This essay considers the Anglo-American legal treatment of sadomasochistic sexual practices, under which the consent of the masochist furnishes no defense to a charge of assault against the sadist. The law's unwillingness to recognize the masochist's consent in this context, I argue, suggests unease with the ways in which S/M reflects and exposes the operations of law. The essay begins with Robert Cover's work on law's potential to domesticate violence, locating an aporia around sadomasochistic sexuality and the putative irrationality it represents at the heart of Cover's account. It then discusses the legal regulation of homosexuality as a backdrop against which to situate the legal treatment of S/M within discussions of privacy and consent.
This abstract reminded me of a criminal case in Ohio in 2001. Multiple stories from the Akron Beacon Journal discussing the case are reprinted here. An article from the August 7, 2001 edition of the Beacon Journal lays out the basic allegations:
The alleged victim doesn't deny that she and Kevin Erwin had kinky sex, using whips and assorted toys to pleasure each other.She says, though, that rough play turned to torture one day two months ago when she forcefully was tied to a bed, raped, beaten, bitten, branded with the letter K, threatened with a knife and blowtorch, burned with a lighter and shocked in several parts of her body with an electrical device.
"It felt like screws digging through your bones,'' the 38-year-old fast-food restaurant manager testified yesterday, describing the pain from the electrical current that shot through her foot, genitals, shoulder and underarm. "It was a constant assault. The more agony I was in, the happier he was. He wanted to hurt me. He said he was going to kill me.''
Erwin faces charges of kidnapping, rape and felonious assault. His trial began yesterday in Stark County Common Pleas Court.
However, in the end, a jury composed of six men and six women acquitted Erwin on all counts. In the aftremath of the trial, the jury foreman stated that a defense expert on sadomasochism proved influential and made remarks that indicated that all of the conduct appeared to be consensual. In an effort to demonstrate the consenual nature of the relationship, Erwin's attorney had entered into evidence notes and e-mail exchanged between the two as well as an S&M master-slave contract that had been executed.
In a rapidly expanding universe of blawgs, it's increasingly impossible to keep up with all of the new content. Raising the Bar provides a nice vehicle for acquainting readers with blawgs and/or posts that they might not have otherwise encountered. Kudos to Mellow-Drama for coming up with the idea.
Professor Stephen Karlson's appealingly themed Cold Spring Shops also linked to another post of mine in recent days and described it thusly:
I am unable to characterize a post that reads like a legal memorandum as a Fisking.
I think that's the most amusing reaction to one of my posts that I have yet encountered.
Several blogs have also permalinked this site of late: newcomer The Briny Pickle, the Burnt Orange Report a fellow law clerk's blawg simply entitled In Re:, and Greg Goelzhauser's Law and Economics Blog. Incidentally, for those interested in all things related to the Lone Star State, the Burnt Orange Report has the most comprehensive listing of Texas bloggers and Texas news sources that I have yet seen.
I've also managed to garner links from Creative Destruction, Deinonychus Antirrhopus, the Modulator, and the SCSU Scholars. Interest in discussions of SMU's affirmative action-related bake sale and Scripture accounted for these links.
Additional Thanks. Last but not least, allow me to thank many more familiar bloggers for their relatively recent links to this site. Beldar Blog, Crescat Sententia, How Appealing, Legal Reader, Marstonalia, Mellow-Drama, Politics & Law, Sixth Circuit Blog, Southern Appeal, SW Virginia Law Blog, Tainted Law, Three Years of Hell to Become the Devil, and the Volokh Conspiracy have all linked to this site in the recent past. All of these are fine blawgs and I am flattered to be associated each of them.
(I have largely used Technorati in compiling these lists. Omissions are inadvertant. Feel free to contact me regarding any omissions.)
I was initially inclined to criticize Froomkin's idea for being unrealistic in its assessment of online RPGs' potential for serving as similacra of real life. There are, after all, numerous differences between these virtual worlds and everyday life, not the least of which is the fact that no one truly has to live with the consequences of their online actions. It would be difficult to set parameters that realistically constrain the deliberative process. And without such parameters, these simulations would be like playing poker without betting. Anticipating and accounting for all of the relevant variables would also likely be problematic, particularly in an artificial environment.
Froomkin and his co-author (and wife), Caroline Bradley, do acknowledge some limitations of online RPGs. But they also seem to suggest that skepticism (like mine) can be overstated. As they note in their paper, in-game behavior already intersects with real world valuations:
As Edward Castronova has documented, large numbers of people spend very large amounts of time immersed in virtual worlds. As the structure of many MMORPGs makes it difficult, time-consuming—and even boring—to "level up" avatars [i.e., characters] to the point where they have substantial skills and resources, some people reach for shortcuts. Valuing time over money they go outside the game to purchase game-based resources or high-level avatars. The volume of transactions in Everquest coinage and characters allowed Castronova to estimate the exchange rate for Norrath's platinum coins against the US dollar at 1.07 cents per platinum coin. Based on his estimates of the amount of time it takes to create virtual value, and the trading prices of avatars on dollar-denominated outside-of-game markets, Castronova also estimated the gross national product of Norrath to be as high as $135 million. In per capita terms, Everquest's world had a GNP of as much as $2,266 per head. Using a range of estimating techniques gave Norrath a GNP per capita somewhere between Russia and Bulgaria. Using survey data, Castronova estimated an average hourly wage for Norrath avatars at 319 platinum pieces per hour, which at the market rate of exchange worked out to $3.42 per hour.[Footnotes omitted; hyperlinks added]
Although I remain skeptical, I have to admit that the quoted material and stories like this one from the BBC indicate that online players do ascribe very real values to their online possessions and act accordingly. The BBC reports that:
Wizards, warriors and witches are nothing new in the online gaming world, but have they been joined by real life criminals stealing virtual goods worth hard cash? South Korea's police are already on the case.* * * Players in some online games have had their virtual homes invaded by gangs who kick them out of the house and steal all their virtual goods.
Others have been conned out of powerful magic items that, in some cases, took months of work to obtain.
The police in South Korea - a country as mad about gaming as the UK is about football - report that of the 40,000 or so cybercrimes reported in the first six months of 2003, more than half (22,000) had something to do with online gaming.
The problems of online crime are made more serious by the growing numbers of people making a living from trading items from the games.
A game account that gives someone control of a powerful character can change hands for thousands of pounds. Even single powerful magic items can command a hefty price.
So given that virtual items, mere bits in a datastream, can be shown to have real world value is it about time that the police started to be called in to investigate some of these crimes?
* * * Jennifer Granick, an expert on technology law from the Center for Internet and Society at the Stanford Law School, says courts had no problem treating intangibles, such as intellectual property, as things that can be stolen.
"I'm not sure that governments would care to prosecute thefts of online goods at this point in time, but I have no doubt that the argument that such items are valuable is strong."
It may be, however, that the potential blurring of this distinction between virtual and real life imperil's Froomkin's thesis in a way that my prior skepticism failed to do so. It seems to me that the notion that virtual worlds constitute potential theoretical laboratories hinges upon the assumption that such simulations sufficiently mimic the real world, but do not intersect with reality in ways that prescribe inalterable legal rules. If virtual environments are, in certain respects, constrained by actual real world laws regarding intangible property, then they may not be the tabula rasa that Froomkin envisions. Could it be that virtual reality is not sufficiently virtual to serve as a venue for legal experimentation?
At age 3, Timberland is too young to be embarrassed about being named after a bestselling brand of footwear, but his mother cringes."His daddy insisted on it because Timberlands were the pride of his wardrobe. The alternative was Reebok," said the 32-year-old nurse, who is now divorced.
"I wanted Kevin."
The boy is not alone: five other Americans were named Timberland in 2000, according to social security records.
A trend for naming children after favourite possessions is accelerating in brand-driven America.
The records show that in 2000, 49 children were named Canon, followed by 11 Bentleys, five Jaguars and a Xerox.
* * * Foreign brands are regarded as increasingly chic: Chanel is popular among doting mothers, and several boys have been named after a Japanese family car called Camry.
At least one couple has apparently attempted to sell the naming rights of their child to corporations over the Internet. However, according to the article excerpted above, the motivation is usually non-commercial:
Edward Callary, a past president of the American Names Society, said a determination to be different was the hallmark of the current generation of young parents: "The more we feel defined by numbers, in our postal codes and bank statements, the more we need to shout out a unique name into the world.
Being a traditionalist, I find this trend appalling. But let's set aside my disgust. Assuming that uniqueness is the motivating factor, this trend does not speak well of these parents' intellect. One can hardly assert uniqueness by naming one's child after ubiquitous products. The story, by the way, goes on to note that Social Security records document that 24 children were named "Unique" in 2000.
Syria has said it would consider sending peacekeeping forces to Iraq if a deadline is set for a U.S. troop withdrawal and if the United Nations assumes control of its war-ravaged neighbor.Arab League Secretary-General Amr Moussa told Al-Hayat while in New York for the U.N. General Assembly that Arab states will not send forces to Iraq to "defend occupation troops."
"If any Arab country is considering sending troops, this will be after they get a request from those concerned, the Iraqis," Moussa was quoted as saying.
"We care about Iraq, not the occupation."
I am pleased that the Saudis will have no hand in Iraq, for reasons that should be obvious. But what possible good could come of having the likes of Syria involved in Iraq? Did we really go to the trouble of deposing one Baathist regime only to have it occupied by another Baath Party-controlled state? If this story is an accurate indicator of what a U.N.-led occupation would look like, we would be better off going it alone and footing the entire bill ourselves.
Nota Bene: Incidentally, who at AP decided that Iraq qualified as "war-ravaged"? Afghanistan is "war-ravaged." If Iraq, which was subject to a short, minimalist military campaign also qualifies as "war-ravaged," then the term has no meaning.
Update: I stand corrected. Iraq, for reasons all too familiar but overlooked by myself, is indeed "war-ravaged." See the comments for the details.
For some reason or another, many people cannot seem to grasp the concept of personal responsibility. Suicide is another event that triggers such lawsuits. Rock music is a frequent target of opportunity for those who inevitably think that someone else must be responsible for such self-inflicted tragedies. See, e.g., Waller v. Osbourne, 763 F. Supp. 1144 (M.D. Ga. 1991), aff'd, 958 F.2d 1084 (11th Cir. 1992), cert. denied, 506 U.S. 916 (1992); Vance v. Judas Priest, No. 86-5844, 1990 WL 130920 (Nev. Dist. Ct. Aug. 24, 1990) (unpublished opinion). Music lyrics are also blamed for violent conduct carried out against others with some regularity. See, e.g., Cox v. Rap-A-Lot Records, No. 95-2236, 1996 WL 227233 (10th Cir. May 6, 1996) (unpublished opinion).
No doubt, the content that we choose to upload into our cerebrum has the potential to affect our character and conduct in some fashion. Anyone who accepts the notion that a classical liberal education can improve a person has to concede the accuracy this proposition. (Or else why bother?) But this acknowledgment of potential affect is not a concession of cause and effect.
I think the failure to appreciate this critical distinction is what leads people like Thompson to attempt to hold third parties liable for the wrongdoing of others. We have recently seen similar failures of logic regarding causation and volition at play in a variety of contexts in our legal system (e.g., suits against gun manufacturers, suits against fast food restaurants). But if a person attacks another with a kitchen knife, it seems to me that the attack says more about the attacker than the cutlery or its manufacturer. Likewise, if someone is inspired to engage in a crime spree that is reminiscent of a particular video game, doesn't it just signal that something is terribly wrong with the that particular individual, especially given that the vast majority of such players do not become criminals? Logically speaking, how are suits directed against video game-makers and distributors any different from a hypothetical suit against the authors, publishers, and distributors of a book like A Clockwork Orange in the event that someone imitates that novel's miscreants?
It's not that publishers, for example, cannot under any circumstance be liable for illegal activities connected with their publications. See, e.g. Rice v. Paladin Enters., Inc., 128 F.3d 233 (4th Cir. 1997), cert. denied, 523 U.S. 1074 (1998); see also Jacob Sullum, Murderous Prose, Reason Online, May 27, 1998 (discussing the Rice case). However, Grand Theft Auto is no more a vocational primer for carjacking and other felonious mayhem than Lolita is a how-to manual for child molestors. I have played the former and have read the latter, yet I have managed to restrain myself from stealing any cars or abducting any children. To borrow a phrase from Timothy Sandefur: Behold my marvelous self-control!
Bryant writes:
. . . [A]re we forgetting about the state action doctrine here? SMU is a private school, to which the First Amendment has not been incorporated. I haven't read Title VI, so I don't know if it conditions acceptance of federal dollars (which SMU certainly does accept) on complying with the First Amendment as if a public school, or if it even could. And there might be state or federal public accomodation laws (like those at issue in Boy Scouts v. Dale?) SMU has to comply with. But that would make this a statutory issue, not a constitutional one. I think the SMU administration was dumb, but I don't think it violates the First Amendment.
In a literal sense, it is my understanding that Bryant is almost certainly right regarding the difference between public and private universities. However, in discussing constutional law, it was not my intent to suggest that this incident was a violation of the Constitution that might be litigated in court.
The reason that I addressed the issue in terms of constitutional law is because SMU itself purports to cherish both academic freedom and the other rights asociated with the First Amendment. Consider, for example, Vice President for Student Affairs Jim Caswell's statement quoted in the Dallas Morning News:
"We value free speech, and I think our record here shows freedom of expression is important to the academic community and especially this one."
Consider also the following statement made in SMU's official press release:
SMU has a long tradition of encouraging open debate and considers such dialogue central to its academic mission.
These statements are simply incompatible with SMU's decision to halt the mock bake sale. There is a Janus-like quality to SMU's actions. It purports to value the First Amendment while simultaneously trampling it. So, no, SMU, as a private institution, is not bound by the same standards of academic freedom and other First Amendment doctrines that bind a public university. However, SMU professes to cherish both academic freedom and its students' First Amendment rights. Accordingly, it ought to voluntarily comply with the dictates of the First Amendment. Otherwise, its purported valuation of First Amendment freedoms is just so many empty words. Given SMU's stated beliefs, the fact that SMU's conduct does not pass constitutional muster ought to matter very much to the university's administrators.
The Young Conservatives of Texas chapter ran its so-called affirmative action bake sale to protest the use of race or gender as a factor in college admissions. Conservative groups have held similar sales at colleges around the country since February.Group leaders say they were only making a point while exercising their freedom of speech, but a black student who filed a discrimination complaint with SMU said the bake sale was offensive. SMU officials said they halted the event because it created a potentially unsafe situation for students.
"This was not an issue about free speech," said Tim Moore, director of the Hughes-Trigg Student Center. "It was really an issue where we had a hostile environment being created that was potentially volatile."
During the bake sale, students were crowding around the table outside the student center, and several began to get into a shouting match, Mr. Moore said.
David C. Rushing, a second-year SMU law student and leader of the conservatives' group, said the event didn't get out of hand and that at the most, a dozen students gathered around the table of sugar and chocolate chip cookies and Rice Krispie treats.
* * * Mr. Rushing, 23, said the events strive to give students a sense of the inequality he says is created by unequal college admissions policies for whites and minority groups.
Matt Houston, a sophomore, said the group's sign, which listed prices for the treats by the race and sex of buyers, was not a learning tool. It was offensive, he said.
"My reaction was disgust because of the ignorance of some SMU students," said Mr. Houston, who is black. "They were arguing that affirmative action was solely based on race. It's not based on race. It's based on bringing a diverse community to a certain organization."
* * * "We value free speech, and I think our record here shows freedom of expression is important to the academic community and especially this one," said James Caswell, SMU's vice president of student affairs.
Although the director of the student center emphasized a threat to public safety, the students hosting the bake sale claim that the school's motives were quite different. According to a press release issued by the Young Conservatives of Texas:
YCT at SMU was originally asked by university officials to shut down the bake sale because several students had complained that the premise was offensive, and not conducive to the community environment that SMU strives to create. However, YCT had completed all the necessary paperwork to hold this event.* * * YCT initially refused to discontinue their bake sale, insisting that the event was designed to prove a point about affirmative action and to educate the student body. After this, the group was ordered to do so and presented with a non-discrimination clause in the student handbook saying that SMU will not discriminate based on race or gender.
For it's part, the university has also issued a press release. The release reads, in its entirety:
Following is a clarification of an incident leading to media reports portraying the matter as an issue of free speech at SMU.On September 23, University officials received complaints from several students, concerned that a bake sale had been set up outside the Student Center with different prices for baked goods based on race and gender. At the request of the concerned students, a University official visited the site and determined that a volatile situation had been created and that the event should end in the interest of student safety. The sponsoring group, the Young Conservatives of Texas, had received permission to set up a bake sale, but failed to inform University officials of the true purpose of the event.
SMU has a designated debate area on campus for students to set up tables with information on various political issues, available to all student organizations. It is a violation of the University's nondiscrimination policy to sell goods at different prices based on race, ethnicity, or gender; however, signage expressing political points of view is a matter of free speech consistent with University policy.
SMU has a long tradition of encouraging open debate and considers such dialogue central to its academic mission. An open forum on affirmative action had already been planned for October 8 at SMU, and the Young Conservatives of Texas will have an opportunity to express their point of view, along with other students. They will also have the opportunity to set up a table with signage in the designated campus debate area, but may not engage in discriminatory practices through the sale of goods priced according to race, ethnicity or gender.
What is amazing to me about the university's response is that it apparently cannot identify its own reasoning with any clarity. Several rationales seem to be put forward all at once. The purported rationales appear to be as follows:
Unfortunately for the university, none of these reasons pass constitutional muster. Given that SMU's officials purport to respect free speech rights, this ought to matter a great deal to them. Let's take the potential justifications one at a time in the order listed above.
First, the notion that the conduct involved here does not constitute protected First Amendment activity on account of the fact that it does not literally consist of speech is a specious argument. The Supreme Court has rejected such a principle, holding that First Amendment rights "are not confined to verbal expression" and "embrace appropriate types of action." Brown v. Louisiana, 383 U.S. 131, 142 (1966). Expressive conduct or symbolic speech is constutionally safeguarded from prohibition when the conduct is prohibited "precisely because of its communicative attributes." Barnes v. Glen Theatre, Inc., 501 U.S. 560, 577 (1991) (Scalia, J., concurring) (emphasis in original). Finally, it is not clear that speech in the most literal sense was not involved here. After all, the differential price scheme was memorialized in writing on a sign. Likewise, a good deal of speech, apparently of a somewhat heated nature, was taking place in the immediate vicinity.
Second, the university argues that the conduct was discriminatory and therefore in violation of SMU's policies. There are really two potential claims here. The university contends in its press release that sale of goods to students at prices that vary according to the purchaser's ethnicity is itself discriminatory. The students who filed the complaint against the bake sale also indicated that it was offensive, and potentially constituted racial harassment. For example, student Kambira Jones is quoted in the Dallas Morning News as stating that:
"When I saw this, I was like, 'I can't believe they let you guys post this,' " she said. "I felt they were attempting to make Hispanics and blacks feel inferior.
The student center's director's remarks indicated that the event may have been shut down on the basis of the latter, inasmuch as he uses the phrase "hostile environment" in his explanation of the decision to halt the bake sale.
As a matter of fact, the first of these two discrimination-based arguments appears to be mistaken. As the leader of the Young Conservatives of Texas commented:
"This event was obviously symbolic speech, not an attempt to set up a bakery. We sold only a few dollars worth of baked goods and, if anyone really wanted the items, we would have gladly given them away regardless of race. Our purpose was to speak out against racial and gender discrimination by illustrating what affirmative action does."
According to the Dallas Morning News story, the group made less than "a few dollars." In approximately forty-five minutes of time, the "sale" netted a whopping $1.50. So the facts on the ground certainly do not corroborate the notion that a bona fide discriminatory commercial enterprise was underway.
Moreover, the prospect of being confronted by university administrators aghast at discriminatory conduct is patently laughable. If it were not for racially-tinged admissions policies, the very protest that the university shut down would not have taken place. As detailed by Rushing, SMU is certainly no stranger to policies constructed upon race and ethnicity:
"SMU's Department of Multicultural Student Affairs promotes dozens of student organizations that exclusively admit members of only certain races and ethnicities. Moreover SMU itself sponsors numerous racially exclusive programs such as its Orientation of Minority Students, Minority Student/Parent Reception, and Minority Academic Awards Ceremony. To avoid being hypocritical and comply with its own stated policy, SMU must now shut down these myriad organizations and programs that are even more offensive than charging races different prices for goods, as they totally exclude entire racial groups."
The second harassment-based discrimination claim is a complete non-starter. As a general proposition, prohibitions of "speech that is deemed likely to cause a certain response in the audience based on its content are typically viewed as skeptically as direct content restrictions." Gerald Gunther & Kathleen Sullivan, Constitutional Law 1208 (13th ed. 1997). The sort of direct content restriction that SMU's halting of the bake sale most closely approximates is viewpoint discrimination. "The [Supreme] Court generally treats restriction of a particular point of view as the paradigm violation of the First Amendment." Id. at 1204. A harassment-based discrimination claim is actually somewhat reminiscent of the sort of Fourteenth Amendment arguments advanced in favor of speech codes and anti-pornography ordinances. Neither the codes nor the ordinances have met constitutional muster. See, e.g., Am. Booksellers Ass'n v. Hudnut, 771 F.2d 323 (7th Cir. 1985) (anti-porn ordinance), aff'd mem. 475 U.S. 1001 (1986); Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (campus speech code).
Third, the university's argument that the Young Conservatives of Texas effectively misled administrators by failing to appraise them of the political nature of their mock bake sale, notwithstanding literal compliance with the student center's paperwork requirements, is tantamount to a prior restraint. In effect, the university is arguing either that: (a) had it known of the nature of the event, it would have prohibited it from taking place from the very start; or (b) duly registered student organizations must clear all political speech with university authorities prior to exercising any First Amendment rights. As the Supreme Court has noted, "[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963).
Fourth, nothing in the factual recitations rendered by the Dallas Morning News, the Young Conservatives of Texas, or SMU tend to support the notion that public safety was at issue. For example, none of the accounts relate that the university police were dispatched. Indeed, notwithstanding some alleged "shouting," students who objected to the event actually went to and filed a complaint with university administrators rather than becoming aggressive or violent. No one maintains that there were any threats issued. No one has even suggested that colorful language was employed. In its press release, SMU represents that the situation was "volatile" and that the event was halted in the interest of "student safety," but literally not one corroborative factual allegation has been set forth. SMU's account, of course, is flatly at variance with the facts as alleged by the Young Conservatives of Texas. Indeed, the SMU press release is contradicted by the university officials who were there on the scene. As reported in the SMU Daily Campus:
According to Hughes-Trigg building manager Tim Moore, two students came to the Mane Desk upset about signage on the West bridge booth sponsored by the YCT. Moore and Director of Student Affairs Arlene Manthey went to the West bridge to see what was happening.“We saw a diverse group gathered in front of the booth. We also saw another piece of signage that read ‘Affirmative Action is Racist,’ along with the sign stating the prices for the sale,” Moore said.
Seeing that the situation could have become volatile, Moore and Manthey confronted the students running the booth and made them stop the bake sale.
The emphasis is mine. Notwithstanding this rather unalarming account of the state of affairs when the event was shut down, Caswell states in the Daily Campus article that, "[t]he situation was escalating to the point of danger." The factual grounds for this conclusion remain unelaborated, however. Moreover, SMU's account does not bother to inform readers of the source of this purportedly "volatile" situation. Surely SMU cannot be suggesting that if the exercise of one's First Amendment rights makes others threaten violence or become violent that the cure will be to halt the exercise of those rights. Criticism of affirmative action does not constitute fighting words (i.e., personally abusive epithets). See Cohen v. California, 403 U.S. 15, 20 (1971) (discussing fighting words); see also John Hart Ely, Democracy and Distrust 114 (1980) (noting that the fighting words doctrine requires "a quite unambiguous invitation to a brawl"). Excepting the employment of fighting words, suspending the First Amendment in the face of agitation would effectively consign the amendment to oblivion. All one would have to do to suppress disagreeable speech is threaten lawlessness. In short, under SMU's apparent theory of the First Amendment, the extent of one's free speech rights would be inversely proportional to the offense accrued by their exercise. The more offended or excited to opposition one's opponents became, the less right to free expression one would retain. Such a rule turns the First Amendment on its head.
This fourth justification for the suppression of speech dovetails somewhat with SMU's third rationale (i.e., speech as harassment) and translates into a supposed right of listeners to curtail speech that they find vexing. The Supreme Court has explicitly rejected such a prophylactic rule:
Finally, in arguments before this Court much has been made of the claim that Cohen's distasteful mode of expression was thrust upon unwilling or unsuspecting viewers, and that the State might therefore legitimately act as it did in order to protect the sensitive from otherwise unavoidable exposure to appellant's crude form of protest. Of course, the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense. See, e.g., Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). While this Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue, e.g., Rowan v. United States Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970), we have at the same time consistently stressed that 'we are often 'captives' outside the sanctuary of the home and subject to objectionable speech.' Id. at 738, 90 S.Ct., at 1491. The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.
In addition, SMU's public safety argument, as a general matter, is very telling in regard to the constitutionality of its decision to halt the mock bake sale. Consider this passage penned by Law Professor John Hart Ely:
Restrictions on free expression are rarely defended on the ground that the state simply didn't like what the defendant was saying; reference will generally be made to some danger beyond the message, such as a danger of riot, unlawful action or violent overthrow of the government. Thus in Brandenburg the state's defense was not that the speech in question was distasteful, though it surely was, but rather that speeches of that sort were likely to induce people to take the law into their own hands. The reference of O'Brien's second criterion is therefore not to the ultimate interest to which the state is able to point, for that will always be unrelated to expression, but rather to the causal connection the state asserts. If, for example, the state asserts an interest in discouraging riots, the Court will ask why that interest is implicated in the case at bar. If the answer is (as in such cases it will likely have to be) that the danger was created by what the defendant was saying, the state's interest is not unrelated to the suppression of free expression within the meaning of O'Brien's criterion [2]. The categorization approach of cases like Brandenburg and Cohen, rather than (either variant of) O'Brien's criterion [3] is therefore in order, and the regulation will very likely be invalidated.
John Hart Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv. L. Rev. 1482, 1496-97 (1975).
Fifth, the university's press release seems to indicate that it has express times and places set aside for political events and that the mock bake sale failed to comply with these restrictions. In this fashion, the university may hope to get around the aforementioned prior restraint problem. However, even SMU's time, place, and manner restriction argument fails to insulate from unconstutionality its decision to shut down the mock bake sale.
As an initial matter, designated free speech zones on (state) college campus's are of dubious constitutionality in general. The Supreme Court has yet to address the issue. However, a federal district court in Texas has already struck down one such free speech zone at the University of Houston. As reported by the Houston Chronicle on November 11, 2002:
UH . . . declared after the March 2001 [anti-abortion] exhibit that most of the university would be closed to "student expression," except in five designated free speech zones. Students would need prior approval to use any of those free speech zones.Since Butler Plaza was not one of these designated areas, university officials denied a request by the Pro-Life Cougars student group to erect the same anti-abortion display in the plaza last fall. The student group, represented by the conservative Christian Alliance Defense Fund of Scottsdale in Arizona, sued.
In June, U.S. District Judge Ewing Werlein Jr. ruled that UH's policy was unconstitutional because it gave dean of students William F. Munson "unfettered discretion" in determining what events could be considered potentially disruptive and thus relegated to free speech zones.
Although not addressing "free speech zones" per se, the Supreme Court has likewise expressly invalidated time, place, and manner restrictions that empowered decison-makers with "such broad discretion" that it effectively permits them "to act as a censor." Cox v. Louisiana, 379 U.S. 536, 558 (1965). Such unfettered discretion is precisely what is at issue here. As an alumnus of SMU, I can personally testify that the Hughes-Trigg Student Center is employed by all manner of student organizations, including political and ethnic student organizations. Local campus political events (e.g., student government candidate debates) have been held there in the past. Debates and speeches related to contentious national political topics have been held there in the past as well. I was actively involved in student government and possessed a general awareness of campus happenings during my tenure there as a student. I practically resided in the student center. To my knowledge, no organization-sponsored event in the student center was ever forbidden from taking place there or suspended in mid-event.
In short, the Hughes-Trigg Student Center is, by university custom and practice, the quintessential public forum for students. And the unconstitutionality of SMU's decision flows, in part, from this status. As the Supreme Court has observed, the reasonableness of time, place, and manner restrictions depends on "[t]he nature of a place, 'the pattern of its normal activities.'" Grayned v. City of Rockford, 408 U.S. 104, 116 (1972) (quoting Wright, The Constitution on the Campus, 22 Vand. L. Rev. 1027, 1042 (1969)). "The crucial question," the Court wrote, "is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." Id. Given the student center's historical and contemporary usage, no one can legitimately maintain that the mock bake sale was inappropriate to its time and location.
In short, none of SMU's purported rationales pass constitutional muster. If the university truly cares about free speech rights, as Vice President for Student Affairs Jim Caswell insists that it does, then it must apologize for its egregious conduct and cease from trampling students' First Amendment freedoms in the future. Interested parties should encourage Vice President Caswell to do so before the national media exposure and condemnation from prominent First Amendment scholars affects the university's reputation.
The actual numbers are available for the rate at which the Supreme Court "slapped down" the lower courts in the last Term. The average reversal rate was 74%. The rate for the Ninth Circuit was 75% (same as the Sixth); four circuits had 100% reversal rates (Second, Fourth, Fifth & Tenth); and state supreme courts were reversed 81% of the time. In Desert Palace, Inc. v. Costa, 123 S. Ct. 2148 (2003), the Ninth Circuit was affirmed unanimously on an employment law issue where four other circuits had gone the other way.
Judge Hawkins's defense echoes similar remarks made by Professor Erwin Chermerinsky in the Washington Post.
One can only assume that Judge Hawkins's statistics reference the reversal rate for each circuit as a function of the cases that went to the Supreme Court solely from the Circuit in question. In other words, these reversal rates do not account for the raw numbers. Why is this important? Well, because if the Supreme Court takes ten cases from Circuit "A" and reverses seven of them and only one case from Circuit "B" and reverses it, the respective reversal rates would be 70% and 100% respectively. But the comparison of these reversal rates really does not tell us much, does it?
No doubt, such simplistic comparisons also fail to account for numerous other variables that an observer might want to take stock of in comparing the circuits (e.g., summary reversals, whether the reversed court's holding was at variance with the caselaw of the other circuits, how divided the High Court was, if it all, in reversing, etc.). Accordingly, I am not certain that flat statistical comparisons are likely to tell us what we want to know when we compare the circuits. At the very least, one has to concede that comparative rates of reversal do not tell the whole story.
But to the extent that one might rely on such statistics, I do not believe that Judge Hawkin's numbers reflect the reality of the situation. They certainly do not address the nature of the criticism that is being leveled at the Ninth Circuit. Consider, for example, this editorial in the San Francisco Chronicle co-authored by the public policy director of and an attorney employed by the Criminal Justice Legal Foundation. In it, the authors write:
Of 72 cases decided by the U.S. Supreme Court in the 2002-03 term, 28 of them were criminal cases or directly related to issues of criminal law. Ten of these 28 were from the Ninth Circuit and all 10 were reversed. That means the Supreme Court reversed the Ninth Circuit 100 percent of the time when considering criminal cases. The Supreme Court had to expend more than one third of its attention in criminal law just curing judicial defects from the Ninth. Two of these cases were reversed summarily, meaning the decisions were so obviously wrong that the high court did not even need to hear oral argument.By comparison, the Supreme Court took 10 criminal cases from the remaining 10 U.S. circuit courts of appeal and reversed nine of them. From state courts, the Supreme Court took eight criminal cases, reversing five. While these reversal rates are nearly as high, bear in mind that the cases came from the rest of the nation. The Ninth Circuit contributes as much trouble as all the other circuits—and more than all the states combined.
* * * While other circuits have had cases reversed, none have even come close to the magnitude of 10 for 10. The Supreme Court took no criminal cases from the First, Third, Tenth or Eleventh circuits. The court took only one criminal case from each of the Fourth, Seventh and Eighth circuits and two criminal cases each from the Second, Fifth and Sixth circuits. Evidently, all the other circuit courts of appeals are deciding criminal cases with legal consistency. It is the Ninth that is so frequently rewriting criminal law that the Supreme Court must step in and correct the problems.
Even in defending the Ninth Circuit from the reversal rap, Professor Vikram Amar had to concede that the numbers look bad:
More important, the 9th Circuit also tends to be reversed unanimously. In one year alone (1996-97), the Supreme Court disagreed with the 9th Circuit 9 to 0 in at least 16 cases. (The Supreme Court's entire yearly docket is under 100 cases.) In the fall of 2002, it repudiated the 9th Circuit unanimously in three summary reversals in a single day—an unprecedented slap.All these 9-0 reversals mean that 9th Circuit opinions are failing to attract support from either conservative Antonin Scalia-types on the Supreme Court or its more liberal John Paul Stevens-types. How can such a high and decisive reversal rate be explained? . . .
Amar has been quoted to the same effect elsewhere. Likewise, in 2001, Professor John Eastman also noted the frequency with which the Ninth Circuit was being unanimously or nearly unanimously reversed by the Supreme Court.
Again, as I indicated above, I am not certain how much statistics can tell us in this matter. And even if we could agree on the numbers, I am not certain that we would necessarily explain them in the same fashion. That is, knowing the relevant numbers is not the same thing as knowing why the numbers are what they are. But I do know that Judge Hawkins's argument doesn't support the desired conclusion. Nor is it likely to placate the Ninth Circuit's detractors. Indeed, the ease with which Judge Hawkins's argument may be overcome will only encourage the critics.
Update I:
Howard Bashman continues to post reader feedback on this topic. Among the more interesting ones is an e-mail from someone at the University of Oregon Law School, who helpfully provides a link to statistics that confirm the importance of looking at the raw numbers in order to understand the complaints lodged against the Ninth Circuit.
Update II:
There are already two very nice comments to this post that help demonstrate the limits of the sort of statistics that are bandied about regarding the Ninth Circuit. Lest I be misunderstood, allow me to clarify the nature of my original post. I'm not maintaining that the critics of the Ninth Circuit's record are correct. What I am contending is that (a) Judge Hawkins's defense of the Ninth Circuit does not hold water, and (b) the statistical criticism of the circuit is more sophisticated than the judge's defense implies. Although I do not intend disrespect toward Judge Hawkins, his argument is not respectable inasmuch as it fails to understand or address the critics' contentions.
That having been said, my post and the two existing comments also provide ample reason for questioning the validity of the statistics cited by the Ninth Circuit's critics. Although their statistics are intriguing, it is obvious that they provide an incomplete picture. The real question is, "How incomplete?"
Some time ago, I got into fisticuffs with Stuart Buck over the meaning (or meaninglessness, as I saw it) of certain sentencing-related statistics. The lesson that I took away from that exchange is that it is very difficult to marshal a statistical case for a proposition, because the statistics involved are seldom as complex as the issues that they attempt to address. People cite numbers as a way of asserting that their arguments are mathematically provable and beyond dispute. Unfortunately, all too often these people mistake matters of differential calculus for simple arithmetic.
He is so known for his lawsuits that his critics point out that Klayman has even sued his mother. Klayman said the suit was to settle a family monetary dispute. He said his mother suffers from Alzheimer's disease and is a "innocent victim'' in the family fight."I love my mother,'' he added.
* * * Klayman said he supports President George Bush and Cheney and voted for them, although he has since sued Cheney twice.
Klayman's explanation of his lawsuit against his mother does not quite gel with a contemporaneous account penned by Slate's Jacob Weisberg. Discussing a fax circulated by Klayman, Weisberg writes:
The unhinged prose that followed responded to an item filed by Newsweek reporter Daniel Klaidman. Klayman did not dispute the fact that he is suing his mother, Shirley Feinberg. He claims his mom won't pay him back $50,000 he spent on private nurses for her mother, his grandmother, Yetta Goldberg, who died last August at 89. He did not want this suit to become public, but the Clintonites, he asserted, learned about it and leaked word to Newsweek. . . .
It turned out that Klayman's own brother had gone to the press with the story rather than Clintonites. Weisberg reported that Klayman had brought the suit in the name of a collection agency that he owned rather than filing in his own name.
The AP and others should be careful what they report, however. Klayman has sued more than one journalist whose reporting was perceived (by Klayman) to be defamatory or as portraying Klayman in a false light. The Judicial Watch website provides the text of complaints against David Segal of The Washington Post and Harvey Berkman of The National Law Journal. Klayman also complained of FOX News Channel's coverage of the suits, stating that "it is clear that Fox News is now on the run and is heading 'establishment mainstream left.'"
The Court of Appeals for the District of Columbia affirmed the dismissal of the suit against Segal for failure to state a claim upon which relief may be granted. Klayman v. Segal, 783 A.2d 607, 614-19 (D.C. 2001). Interestingly, the Judicial Watch site does not appear to inform readers of this result; nor does it appear to inform readers of the outcome of the suit against Berkman. The Berkman suit does not appear to be available on Westlaw.
According to Salon, Klayman has fared far worse in court. Jonathan Broder has reported that:
. . . According to the Washington Post, Klayman was cited in a 1989 case for filing a "frivolous" motion and ordered to pay his opponent's legal fees. The sanctions were later dropped after a settlement was reached.In a 1992 case, the Washington Post reported, a federal judge in California ordered Klayman to pay some of his opponent's legal fees and took the unusual step of permanently banning Klayman from his courtroom. The Post quoted Klayman, who is Jewish, as saying the judge was anti-Semitic. But the paper also noted that an appeals court struck down Klayman's appeal, ruling he had "taken considerable liberties with the record and mischaracterized statements therein."
The Post also reported that in 1996, a federal judge in New York fined Klayman $25,000 "for making unsubstantiated claims." The sanction was overturned on appeal, but according to the Post, the court severely criticized Klayman for "inaccurate characterizations for the record and comments that we consider entirely inappropriate."
Broder also relays the fact that Klayman suggested that former Commerce Secretary Ron Brown's untimely death may have been less than accidental:
Klayman, a regular guest on television news and talk shows like CNN's "Crossfire" and MSNBC's "Internight," also propounds the theory that Brown, who died in a plane crash in Bosnia in April 1996, may have been murdered because of his alleged knowledge of Clinton campaign finance scandals.
This claim is borne out by Judicial Watch's website. Weisberg's aforementioned article quotes Klayman as once suggesting that "the killer was 'perhaps the president himself.'" Klayman has likewise evinced doubts that Vince Foster's death was a suicide.
Some stories really do not need any commentary, do they?
Killed were Julia Quezada, 3; John Esthefan Rubio, 1; and 2-month-old Mary Jane Rubio.Both [father John] Rubio and [Angela] Camacho, the mother of the children, have pleaded innocent to capital murder charges. Prosecutors said they plan to seek the death penalty.
All three children were stabbed and suffocated; one also had more than 20 stab wounds, and another had broken ribs and vertebrae, autopsy reports showed.
Police said the couple told them they killed the children because they were destitute and because Camacho thought the children were possessed.
* * * Rubio's lawyer, Nat Perez, has said his client is insane.
You don't say.
I'm not sure that Mr. Perez's argument will make much headway. Obtaining a verdict of not guilty by reason of insanity is a very difficult task in Texas. Not long ago, a Texas jury rejected a claim of insanity in another child-murder case that garnered far more national attention.
The difficulty in mounting such a defense may stem as much from social mores as from the law itself. We Texans have a reputation for stern justice. Besides, everyone in the American Southwest knows that concerned parents do not kill their children; they cage them.
As a lawyer, I can, of course, intellectually distinguish between insanity as a legal standard and our everyday assessments of sanity outside of the courtroom. But it is nonetheless difficult to understand the crimes referenced above without recourse to insanity. I am a firm believer in good and evil, and I think that many criminals may be accurately defined as the latter. But in these particular cases, "evil," as a concept, seems to be lacking in explanatory power. Reprehensible as evil motives might be, I can grasp them. But these cases seem unfathomable.
Am I the only one who is struck by what little coverage Afghanistan receives in the American media? Or have I just been missing stories that were there all along? It seems to me that Afghanistan has largely been eclipsed by Iraq. The administration does appear to have earmarked funds for continuing military operations and reconstruction efforts in Afghanistan; however, it also seems clear that these funds are (a) dwarfed by those that will be spent in Iraq and (b) regarded as insufficient in both cases. Although I have generally looked upon both military campaigns favorably, it is beginning to look as if we have bitten off more than we are willing to chew.
In 1995, Congress passed the Solomon amendment, named for its sponsor, Representative Gerald B. H. Solomon of New York, barring disbursement of money from the Departments of Defense, Transportation, Health and Human Services, Education and some other federal agencies to any college or university that obstructed campus recruiting by the military.The suit filed yesterday argues that the Solomon amendment violates law schools' First Amendment rights to academic freedom.
Interestingly, the schools have avoided being name plaintiffs in their own right. Instead, the suit has been filed by organizational plaintiffs, like the Society of American Law Teachers. Boston College Law School Professor Kent Greenfield is reported as claiming that none of the schools in question would join the suit in their own name for fear of retaliation.
I am chagrined by this development. Reasonable people may disagree about the merits of the military's position on homosexuals. As a policy, "Don't Ask, Don't Tell, Don't Harass" pleases no one, not the proponents of the former ban on service by gays and not those who desire that there be no such policy regarding gays. However, it is not clear to me why law schools would seek to forbid a potential governmental employer from campus. Indeed, from an employment perspective, this action seems to be an outright disservice to the students involved. Presumably, these grown adults are capable of making their own political and moral judgments about the military's policy on gays and will interview or not accordingly.
The notion that this lawsuit is just so much political activism is reinforced by the involvment of plaintiffs like the Society of American Law Teachers. Notwithstanding its innocuous moniker, a quick perusal of SALT's website readily reveals that it has an ideological axe to grind. It proclaims itself, for example, "committed to ensuring that legal education and the legal profession engage the task of promoting social justice." Social justice, of course, generally encompasses any number of leftist socio-political causes. Not surprisingly then, SALT opposes everything from Proposition 209 to conservative welfare reform, all in the name of civil rights:
While we commit ourselves to the long-term, formidable task of combating racism, we also acknowledge the connections among all forms of oppression that exclude us from equal citizenship. Moreover, attacks on affirmative action, immigration, welfare, and gay and lesbian equality must be understood as interrelated, mean-spirited policies of exclusion. Therefore, each struggle against Prop 209, Prop 187, the “Welfare-to-Work” law, or the Defense of Marriage Act must be seen as part of a larger movement for social transformation and justice.
SALT also marched in the Washington, D.C. peace rally organized by ANSWER in opposition to the war in Iraq. ANSWER is, of course, a front for the Workers World Party, which, among other things, is an apologist for the Tienanmen Square Massacre and Kim Jong Il's regime. No doubt, members of SALT would think it terribly unfair to be tarred in this manner with guilt by association. Ironically, however, it is guilt by association that serves as the organization's rationale for opposing military recruiting on campus:
. . .[W]e believe . . . that law schools should not themselves be complicit in the discriminatory actions of the military or any other employers.
Presumably then, SALT would oppose the presence of any potential employer who disagreed with its policy positions, as it feels that all of its policies are interrelated and targeted toward combatting racism and discrimination. What I think SALT fails to appreciate is that it is addressing contentious, divisive issues that reasonable folks may disagree about. Indeed, it would seem to me that SALT is generally arguing a minority position, given that Propositions 187 and 209, DOMA, and "Don't Ask, Don't Tell, Don't Harass" were all enacted within the framework of democratically elected governments.
The democratic nature of these acts does not ipso facto render them constitutionally valid or wise as a matter of policy by any means. And SALT is well within its rights to oppose each and every one of them. What I fail to grasp is why SALT thinks that it effectively should be making such decisions for law students.
"The acceptance of evolution is responsible for the degeneration of morals in society," said gospel preacher Mac Deaver. "People are shooting at each other on the highway. Kids are being taught that they came from dirt. There is no accountability; they say, 'I'm just a product of evolutionary theory. Evolution made me what I am, can't help it.'"
The emphasis is mine. I have been unable to locate the exact source of these comments, but this Houston Chronicle story reports Deaver making similar statements.
As an earnest Christian, I almost fell out of my chair laughing when I saw Mac Deaver's statement. Do you suppose Deaver has ever read the Bible that he is thumping?
And the Lord God formed Adam out of the soil of the earth, and breathed into his nostrils the breath of life; and man became a living being.
Genesis 2:7.
So what changed my mind anyway? Well, my mind has not changed. I am inclined to think that the flaws and costs of comments, particularly on high-traffic blogs, greatly outweigh the benefits. Even proponents of the virtues of comments have to admit that the value of comments is debatable. Arnold Kling has acknowledged as much, writing that:
I like receiving feedback on my TCS essays, and I like making comments and giving feedback on other web logs and essays. To me, this is one of the best features of the Internet—it provides a much more open forum than broadcast media.I must admit, however, that the noise to signal ratio can be quite high in the "comments" or "feedback" sections of web sites.
Kling then goes on to note the predilection for ad hominem attacks in comments sections and suggests a solution. The problem with Kling's solution—self restraint on the part of commentors—is that it depends on a quality (i.e., good will) that the parties in question clearly lack.
For this reason, I think that Baude's request deserves consideration. There are also some unstated premises that are worth exploring in this debate. For example, Baude conceives of blogging as journalism by other means, and thinks that the blogosphere would be better served by discretionary publication of letters-to-the-editor a la Andrew Sullivan's feedback section.
At any rate, the fate of comments on this blog remains uncertain. Thus far, I am not displeased with their presence. The comments here have been rather benign to date. Perhaps, this is a function of the limited traffic and readership that a boutique blawg like mine enjoys. Or maybe I am just enjoying a brief honeymoon period.
Perhaps, the real distinction is between blawgs and blogs in general? Although I stray from the blawgosphere and into the blogosphere on occasion, most of my interaction is with the former. Could it be that lawyers by training are more readily given to argumentation designed to persuade rather than excoriation? Has anyone engaged in any sort of comparison between blawgs and, say, their political-oriented counterparts, for example?
This is all very much "inside baseball," of course. But any interested parties are welcome to, ahem, comment.I am utterly unconcerned with having any sort of personal life outside of the office. I would work 100 hours a week, 52 weeks a year if required. I do not feel that collecting fees for 3000 hours of work (not merely "billing" but "collecting") my first year would be unrealistic, so long as the work is available. . . . I will work nights, weekends, holidays, vacations, whatever. If my mother's funeral was the day of a key deposition, I would do the eulogy via teleconference after the deposition. If my wedding was on the date of a key trial, the wedding would be postponed. If the wife to be did not like it, I would inform her that work comes before EVERYTHING ELSE and that if she does not like this, she is free to find a competing husband. Please understand that if I do not see the light of day (arrive at work before the sun comes out, go home after it is pitch dark) for the next 30 years, if I have to eat all meals in the office or even sleep in the office, I would accept that opportunity eagerly, with open arms and with a big smile on my face.
And said applicant is willing to do all this for a starting base salary of $75,000 no less.
Some have found the resume to be clever. Others are less impressed. But the most interesting reaction is Kevin Heller's, who in discussing the resume writes:
I would provide a link to the resume but since its pdf I can't erase his name and I think it's bad enough that all these big firms are so lax as to breach the confidentiality of the resumes they receive as to allow it to be circulated in the first place.In fact, the cover letter is addressed to Wolff & Samson, PC so I think we can start allaying blame for such a breach there.
Is this a breach of confidentiality? Are resumes delivered in pursuit of employment otherwise confidential? If so, are potential employers' duties legal or ethical in nature? Or is this a matter of etiquette?
. . . How would she [an image consultant] describe interview clothes? "Like being out on a date . . . going to church." But Catholic priests should avoid wearing the beanies and sailor suits that this might imply. If the pockets are sewn up so it seems like you can't open them, don't open them. "Suits without pockets are more formal; but if you already have a suit that has pockets, don't worry, you don't need to remove them." That was the first time I couldn't stop laughing. "Your jacket should definitely have armholes." That was the second. "Single-breasted versus double-breasted is especially an issue for some women." That, childishly enough, was the third. "Don't wear clothes that make you look like an alien." "Women have more choices than men as far as zippers." They can be open, or closed, depending on the message you want to send.
The quoted language is represented to be the literal advice given. At $29,500 in tuition per year, Harvard Law School students are really getting their money's worth.
(Link via JD2B.)
In legal writing (but seemingly nowhere else), one often finds the curious assertion that somebody was "hoist by his own petard."If you're not sure what that means, read this.
It will be amusing now to watch some elements of the right try desparately to extricate themselves from the equal protection web the Supreme Court spun for them in Bush v. Gore.
I'm finding it hard not to snicker.
The problem with this train of thought is that, stoked with too much coal, it runs right off the rails. It assumes without argument that the situation in California in 2003 is reminiscent of Florida in 2000. I think not for reasons that Professor Vikram Amar ably elaborates in a Findlaw column today.
Amar makes two critical points. First, no one truly knows what Bush v. Gore means at present:
For starters, it's important to realize that Bush v. Gore is itself a hard decision to understand. Even defenders of the Supreme Court's 2000 action would have to admit that the Court's opinion, due to the tremendous time pressure under which it was written or for other reasons entirely, was no model of judicial clarity or craftsmanship.
Arguments are there to be made regarding the case's meaning and its proper application. Bush v. Gore has certainly been the subject of lively debate in legal academia. But there is little that is straightforward about the decision. One cannot simply invoke the case's style, proclaim Q.E.D., and then snicker.
Secondly, Amar accurately points out that the factual scenario presented by the California recall is starkly different in multiple respects.
One is that the errors in counting votes in Florida were being made by people, not machines. Why might that matter? Because people who count votes by hand may make mistakes in counting the votes not just because they may be defective counters, but also because they may be politically motivated.It is hard to completely understand Bush v. Gore without appreciating the concern shared by many people in the country that Democratic and Republican county elections officials might try to take advantage of the unfettered discretion state law gave them to hand count votes to get to a particular result. Machine mistakes, even ones that are predictably skewed in favor of or against particular groups or parties, may be different than mistakes made by individual persons who are motivated to make those mistakes on purpose.
* * * Nor is it just that the votes in Florida were being hand-counted (as opposed to machine-counted in California). They were being recounted in Florida. That is crucial, because by the time of a recount—when the Supreme Court stepped in allegedly to promote fairness—we all knew that every miscounted vote (whether miscounted by design or by negligence) was a big deal, because we all knew the margin of victory was going to be a few hundred votes one way or another.
So the problem was not just manipulable standards that various counties were using; it was that manipulators knew exactly how many votes they needed to steal to tip the balance.
Amar also tellingly notes that the Ninth Circuit's decision in Southwestern Voter Registration Educ. Project v. Shelley turns Bush v. Gore on its head in one key respect: the legal remedy granted.
According to the Ninth Circuit, extending that 180-day outer limit to 225 or so days (the time from the July certification until the March election, the earliest time punch card machines could be replaced) is no big deal, because the choice between 180 and 225 days is "arbitrary."* * * But what is not arbitrary is the value of sticking to a pre-agreed upon schedule, around which everyone has arranged their financial and emotional commitments. . . .
Indeed, both the Court and Chief Justice Rehnquist in his concurrence joined by Justices Scalia and Thomas stressed compliance with predetermined electoral timelines in Bush v. Gore. 531 U.S. 98, 111 (2000); id. at 116-22 (Rehnquist, C.J., concurring). In contrast, the Ninth Circuit's decision discards a prearranged electoral schedule.
In short, there is nothing self-evidently right about the Ninth Circuit's application of Bush v. Gore in the California recall case. Others, like Professor Brett Marston, for example, have conceded as much, noting that:
[The Ninth Circuit] is only extending the equal protection arguments that the per curiam decision pushed in Bush v. Gore . . . (emphasis added).
Yet Professor Marston offers no explanation as to why Bush v. Gore ought to be extended on these facts and instead condemns conservatives who disagree for being results-oriented:
The lesson, I think, is that conservatives try to claim the moral high ground with respect to constitutional principle, but when it comes to defending a decision whose results they like (Bush v. Gore), or attacking a decision the results of which they don't like (Southwest Voter), principle goes out the window. The main thrust of conservative commentary is nothing more exalted than decrying judicial tyranny when courts hand down decisions that they don't like.
The difficulty with this legal realist response to these decisions is that it is self-defeating. Marston's analysis evinces skepticism regarding the Court's decision in Bush v. Gore as an original matter. But legal realism is a two-way street. Assuming the truth of Martson's conclusion for the sake of argument, why should I not just assume that his and Professor Muller's views of Bush v. Gore and Southwestern Voter are not likewise political positions rather than legal ones? Legal realism is corrosive in this manner.
Here’s an idea, suggested to me by a government lawyer, for how Congress can help reign in activist judges: The next time the judicial appropriations bill come around, don’t include any money for law clerks. The activist approach to judging is much more reliant on and influenced by twentysomething students fresh out of the academy than the interpretivist approach, for which the judge’s main job is simply to read the Constitution or statute and see if something is in there or not.(Link via Howard Bashman.)
As a graduate of Yale Law School and a former law clerk (in 1981-82 for Judge Malcolm R. Wilkey of the D.C. Circuit), Clegg ought to know better than to circulate such pablum. Yet in Clegg's fevered imagination, law clerks are apparently the equivalent of Grima Wormtongue.
Clegg is not the only one to suggest as much. As detailed by Professor David M. O'Brien, Professor Edward Lazarus has made similar assertions regarding the baleful influence of judicial clerks:
Lazarus’s most stinging charges center on the Court’s conduct of its business. Portraying the Court as "clerk driven" and composed of "editor Justices," Lazarus asserts that the justices read virtually none of the petitions arriving at the Court and that "most of the text of most Court opinions—the key words and phrases that make up the crux of a ruling—has been chosen and crafted by clerks." Pause here and elsewhere should be given, though, for the clerks do not write on entirely clean slates and their drafts must pass muster with the justices. So too, Lazarus blasts the justices for opinions that are "fundamentally dishonest, either by design or through gross negligence." That’s rather ironic, since a main contention throughout is that clerks carry the burden of opinion writing.
Interestingly, Lazarus is also a Yale Law School graduate and a former Supreme Court law clerk (in 1988-89 for Justice Blackmun). Other notable former Supreme Court clerks have made similar allegations in the past. See, e.g., Kenneth W. Starr, Supreme Court Needs a Management Revolt, Wall Street Journal, Oct. 13, 1993, at A23; Kenneth W. Starr, Trivial Pusuits at the Supreme Court, Wall Street Journal, Oct. 16, 1993, at A17; William H. Rehnquist, Who Writes Decisions of the Supreme Court?, U.S. News & World Report, Dec. 13, 1957, at 74-75. More recently, attorney William Dyer, himself a former clerk (in 1980-81 for Judge Carolyn Dineen King of the Fifth Circuit), attributed the Ninth Circuit's recall-related decision to "a very smart, very liberal, very out-of-touch-with-reality law clerk who's just joined the staff of one of these judges after a law school education that included law review service (and possibly editorship)."
The problem with such assertions is that they run counter to common sense. Ask yourself, is it really likely that newly-minted lawyers exert tremendous influence over federal judges who generally have two decades of legal experience prior to ascending to the bench? Or is the influence more likely to run the in the opposite direction?
A judicial clerk often fulfills any number o