressure Senate Democrats to confirm his nominee. My point is not about "rights," but about whether the President's argument is weak or strong. I think the argument is very weak, and that point has nothing to do with the "rights" of the President.
I'm pleased to say that we seem to be teaming up in a pretty systematic way. The kickoff event for the partnership is today's conference on secrecy and transparency in the civil justice system; California Supreme Court Chief Justice Ron George and 9/11 compensation fund Special Master Ken Feinberg will be speaking, among others. Cool.
U.S. Magistrate Judge Wayne Brazil issued a temporary injunction against the CSU system Wednesday, in which he struck down a portion of the CSU conduct code that mandates students "be civil to one another." That language would likely not survive First Amendment scrutiny at trial, the magistrate found.
"It's fine to say, 'We hope you're civil to each other,'" Brazil said from the bench. "It's not fine to say, 'We'll punish you if you're not.'"
The magistrate also told the CSU system it can only discipline students for "intimidation" or "harassment" when the health or safety of another person is threatened. In addition, Brazil struck down language in the San Francisco State University student handbook that holds out the possibility of corrective action against student groups if their members behave in opposition to SFSU goals and principles.
The case grows out of an anti-terrorism rally held last year by College Republicans at SFSU. The event turned testy when the Republicans stomped on Hamas and Hezbollah flags bearing "Allah" written in Arabic script. Onlookers from the school's Muslim community objected, and one started to climb on stage to remove the flag, according to the university's court filings. The two sides engaged in heated debate.
After the protest, the school received a complaint alleging the Republicans had violated the student code by attempting to "incite violence" and create a hostile environment, the school says in its court filings. After an investigation, the complaint against the Republicans was dismissed....
In considering Thomas Miles and Cass Sunstein's effort to measure "judicial activism" and the criticism it has generated, I am increasing persuaded that it is impossible to define "judicial activism" in a way that is both 1) useful, and 2) not simply a synonym for incorrect decisions. My tentative sense is that any ideologically or politically neutral definition of "activism" is unlikely to be useful in shedding light on the normative debate over what judicial review should be used for. On the other hand, normatively useful definitions of "activism" will tend to coincide with the analyst's definition of "incorrect decision."
It is certainly possible to define judicial activism in a neutral way. For example, Miles and Sunstein define "activism" in the context of judicial review of regulatory agency decisions as any judicial decision to overrule an agency. Similarly, one can define "activism" in the constitutional law field as any judicial decision to invalidate a statute enacted by a legislature. Such definitions of activism are objective, but not very helpful. Most critics of what they call "judicial activism" don't claim that any judicial decision that invalidates an action by the other branches of government is activist. Instead, they condemn such decisions only if they think they exceed the courts' legitimate authority or misinterpret the relevant law. Thus, knowing that Judge X votes to strike down statutes or overrule agencies more often than Judge Y tells us very little that is useful in determining who is more "activist" in any sense relevant to normative debates about judicial power.
Moreover, both liberal and conservative critics of "activism" often denounce as activist not only decisions that strike down laws, but also those that fail to do so. For a recent liberal example, see here; a recent conservative example is the denunciation of Kelo by some on the right as "judicial activism" (I personally agree that Kelo was wrongly decided, but not because it was "activist").
Of course, we could instead define "judicial activism" not as overruling other branches of government but as doing so without adequate justification. For example, originalists might argue that judges are "activist" when they strike down laws that are not forbidden by the original meaning of the Constitution. In that case, however, the real intellectual work is being done not by the concept of "activism" but by whatever interpretive theory is used to determine whether a given law violates the Constitution or not. For the originalist, the key analytical concept is original meaning or intent; "activism" becomes just another label to attach to decisions that aren't justified on originalist grounds. I don't object if people want to use the word "activist" in this way. But I also don't see how it adds anything to the argument.
There is one group of critics who can use the concept of "judicial activism" in a coherent and analytically useful way. A few scholars - including Robert Dahl and Mark Tushnet on the left, and Lino Graglia on the right - want to abolish judicial review altogether, regardless of the interpretive methodology the judges use. For writers in this camp, it indeed makes sense to define all judicial overruling of the political branches' actions as "activist" and to denounce any such decisions. For the rest of us, however, debates over "activism" are likely to add little of value to the deeper underlying debate over when courts are justified in using their power to strike down the actions of other branches of government.
A thought about Cryptonomicon I had from reading the comments on the Yamamoto thread, and that was confirmed by the poll results: It's hard to argue with those who love it, or those who hate it. But lots of people — at last count, 158, including me, out of the 459 that voted — say that it's one of their favorite novels (and that doesn't count the ones who said that it's merely excellent but not one of their favorites). My guess is that there are few novels that arouse such enthusiasm, even if many novels arouse less hostility.
So if you spend $9 plus sales tax in a bookstore, or $5-$6 or so (including shipping) from an amazon used book seller, plus 30 minutes or however long it takes for you to get a sense of whether you like the book, you have a decent chance of getting a novel that will become one of your favorites. Since I get tremendous pleasure from novels I really love, don't much care about the $5-$6, and am often willing to risk the 30 minutes, that sounds like a good gamble to me.
More broadly, many choices are not just about how likely you are to like something, but how much of a benefit you're likely to get out of it if you like it, and how much of a cost it will be if you dislike it. With some forms of entertainment, the downside is unlikely, but the upside is pretty low. With others, including certain kinds of books (or for that matter with trying a new restaurant), the downside may be more probable but not very expensive, and the upside can be great. If so, it's worth a try.
Thomas Miles and Cass Sunstein have now responded to critics of their study of judicial "activism" and ideological bias in Supreme Court review of administrative agency decisions. To briefly recap the Miles-Sunstein methodology, they code as "activist" justices' votes to overrule agency decisions instead of defer to them, and they characterize the justices as ideologically "partisan" if they are more likely to vote to strike down "conservative" agency decisions than "liberal" ones or vice versa.
In an earlier post, which Miles and Sunstein kindly cite in their reply, I criticized their approach on three grounds: that it fails to control for the underlying distribution of agency decisions (ignoring the possibility that an agency may make more flawed "conservative" decisions than liberal ones, or vice versa); that it ignored the fact that some justices may have centrist ideologies that skew their decisions just as much liberalism or conservative ones; and that their praise of Justice Breyer as the most "restrained" and "humble" justice may be misplaced in so far as he may actually have ideological reasons for maximizing the autonomy of agency bureaucrats.
Miles and Sunstein respond to the first of these points as follows:
If the distribution of agency decisions were skewed in a liberal direction, as some critics allege, we should have observed few or even no challenges from public interest groups. Instead, we observed a fair number of such challenges. Moreover, our study period included many decisions from both the Clinton and the Bush administration, and it would be a big surprise if decisions by the latter were mostly “liberal.”
I don't think that if agency decisions were skewed in a liberal direction, it necessarily follows that there would be "few or no challenges from [liberal] public interest groups." The agency could skew in a liberal direction, but the public interest groups might want it to be skewed that way even more. Moreover, an agency skewed in a liberal direction may be more likely to be influenced by challenges from liberal groups to change its policies than one that is conservative. After all, a liberal agency is more likely to sympathize with the agenda of outside liberal critics. Thus, far from preventing challenges to its actions by liberal groups, a liberal-biased agency might actually attract them.
Moreover, the issue in question is not so much whether an agency makes "mostly liberal" decisions as whether it is more likely to err in its interpretation of the law in a liberal direction than a conservative one. If it does, than justices who are more likely to overrule liberal decisions than conservative ones may not be acting in a "partisan" manner, as Miles and Sunstein contend. For example, it's theoretically possible that an agency makes 80% "conservative" decisions, but that half of the 20% that are "liberal" are misinterpretations of the law, while none of the conservative ones are. In such a scenario, the agency makes many more conservative than liberal decisions, but the direction of its errors would still be skewed in a liberal direction. Contrariwise, we might get the opposite result if an agency is more likely to make conservative errors tahn liberal ones.
I am also not convinced that including the Bush administration necessarily protects against the possibility that erroneous agency decisions will skew in a liberal direction. The Bush Administration is a "big government conservative" group that has not paid much attention to regulatory reform, and that has strongly supported massive increases in domestic spending. It would not be surprising if in many agencies, a lot of decisions were left to the permanent bureaucracy (which is often liberal) and if many of those decisions would tend to skew liberal. Such a skew might even be acceptable to those Bush political appointees who approve of the massive growth of government that the Administration has presided over and (for the most part) supported. Probably, any such skew would be smaller than in a Democratic administration, but it may not be nonexistent.
I should emphasize that there are also theories that suggest that agency decisions are systematically skewed in a conservative direction rather than a liberal one. The Miles-Sunstein framework fails to address those theories either.
Lastly, I should note another problem with the Miles-Sunstein categorization scheme. As they note in their response to critics, "[a]gency decisions challenged by industry were deemed liberal, and those challenged by public interest groups were coded conservative." Since Adam Smith, free market advocates have recognized that business interests often favor government regulation when it suits their self-interested purposes. For example, businesses often favor regulations that hobble their competitors. Thus, the fact that an agency decision was challenged by "industry" doesn't necessarily mean that it was "liberal" (at least in the sense of being anti-free market). Similarly, a decision challenged by public interest groups isn't necessarily "conservative." There are now many libertarian and conservative public interest groups such as the Washington Legal Foundation that often challenge agency actions. As Miles and Sunstein correctly note, their coding methodology here is fairly standard in the field. But that doesn't mean that it is unproblematic.
UPDATE: Ed Whelan of the Ethics and Public Policy Center has also written a rejoinder to Miles and Sunstein's reply to his original critique of their study. See here.
There is a brilliant column in today's Wall Street Journal by Dean Karlan and Jonathan Zinman, "In Defense of Usury". Here's an excerpt, but of course the whole thing is worth reading.
The authors note the behavioral economics critique of consumer credit use, i.e., that consumer may lack impulse control and the like. But they observe:
But even consumers making flawed decisions may be better off when they can borrow from regulated financial institutions at "excessive" rates.
Our organization, Innovations for Poverty Action, tested this proposition. We worked with a successful finance company in South Africa to randomly choose some just-below-the-normal-approval-bar applicants to receive a four-month installment loan. The lender charged its normal rate: 200% APR. The remaining, just-below-the-normal-approval-bar applicants (the "control group") were rejected in line with the lender's normal credit policy.
We then tracked both groups over the next six to 27 months, measuring their well-being based on a range of economic, social, health and mental health measures. Applicants who were randomly approved for a loan had higher incomes, less hunger, better credit scores and more positive outlooks than their control group counterparts -- even after paying the high interest rate. Though they had higher than normal default rates, the borderline loans were also profitable for the lender.
The new borrowers did report higher stress and depression levels than the control group. But overall, the borderline loans objectively did more good than harm. Our findings are striking because governments that restrict credit access do so on the premise that consumers make themselves worse off by borrowing at high rates.
How can it be that consumers get preyed upon in the market, yet still end up better off? One possibility is that returns to borrowing swamp the cost of consumer mistakes. Rolling over payday loans repeatedly might cost you big bucks; but it can turn out to be a good deal if you need the initial loan to fix your car, hold on to your job and avoid losing even bigger bucks in after-tax earnings.
Another possibility: The alternative to being gouged by a financial institution is being gouged more expensively by an unregulated lender.
Karlan and Zinman's findings are consistent with those of Adair Morse, who found in her article, "Payday Lenders: Heroes or Villains?" that communities that allow payday lending are more resilient in responding to natural disasters in terms of the overall welfare of individuals who live there in terms of foreclosures, births, deaths, and alcohol and drug treatment.
I hope to blog something that's nonobvious — or at least not entirely obvious — based on the results of this poll (of course, if the results are as I expect them to be); so if you can participate, I'd be much obliged.
Oral Argument in Danforth v. Minnesota:
Yesterday the Supreme Court held argument in a fascinating habeas case, Danforth v. Minnesota. It's a pretty rich and important case, so I wanted to offer some thoughts about it.
The issue in Danforth is whether state courts are bound by the limitations the Supreme Court imposed on federal habeas jurisdiction in a 1989 case, Teague v. Lane. In Teague, the Court held that when the Supreme Court changes the law in a pro-defendant direction, criminal defendants sitting in jail can't come into federal court to take advantage of the new pro-defendant rule. The basic idea is that federal habeas corpus relief is only about being unfairly imprisoned based on the rules that existed at the time you were charged and convicted; you don't get more bites at the apple if the Supreme Court decides to change the law and make an old procedure that used to be okay now unlawful. (Teague is actually much more complicated than that, but that's the basic idea.)
The question in Danforth is what to do about habeas claims brought in state courts. Let's say the U.S. Supreme Court creates some new rules that help criminal defendants, and a prisoner wants to come into state court and try to get the benefit of the new rules. Does the Teague limitation apply? Or can can individual state courts craft broader rules of jurisdiction that give defendants another bite at the apple in state court even if Teague bars that in federal court?
The question is tricky because it hinges on difficult question of what Teague meant or should be construed to mean, which in turn hinge on all sorts of contested questions about retroactivity and even the nature of judicial decisionmaking. The Teague opinion is an oddity; Justice O'Connor played legislator to address an issue the parties in Teague hadn't even addressed, and now we have to figure out just where those limitations came from and what they mean. Are the Teague limitations part of federal common law? Some sort of construction of the federal habeas statute? If so, then they shouldn't be binding on the states. That's Danforth's argument: He argues that teague was for federal courts only, and that it has nothing to do with state court jurisdiction.
Alternatively, was Teague some sort of constitutional background rule intended to be a general constitutional principle that attached to new criminal procedure decisions? In particular, does Teague stand for the notion that if a defendant is convicted and his sentence finalized based on the law as it stood, does that mean that the Constitution wasn't actually violated even if the Court later changed the law to something else? If so, then the Teague rule should be binding on the states.
The question is particularly difficult because it's not clear how Teague relates to the broader question of retroactivity of Supreme Court decisions. My own sense, after having re-read Teague and the briefs in the case, is that the defendant Danforth characterizes Teague accurately. Justice O'Connor's opinion in Teague was all about good policy and hardly at all about the Constitution. Given that, I think of Teague as being the rule for federal court but not the states. But that prompts the broader question: beyond the confusing opinion in Teague, is retroactivity a question of federal constitutional law or just federal common law? That's trickier. My instinct is that the states should be able to do what they want, but it seems an unsettled question.
Based on the oral argument transcript, it looks like there are probably five votes for the view that the Teague rule reflects general federal constitutional principles. The one to watch here is probably my former boss Justice Kennedy, and his view seemed unusually clear: He sees retroactivity as a matter of federal constitutional law, and he suggested that if states want to give defendants broader rights they can read their own state constitutions more broadly. He asked four or five questions expressing concern with the finality of judgments, suggesting that he saw Danforth's position as undercutting the power of the Supreme Court to define the meaning and scope of the Court's own decisions. (see, e.g., page 21, question to Danforth's counsel: "You want us to write an opinion which begins with the sentence, 'This Court has no interest in the extent to which its constitutional decisions upset final judgments'?" ; see also p.31, p43). While you can never tell where a Justice may end up based on his argument questions, I think Kennedy's questions in this case are unusually revealing.
If that view prevails, I wonder how states and state courts will respond. In particular, states would have an easy work-around if they wanted to take it. A state Supreme Court could simply say something like this: "We interpret our state Bill of Rights to mean exactly what the U.S. Supreme Court says the federal Bill of Rights means. However, we interpret our state constitutional law of retroactivity to be broader than the federal constitutional law of retroactivity recognized in Danforth v. Minnesota." I don't know how likely state courts are to do this; I don't know anything about retroactivity of the different state constitutions. But such a decision by a state court would replace the "federal" label attached to the right with a "state" label without changing the right one bit. It would make the Danforth case a matter of form more than substance.
Refusal to Be on Panels, Israeli Soldiers, and Obstetricians:
The post about the University of Delaware professor who seemingly refused to be on the same panel as an Israeli ex-soldier led some commenters to defend the professor. In the professor's view, the commenters reasoned, Israeli soldiers do (and not just advocate) very bad things; if the professor thinks that those things are so bad that they put the soldiers beyond the pale, then we shouldn't condemn the professor for refusing to share a panel with the soldiers, even if we disagree with his view.
I don't think this is quite right; I agree that professors are entitled to decide which panels they'll be on and which they won't be on, and to refuse to be on panels with people they see as especially evil. But I think that it's proper for us to judge their decisions, and condemn them for narrow-mindedness if we disagree with their judgment about this evil.
Here is an analogy that came to my mind; I realize it's not perfect, but it seems to me helpful. (Note that the analogy focuses only on evaluating a professor's refusal to be on the panel; I am not claiming that the students' reaction to this refusal would be the same in this hypothetical as it was in the real Delaware case.)
Say Professor X writes about medical ethics, including matters related to abortion, and say he believes that abortion is murder (or something morally close to it). He therefore believes that anyone who has performed an abortion, or who has participated in performing it, even indirectly, is a murderer. Assume that in Professor X's country, a medical education as an obstetrician and gynecologist requires people to learn how to perform abortions, including by participating in actual abortions.
Professor X therefore refuses to be on any panels with anyone who has been educated as an obstetrician, or who is involved in an organization that performs abortions (such as Planned Parenthood, or for that matter virtually any hospital in this country). He also suggests to people that they disinvite such other panelists if they want to keep him (X) on the panel. And this is so even though many of the people who have interesting and useful things to say about abortion ethics, abortion law, and reproductive law, ethics, and policy more broadly are obstetricians or are associated with organizations that perform abortions.
What would we say about Professor X's decision, especially if we disagree with his views about abortion? Well, we surely wouldn't try to legally force him to participate on the panels, or threaten him with losing his job as a professor (which in any case doesn't require participation on panels at all). He should be free to choose whom to share a table with.
But I think we would condemn him in some measure, because his decision undermines useful academic debate, and because it reflects an improper narrow-mindedness. I take it we'd say that he should engage with people whose views and actions he disagrees with, and try to persuade them (and, more likely, their listeners) that his views are better.
Nor would we be much moved by his argument that "I think people who perform or assist in abortions are like Nazi concentration camp guards; you wouldn't fault me for refusing to be on a panel with an unrepentant Nazi -- likewise, don't fault me for refusing to be on a panel with someone I see as morally tantamount to a Nazi." I think we'd acknowledge that some views and actions are beyond the pale morally, and it's not improperly narrow-minded for an academic to refuse to engage them. But I think we'd say that this is so only as to those views and actions that really are beyond the pale; and if someone has what we see as the wrong view about where the pale is to be drawn, then we can properly condemn that person's judgment.
The same, I think, applies here to Khan. If he thought that Israeli ex-soldiers are morally beyond the pale, and he were right on his moral judgment of Israeli ex-soldiers, then I would accept (perhaps even praise) his decision not to share a conference panel with them. But he has to be right on that moral judgment. If he's wrong, and I think he is, then his position is as narrow-minded and as improperly undermining of scholarly debate, as an abortion ethics scholar's decision not to share a panel with anyone who was educated as an obstetrician and therefore performed or assisted in abortions.
Asaf Romirowsky and Academic Freedom on This Blog:
A reader mentioned to me that Asaf Romirowsky, whose disinvitation I condemned earlier this week, is also the author of a column that I condemned on academic freedom grounds earlier this year. I don't see much of a logical connection between the two, but the reader suggested that I note this, and I thought others might be interested in the link as well.
University of Chicago law professors Thomas Miles and Cass Sunstein further explain their analysis of judicial "activism" on the Supreme Court, and respond to criticisms, at the University of Chicago Faculty Blog.
The critics contend, rightly, that we do not look at the high-profile constitutional cases. But the number of such cases is small, and it isn’t easy to test competing hypotheses about partisanship and restraint. Whelan argues that we fail to examine whether the agency ruling is correct. We agree that an ideal measure of judicial activism would identify the situations in which judges pursue their own ideological goals at the expense of the “correct” legal outcome. Many studies have demonstrated that ideology influences judicial decision-making in a vast range of legal contexts. But these studies generally provide no measure of the correctness of the judges’ decisions. The absence of a “correctness metric” shows that it is most difficult to measure correctness in a way that can produce empirical studies of competing hypotheses.
We chose to investigate the justices’ votes in challenges to administrative agencies’ interpretations of law because this context provides an excellent way of testing for both partisanship and activism. The Court’s own decision in the Chevron case strongly suggests that a justice’s willingness to uphold an agency’s interpretation of should not depend on whether the agency’s decision was liberal or conservative. We think that our approach is an innovation over the existing academic literature, and we know that it is a vast improvement over unsubstantiated, anecdote-driven claims about judicial behavior.
The critics allege that the design of our study is flawed because the distinctive context of agency decisions makes it more likely that conservative judges will appear activist. If the data sets include mostly liberal decisions, then of course a liberal justice will show a higher validation rate than a conservative justice. But this objection is misconceived. In addition to measuring overall rates of agency validation for the justices, we also examined whether each justice was more likely to favor an agency when the agency decision was liberal rather than conservative. We coded the political orientation of each agency decision according to an objective method used by several prior academic studies. Agency decisions challenged by industry were deemed liberal, and those challenged by public interest groups were coded conservative. If the distribution of agency decisions were skewed in a liberal direction, as some critics allege, we should have observed few or even no challenges from public interest groups. Instead, we observed a fair number of such challenges. Moreover, our study period included many decisions from both the Clinton and the Bush administration, and it would be a big surprise if decisions by the latter were mostly “liberal.”
When we looked at the data, we observed two key facts. (1) Certain justices’ rates of validation – but not others — varied widely with their own political leanings. (2) Certain justices’ rates of validation – but not others — rose when the agency interpretation agreed with their political leanings and fell when it disagreed. These two patterns suggest that certain justices are, according to this imprecise metric, reaching decisions that were likely not correct. Moreover, the patterns strongly suggest that partisanship or ideology influenced certain decisions. (Justice Thomas is the prize-winner for partisanship, but Justice Stevens is a close second.) Judicial ideology appeared to influence some justices’ votes in the very context in which courts ought to defer to agencies. By our measure, these patterns smack of judicial activism.
How can someone as intelligent and informed as Krugman concoct an interpretation of the post-World War II era that does such violence to the facts? How can someone so familiar with the intricate complexities of social processes convince himself that history is a simple matter of good guys versus bad guys? Because, for whatever reason, he has swapped disinterested analysis and scholarship for ideological partisanship. Here, in a revealing choice of phrase, he paraphrases Barry Goldwater’s notorious line: “Partisanship in the defense of liberty is no vice.”
To be a partisan is, by definition, to see the world partially rather than objectively: to identify wholeheartedly with the perspectives of one particular group and, at the extreme, to discount all rival perspectives as symptoms of intellectual or moral corruption. . . .
I understand the us-versus-them pleasures of ideological partisanship. In my younger days, I indulged in them with gusto. But at some point, ideology joined Santa Claus and the tooth fairy in my attic of discarded beliefs. Firm values, yes; definite points of view on contested empirical questions, to be sure — but to see a country as diverse, yet blessedly prosperous and stable, as this one as an ongoing war between angels and devils is to live in a fantasy world.
Just spotted an error in my post a few moments ago. Jeff Fisher (who remains as before an excellent lawyer) was on the opp in Exxon. My mistake. Too much Halloween candy, perhaps.
These second set of comments are just terrific. I am going to select out just a few for response.
1. It is certainly true that the impact of the advocate is greater at the cert stage than on the merits. I draw that distinction in the article and explain the reasons why, which largely relate to the amount of time the nine chambers are able to devote to cert (relatively little) as compared to the merits (much more, especially with the smaller docket). But the two cannot be completely severed because the cert stage sets the table these days for the merits. The percentage of affirmances has gone down over time. So success at the cert stage tends to become success on the merits, especially when the expert petitioner effectively repitches the case by raising issues differently than done below and the less effective respondent fails to object and becomes subject to a Rule 15.2 waiver.
2. Several comments raised the question whether the reputation of the counsel, wholly apart from the actual quality of the brief in a particular case, makes a difference. Based on my own experience and accounts of interviews with Supreme Court clerks, the answer seems clearly to be yes at the cert stage. Certain briefs are read more carefully and have more threshold credibility because of their author. This is true for petitions and certainly true for amicus briefs.
Of course, in most instances, the quality of the brief and the counsel’s reputation are aligned. After all, that is why the counsel has such a strong reputation. But I am less persuaded that reputation alone, apart from the quality of the presentation, is controlling on the merits. At that point, actual quality not theoretical quality is what counts. Still here, when many amicus briefs are filed on the merits and only some are read closely, those authored by counsel whose names the Justices and clerks know are more likely to get a careful look.
3. I don’t think there is much question that the vast majority of the top private Supreme Court Bar won’t take on a pollution control case, whether pro bono or not (and most are pro bono). I frequently find counsel for folks with cases before the Supreme Court. For most types of cases, it is simply not a problem to interest, literally within two hours, some of the top Supreme Court lawyers. They will compete vigorously for these cases, agreeing to lengthy interviews, outlines of arguments, for the opportunity to take on a case. This competition extends to classic pro bono cases: death penalty, Free Exercise and Establishment Clause, Fourth Amendment criminal defense cases.
But give me a pollution control case and they will almost all beg off. Not because they would not like to do the case. Or because they like pollution. These folks love Supreme Court work and frequently chafe under their firm conflict policies. But they can’t take them. It is bad for business as one comment pointed out.
Now, as one other comment suggested, this may prove to be a transitional moment and, if the Bar concludes that there is money to be made on the plaintiff’s side, we may well see such a practice develop. There are already a handful of excellent SCT lawyers who have shown a willingness to take the plaintiff’s side in business cases. David Frederick of Kellogg Huber.. is one obvious example. If the demand and paying clients develop, the Bar over time will respond.
Finally, one comment asked if I was deliberately using “pollution control” in talking about environmental cases. I was. There is far less of a conflict problem presented by natural resource law issues (e.g., public lands, national forest management) than by the kinds of air, water, and hazardous waste issues that implicate much of industry.
4. On the Exxon case, I knew I was going to get into trouble on that one, but provocation has its upside. The responsive comments were great. But I do have a few responses.
The first is that I was careful to say that cert might have been denied not just if an expert had written the opp but if BOTH an expert had written the opp AND a nonexpert had written the petition. I was not saying that changing just one of the variables would have made the difference. Note that petitioner was able to do the heavy lifting necessary to get 13 amicus briefs filed in support, in addition to putting the case in its strongest possible light in the petition. It takes great connections in the Bar to get that accomplished. A poorly drafted petition from the same ruling, without that amicus support, met by an effective opp, would, I still believe, likely have been denied. And that is all I was saying.
But now let me say more. I agree that Jeff Fisher is a great Supreme Court lawyer. I did not, however, see his name, however, listed on the brief in opposition. So I am not sure why the comment supposes he worked on the brief.
In addition, briefs in opp are a special talent and knowing how to write a good cert petition is not knowing how to write an effective brief in opp. An opp is a truly odd device. The opp’s goal is to take an extremely important significant lower court win and make it seem incredibly boring, technical, insignificant, and uninteresting. One has to avoid the temptation to get sucked in to a deep discussion of the merits. Good opp writing is a peculiar skill.
Now, perhaps the brief in opp in Exxon is as good as it could have been. The firm on that side is certainly an excellent law firm and maybe Dellinger’s skill (including the bringing together of 13 amici) made it a fait accompli. I can not know for sure. And, as before, I still have not had time to read the opp in detail.
But one reason I have not is that the opp is 30 pages, the max allowed by the Rules. I must confess that the page length alone causes me a little concern. When in the SG’s Office, we learned that a long opp was often (not always) a mistake, because it unavoidably suggested that the case was interesting and invited the clerks to think long and hard about the merits and spend more time on it. The purpose of an opp is not to persuade the clerks that the decision below is right and truth and justice have been vindicated. It is to persuade them that it is uncertworthy and that can typically be done in a very few pages and when done in that manner, the short page length underscores your claim that cert should be denied.
Less in opps is almost always more. My goal for opps was 10 pages and, if at all possible, no more than 15, and I loved 5-10. A complete diss.
As for Allison Engine, the comment may well be right that the case was a slam dunk cert grant. As I said before, I have not looked at the case closely. My only point here is that what often looks like a slam dunk from the cert petition has taken a lot of work to look that way. I have read some lower court opinions, followed by a Carter Phillips cert petition, and been quite amazed at how the case has been effectively transformed to seem certworthy (and then cert is in fact granted). And, while it looks easy once it is written, that is only because of the expertise reflected went within it. And, conversely, a certworthy case in the wrong hands quickly becomes cert denied. It happens all the time.
One more caveat about Exxon and Allison Engine, which is to start where I began with them. I do not want to hold them out as poster-cases in support of my thesis. That would require far more study of their details than I have given and the opps in both cases might well have in fact been spectacular.. My article already contains enough internal support to warrant my conclusions and I would encourage those interested to take a look at it. What has been inevitably simplified for the purpose of this blog is treated in a far more nuanced and careful way in the full article. I mentioned those two cases only because the timing of two more grants from two leading members of the bar just as my blog was undergoing was too irresistible to go unmentioned.
Finally, it is important to stress that one can be a spectacular lawyer without being a spectacular Supreme Court lawyer. And, many of the best Supreme Court lawyers would be truly miserable trial lawyers. They don’t have the correct skill set. And, yes, of course, there are some trial lawyers who would also be excellent Supreme Court lawyers. Some of the best arguments before the Court are by the trial counsel who handled the case the entire way. They tend, however, to be the exception just as the excellent Supreme Court lawyer who can be an excellent trial lawyer is also the exception. Specialization in the practice of law, including litigation in general and Supreme Court litigation in particular, has its advantages. And, what we are witnessing right now is a group of lawyers effectively exploiting those advantages to an extent not seen before the Court since the early 19th Century.
When Law Students Set the Curve:
After reading this New York Times story about a Stanford Law School student group that is rating law firms on lawyer diversity, I visited the website and was immediately struck by something: When grading the law firms, the students used a flat C curve. Ouch!
Richard Pierce on Law School Curricular Reform:
The New York Times has a story today on curricular reform in law schools. My colleague Richard Pierce, who has taught for 30 years at several different schools (Kansas, Tulane, SMU, Columbia, and GW) and briefly was the Dean of one (Pittsburgh), e-mailed around a skeptical response. I thought it was worth passing on, so I have reprinted it with his permission (with a few minor edits and paragraph breaks added by me):
The Times story is a laugher for those of us who have been around for a while. It reports on "curricular innovations" that are being adopted by many schools. Number one is a required first year course in legislative and administrative law. Jerry Mashaw and I were just yuching it up about this innovation. Jerry, Dick Merrill, and I were victims of this new idea when UVA adopted it in 1969. UVA abandoned it after 5 years. Students hated it, and profs complained that students learned much less ad law when they were required to take the course and when they lacked basic building blocks like civ pro and con law. I was victimized a second time by a variation on this theme when Columbia hired me in 1989 to teach its new required first year course in foundations of the regulatory state. That was one of 3 new required first year courses Columbia introduced that year. None of the 3 survive today. A student poll ranked them 3 of the 4 courses students disliked the most. (Thank God for Trusts & Estates). The second most popular innovation mentioned by the Times is a mandatory externship. [GW Law has] had a successsful externship program for many years, probably because of the quality of the people who have run it combined with a legal community that provides unrivaled opportunities for good externships. The long history of externships around the country is rich and not particularly encouraging, however. When I was at Tulane, we had a fascinating debate about a proposed externship program. The ABA had just concluded an investigation of externships that found that most students were not supervised and were assigned tasks like copying documents or acting as messengers. Moreover, two student externs at a Florida law school had just been indicted for playing minor roles (basically bagmen) in extensive operations run by high-ranking state officials who were engaged in narcotics distribution. Our debate at Tulane focused on nice questions like: how could we explain a decision to refuse to provide externs to various important state agencies that we had reason to believe would use the externs to participate in criminal conduct? We concluded that we could not adequately explain such decisions, and we rejected the proposal to create an extern program.
Asaf Romirowsky, a fellow at the Middle East Forum and an Israeli Defense Force (IDF) veteran ... was invited to speak at a university forum sponsored by the College Republicans and College Democrats on the topic of anti-Americanism in the Middle East. Others scheduled to appear on the panel included Clinton-era National Security Council official Stuart Kaufman, University of Delaware political science professor Muqtedar Khan and a graduate student.
But upon learning that the university had invited Mr. Romirowsky, who is also manager of Israel and Middle East affairs for the Jewish Federation of Greater Philadelphia, to appear at the forum, Mr. Khan wrote a letter to one of the panel's organizers, identified only as "Laura," expressing displeasure at having to appear publicly with a former IDF soldier.
—— Original message ——
Date: Tue, 23 Oct 2007 20:02:29 -0400
From: "Muqtedar Khan"
Subject: Re: Understanding Anti-Americanism Panel
To: [Names redacted]
Laura, I have to speak at the Pentagon tomorrow. My
workshop is from 12-4. I hope to catch the 5 pm
Acela from DC and will be back in town by 7 pm. I
will come directly, but may be late. I am also not
sure how I feel about being on the same panel with
an Israeli soldier who was stationed in West Bank.
Some people see IDF as an occupying force in the
West Bank. I am not sure that I will be comfortable
occupying the same space with him. It is not fair to
spring this surprise on me at the last moment.
Panel organizers subsequently told the IDF veteran, a citizen of both the United States and Israel, that he ought not attend the panel but that he would find himself welcome speaking to university students at a later date. Mr. Romirowsky said he would rather not do so....
Mr. Romirowsky, currently working toward his Ph.D. in Mediterranean Studies at Kings College in London, has called attention to the ties Mr. Khan has forged over the years to groups allegedly affiliated with Islamic terrorists. [Details omitted. -EV]
Khan said he was only expressing his discomfort and that he would not have suggested anyone be excluded. He said that when he arrived at the event, he assumed Romirowsky would be there. He added that people who received his e-mail had missed the humorous tone, in which he said he was trying to be “cute” with references to “occupying the same space” intended as an ironic reference to Israel’s occupation of the West Bank.
A few thoughts:
1. From what I know, it seems to me a mistake to say, as The Bulletin and Michael Rubin said at the start of their items, that "the University of Delaware" disinvited Romirowsky. As best I can tell, the student groups decided to put on the event, they decided whom to invite (though I imagine they might have gotten some advice from faculty members), and they decided how to react to the Khan e-mail. I'm unaware of any decision that the University of Delaware or its departments or leaders made here; perhaps the University administrators should have counseled the students not to withdraw the invitation (not required them, which would itself have interfered with the students' right to select their speakers, but counseled them), but it's not clear that the administrators were even given an opportunity to do so.
2. The decision to disinvite strikes me as wrong. First, it's rude; it pretty clearly conveys a message to the disinvited person that he's less important than the person who doesn't want to share the stage with him, and while that's often said implicitly simply by the decision about whom to invite in the first place, good manners generally precludes doing this expressly, once the invitation has been given. Second, it shows a willingness to give in to someone's desire to exclude a wide range of important contrary speakers (more on this shortly).
3. At the same time, remember that these are college students in mainstream college organizations, who are trying to put on a successful event but are facing the prospect of losing one speaker. They're likely not very experienced in such matters, and easily spooked, especially by professors at their own institution. It's thus pretty easy for them to get buffaloed into doing whatever it takes to keep the more illustrious speaker, even when such an action is wrong for the reasons I mentioned above. They were put in a difficult position by Prof. Khan's message, and while they reacted the wrong way to it, I wouldn't condemn them as harshly as I would an academic department that did the same.
4. The main fault here, I think, is Prof. Khan's, but the matter is a bit complex. It's not inherently wrong for a person (including an academic) to refuse to share the stage with some other person, even when the refusal is based on the other person's speech. Sometimes this happens, and properly so, when one person thinks another has been intolerably rude, or academically dishonest. Sometimes it happens when one person thinks another has views that are just beyond the pale.
But if one draws the pale in a way that excludes a vast range of people who have important things to say about one's field, that suggests an unwillingness to engage in serious debate about the field. And if one draws the pale based on the excluded people's supposed moral failings, then outsiders will have to judge if your moral sense is right, and can rightly condemn you for academic narrow-mindedness if your moral sense is mistaken.
It seems to me that Khan's message strongly suggested — despite his later characterization of it — that he would not willingly share the stage with any former Israeli soldier, which basically means pretty much any Israeli (since pretty much all Israelis had to participate in the military). That's a huge chunk of the people who have important things to say about the very topic in which he specializes. The position strongly suggested by his message thus undermines the possibility of serious and helpful debate on the subject. And his moral judgment, which seems to be that mere past membership in the Israeli army makes someone unworthy of debating, strikes me as quite repugnant, for all the familiar reasons. True, others may disagree with me for all their familiar reasons; but I think they are mistaken, and mistaken in a way that undermines serious academic debate.
Relatedly, Khan should have realized — and perhaps did realize — that there was a good chance that his message would be read as more or less a demand that students disinvite Romirowsky. I think it would have been unduly narrow-minded, in a way that's especially unsuitable for an academic, for Khan to say, "I'm sorry to hear Mr. Romirowsky was invited; given this, you of course have to keep Mr. Romirowsky on the panel, but I have to withdraw." But it's worse when one sends a message to students that complains about the "unfairness" of the invitation to Romirowsky, that strongly suggests one will be uncomfortable sharing the panel with him, and that, in my view, implicitly suggests that the author will quit the panel if the other invitation continues to stand.