Oppositioning Verbizing

I generally don't like the transformation of verbs into nouns, especially when a verb with the same meaning already exists.

In the past, my (least) favorite example of this trend--probably because it's used so frequently in economics and law--is the word "incentivize," meaning "to establish incentives for." It's an ugly word, and moreover, "encourage" means the same thing. (Similarly, "discourage" obviates the need for the even uglier "disincentivize.")

There's a more recent example that I find just as annoying: "friend," meaning, inter alia, "to become Facebook friends with." We already have the perfectly good verb, "befriend," which conveys the same meaning. "Friend" is almost always coupled with an explicit reference to Facebook (e.g., "I saw her at a party on Wednesday, and then I friended her on Facebook the next day"). Thus, it's unlikely that using "befriend" instead would lead the listener to believe that the speaker actually became friends (of the non-Facebook variety) with someone.

Thoughts?

Disputing tastes?

Seventh Circuit Court of Appeals Judge Richard Posner was at NYU on Monday to discuss his new book on preventing terrorism.

The book makes three interesting and generally well received points:

1. We have to understand probabilities if we are going to fight terrorism effectively. The Bush Administration's "One-Percent Doctrine"--which holds that if the probability of a particular terrorist threat is at least 1%, we must act to prevent it--is silly according to cost-benefit analysis. A .5% chance of a nuclear weapon hitting Manhattan within the next 10 years is significantly more serious (and thus should engender serious preventive measures) than a 2% chance of a subway bomb in the same time period.

2. Organizational theory can tell us a lot about the structure of our counterterrorism agencies. Posner offered two examples. First, the Director of National Intelligence is responsible not only for heading the 16-member intelligence community (a full-time job requiring the herding of cabinet-level cats), but also for advising the President on national security issues. It's just too much for one person to do.

More importantly, Posner points out the need for a domestic intelligence agency separate from the police force (i.e., the FBI). The FBI's incentives diverge from the nation's, he argues, because the FBI (and individual FBI agents) wants to show objective successes--namely, arrests and convictions. There's nothing wrong with this, except that it systematically results in premature arrests. In some cases, we would be better off waiting and watching suspected terrorists to learn the full extent of their network. Thus, Posner concludes, we should have an independent domestic intelligence agency, with a single official above both it and the FBI who makes decisions about when to arrest potential terrorists and when to let their plans proceed further. An entirely reasonable proposal, I think, and one that almost every other Western nation has adopted.

3. We can't be overly restricted by legalisms when formulating our counterterrorism strategies. Most of the "constitutional law" cited by civil libertarians opposing responses to terrorism are just judicially created doctrines. Moreover, the Constitution is not a suicide pact.

In connection with this third point, Posner argued that the value most people place on privacy is irrational for two reasons. First of all, under current constitutional doctrine, most of the things people treat as "private"--e-mail, internet browsing history, and the like--are not really private. Once they're stored on someone else's server, you've lost your privacy. If people are so cavalier in these areas, why are they so paranoid about domestic wiretapping?

Posner's second argument is the one I find more interesting. He argues that the only logical reason to desire privacy is to control what others know about us and thereby manipulate how others treat us. On this rationale, terrorists and others engaged in illegal activity have significantly more to gain from privacy than the average citizen. Thus, if the average citizen were being rational, she would value privacy much less than polls suggest she does.

My question is this: Does Posner's argument violate what is to him the nearly inviolable principle of de gustibus non est disputandum?

The DOJ Shuffle

In response to a request for my thoughts on "Attorneygate":

Last December, the Bush administration fired 8 United States Attorneys (USAs), at least 6 of whom had recently received very high job performance ratings. Four of the dismissed USAs had investigated or prosecuted Republicans, 2 had failed to prosecute Democrats in some questionable cases, and 1 had not prosecuted obscenity cases or sought the death penalty in several cases. Outrageous, right? Well . . .

Observation #1: These firings very likely did not violate the law. USAs "serve at the pleasure of the president." The president can ask for the resignation of any executive branch officer at any time, and a 2006 amendment to the USA PATRIOT Act provides that the Attorney General can appoint replacement USAs to serve indefinitely (i.e. until the president submits a replacement candidate to the Senate).

You could claim that the executive is failing his constitutional duty to "take care that the laws be faithfully executed," but this clause is as good as dead as far as judicial enforcement goes.

Observation #2: It looks like the administration used a lot of underhanded tactics. When you fire USAs who prosecute Republicans and fail to prosecute Democrats, it sends a message to future USAs who would like to retain their jobs. Moreover, the administration tried to keep the news hushed, and when the news broke, it claimed that the USAs were fired for performance-based reasons. Sound fishy? Of course, but let's not pretend that the Democrats wouldn't use similar tactics if they had the power to do so.

Observation #3: We lack the resources to prosecute every crime, so we have to make choices about which crimes we will prosecute. Do you want to make those choices randomly? Me neither. I am happy that the NYPD does not prosecute me (and the other 8 million New Yorkers) every time I (we) jaywalk. It is a fairly insignificant crime that harms very few people. Similarly, I was happy that violations of the anti-sodomy law in Bowers v. Hardwick and violations of the 1925 Arkansas law prohibiting the teaching of evolution in public schools (declared unconstitutional in Epperson v. Arkansas) were seldom prosecuted. And I was happy that in the town where I grew up, prosecution of laws prohibiting underage drinking was spotty at best. Vigorous prosecution of these laws in their respective jurisdictions lacked popular support. It doesn't seem at all problematic to decide how vigorously to enforce certain laws based on available resources and policy considerations.

Moreover, if conclusive evidence surfaced indicating that certain USAs were intentionally prosecuting Democrats but not Republicans, the Fourteenth Amendment's Equal Protection Clause (EPC) would likely exculpate the prosecuted Democrats.

Hence, in the abstract, it doesn't seem that what the administration did is all that objectionable.

Observation #4: Those concessions aside, there is an enormous evidentiary problem in bringing an equal protection challenge to disparate prosecutions. It's really hard to prove that a USA is prosecuting more Democrats than Republicans. There are sample-size problems (very few USAs serve for more than 8 years), and there are many differences among cases, making it easy for a USA to claim that she prosecuted one individual for a permissible reason (i.e. not political affiliation) that wasn't present in another case.

Even if you could fix this evidentiary problem, you still have to deal with Washington v. Davis, which says that the Equal Protection Clause doesn't invalidate government actions solely because they have a disparate impact. The EPC requires a showing of intentional discrimination. In other words, even if a Democrat accused of jaywalking could demonstrate that the USA involved had prosecuted 100 Democrats for jaywalking and 0 Republicans, the Equal Protection Clause wouldn't automatically invalidate the prosecution of the Democrat (I say "automatically" because it's possible that a jury would infer intentional discrimination from this extremely disparate impact.).

So what's the solution?

I think the political mechanism worked pretty well in response to this incident. Once the facts surfaced (and they are still surfacing), there was considerable public outrage at the tactics the administration used.

The problem with exclusive reliance on the democratic process is that a more adept administration will avoid firing 8 USAs at once. Perhaps if the firings were spread out a bit more, public outrage would have been less intense.

I like Rick Pildes's proposal to give subpoena power to the minority power in Congress. That way, if a USA is fired for fishy-sounding reasons, some part of Congress will have both the power and the incentive to investigate.

On a side note, I think far too much legal scholarship focuses on the legislature and the judiciary. Sure, the things that Congress and the courts say and do are important, but I think in terms of practical effect, they are a drop in the bucket compared to what prosecutors and administrative agencies do.

Is Law "Just Politics"?

For the first century of U.S. history, the dominant mode of legal thought was Legal Formalism. Personified by nineteenth century Harvard Law School dean Christopher Columbus Langdell, Legal Formalism maintains that legal reasoning is categorically distinct from other kinds of reasoning (like moral reasoning or political reasoning). The major premise of the syllogism comes from positive law (for example, a statute, the Constitution, or the common law), and when this major premise is applied to the facts of the case at hand, it compels a single logical result.

In the late 1800s and early 1900s, a new school of legal thought arrived on the scene to challenge Formalism. Legal Realism, whose most famous proponent (at least in the early years) was Justice Oliver Wendell Holmes, Jr., holds that legal reasoning isn't any different from any other kind of reasoning. The decision of which major premise should be applied to the facts of the case, on this view, is not at all uncontroversial or foreordained; thus, judges make substantial policy determinations when they decide cases. The best predictor of what the law is, the old Realist adage goes, is what the judge ate for breakfast. On this view, law is "just politics."

These two views have battled for preeminence in the legal world over the last century. After Holmes, Legal Formalism was revitalized in the form of the Legal Process school of thought, championed by Harvard Law School professors Henry Hart, Albert Sacks, and Herbert Wechsler, among others. Then in the 1970s, Realism returned with a vengeance under the name of Critical Legal Studies, which highlighted the ways in which law subjugated certain groups in society under the guise of neutrality. Today, in echoes of economic theory, the consensus is that "we're all Realists now." But Formalism is coming back into vogue in some circles.

(Disclaimer: I place myself squarely within the Realist camp.) So who gets the better of this debate? Is law really "just politics"?

The Formalists are right, I think, to point out that the nature of the judicial role limits what judges can do. Judges can decide only the case before them (appellate courts can affirm, vacate and/or remand, or reverse), and they have little enforcement power, so they can't stray very far from public opinion for very long.

But the fact that some options are off the table when it comes to judicial decisionmaking does not mean that law is categorically different from politics. I think the debate ultimately boils down to how you define "politics." If politics means reaching any specific result one wants at a high level of particularity (e.g., picking the individuals who should win in every future case), then law is probably different from politics. But if politics includes preferences at a higher level of generality (e.g., picking who should decide the individuals who should win in future cases), then I think law is no different from politics.

What do you think?

W

The law firm I'm working at this summer had a "pre-summer retreat" this weekend. All of the law students who will be working at the firm (including those who go to school and live in New York!) stayed at a hotel in midtown Manhattan for a few days. Here's the evidence that the hotel was too posh for me:

--When I opened the door to my room, I was greeted by trance-like music from the TV with kaleidoscopic images synced to the music. The title of the CD from which the music came? "The Warmth of Cool." Thanks, Derek Zoolander.

--When I got on the elevator, I was joined by a black woman and her teenage daughter. The woman blithely remarked that the hotel takes itself way too seriously. "The party never ends! It's 11am, and the hallways are still dark and the new-age music is still playing in the elevators. And there are no primary colors in my room!"

--The room featured a mirror above the bed and an available "Intimacy Kit."

--There was a button for "Whatever, Whenever" on the room phone's speed dial.

--It took me at least two minutes to figure out how to turn on the water for the bathroom sink.

--The bottle of spring water beside the bed: $8.

The funniest thing that happened to me today

I was doing some holiday shopping today, and as I was walking down Broadway, I was greeted by a friendly guy with a scruffy beard and a "Greenpeace" binder.

"Hey, how you doing today?" he asked, stepping into the stream of pedestrian traffic with me.

"Not too bad," I muttered.

"You care about our environment, don't you?"

I'll play along, I thought. As long as you walk along with me. "Yep."

"Have you heard of Greenpeace?"

"Yep."

"Well, we're concerned about our environment, too. We're worried that if individuals, corporations, and governments don't change the way they live, we'll experience irreversible damaging trends in our environment." I think this "irreversible" argument is interesting, so I ask him to explain what irreversible trends we're facing. "Well, temperatures are going up fast. Did you know that by 2050 temperatures could rise by 10 degrees? And we're already seeing the effects of this global warming. There was Hurricane Katrina, as well as the tsunami in Asia."

Wait. The tsunami? "Wasn't the tsunami caused by an earthquake beneath the ocean?"

"Uhhh . . . no . . . not according to the sources I have."

Race, Schools, and the Liberal Justices

Yesterday, the Supreme Court heard oral argument for a case involving public school districts' use of race in assigning kids to particular schools within districts.

(The difference from the affirmative-action programs at the University of Michigan, if there is a constitutional difference, is that in those cases, race was displacing merit as a criteria for admission. In the program at issue in yesterday's case, merit is not a criteria for admission; hence, race displaces only parental choice, if anything, as a criteria for school assignment.)

A lot of the questions from Justices Souter, Breyer, Ginsburg, Stevens, and Kennedy focused on whether there was any reason to suspect invidious motives when a democratically elected school board decided to use race to get the racial composition in each public school in a district to mirror the racial composition of the district's general population.

The lawyers for the school districts were abysmal, so they had no answers, but Justice Scalia piped up with a hypothetical answer: If the population of both the school district and the school board were mostly black, but the best schools in the district were predominantly white, the school board might couch its selfish desire to get a slice of the best schools in the guise of "promoting racial balance" in schools. But although the lawyers didn't have a ready answer about the racial composition of the school board, this hypothetical doesn't seem to apply to the Seattle and Kentucky school districts.

Scalia and the conservatives think that any race-based classification at all is problematic, and they will vote to strike down the programs at issue. The liberals think benign uses of race can survive strict scrutiny. They believe achieving racially balanced schools is a compelling state interest. The dispositive issue, I think, will be whether the programs are narrowly tailored to that end.

Interestingly, in one of the programs at issue in the case, two predominantly black schools were excluded from the racial composition requirements. I think that fact might be important in the "narrow tailoring" inquiry. If it is, the ironic result will be that if the school districts had used race more aggressively (by making the requirement apply to all schools in the district), the program would have satisfied the "narrow tailoring" inquiry, while a less aggressive use of race fails the test.

Stay tuned . . .

Judicial Independence

Former Supreme Court Justice Sandra Day O'Connor is spending her first post-Court year traveling around the country (including a stop at NYU) speaking about the importance of judicial independence. She's got lots of scary stories about how political actors threaten judges who decide politically charged cases. Her conclusion is that we need to make sure that judges are independent of politics.

I think Justice O'Connor's argument is too simple. It's easy to say that we need judicial independence after a litigant murders a judge's father and husband because she ruled against him. But how independent do we want judges to be? We don't want them choosing their judicial philosophy at random. What's the proper role of politics in vetting the judicial philosophies that make it to the bench?

An Originalist Argument for Substantive Due Process?

Originalists and textualists love to lampoon substantive due process as a contradiction in terms. The literal meaning of the clause seems to require the government to go through certain procedures before it takes your life, liberty, or property. How could the framers have intended this clause to protect certain substantive rights regardless of how much procedure the government gives?

The progressive response usually takes the form of: Some rights are so fundamental to what it means to be human that the majority should never be able to take them from individuals (or at least not unless the deprivation survives strict scrutiny analysis). But maybe there's an originalist response.

The case of Dred Scott v. Sanford reached the Supreme Court in 1857. Dred Scott, his wife, and his two children were slaves whose master, Dr. Emerson, held them north of the 36’-30” line (northern border of Missouri, north of which slavery was illegal under the Missouri Compromise). Emerson returned to Missouri and sold Dred Scott to Sanford.

Dred Scott sued Sanford in federal court to assert his and his family’s freedom. Sanford successfully argued that the court lacked subject-matter jurisdiction over the case because Dred Scott, like all blacks, was not a citizen of Missouri or the US. (The Constitution gives federal courts subject-matter jurisdiction over cases or controversies between "citizens" of different states.) Dred Scott appealed to the Supreme Court.

The Supreme Court said that because Dred Scott (or his ancestors) was imported to the U.S. as a slave, he could not be a "citizen" under the Constitution. The Court could have stopped there and dismissed the case, but it didn't. It also said that (a small provision of) the Missouri Compromise was unconstitutional because Congress could not deprive citizens (like Sanford) of his property (his slaves). Ostensibly, the legislative process provided by Congress before enacting the Missouri Compromise satisfied the Fifth Amendment's Due Process Clause. So the Court was saying that Congress could not deprive citizens of property at all. (This argument sounds a lot like Locke's Second Treatise of Government: people wouldn't enter a social contract in which they gave up life, liberty, or property.) On this reading, Dred Scott contains dicta endorsing the idea of substantive due process.

All this is the background for the ratification of the Fourteenth Amendment eleven years later. The framers of the Fourteenth Amendment chose language almost identical to the language of the Fifth Amendment. Compare

"No person shall be . . . deprived of life, liberty, or property, without
due process of law . . ."

with

"No State shall . . . deprive any person of life, liberty, or property,
without due process of law . . ."

So, if we adopt a maxim of statutory construction that says that similar language should have similar meanings, then it's arguable that the framers of the Fourteenth Amendment intended to ratify the idea of substantive due process present in Dred Scott.

The objection to this argument is that the first sentence of the Fourteenth Amendment ("All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.") overrules Dred Scott. The framers couldn't have embraced a decision at precisely the same time they were overruling it.

My response has to be that the first sentence of the Fourteenth Amendment overrules only a part of the Dred Scott case--the part that holds that blacks can never become citizens. The rest of the opinion stands.

Critical Thinking Is Antagonistic to Success in Law School

General critical thinking, as it's taught at the college level, teaches you to ask a set of questions:

• What are the assumptions in this reasoning?
• What fallacies are present in this argument?
• What ambiguities are there?
• Where is the evidence for that claim? How good is it?
• What alternative perspectives are there?

Questions like these may be valuable to ask, but they aren't the right questions to be asking from the perspective of law professors. A lot of law school, I think, is learning the range of permissible arguments in the profession. Much more valuable in the eyes of law professors are questions that raise immanent criticisms of legal reasoning:

• Does this argument fall prey to the same problem it reacts to?
• Does this reasoning mesh with other fundamental concepts in the law? Can this argument be read as consistent with other closely related rules?
• What's really going on here?
• How would this argument apply to slightly different situations?
• In sum, is this argument internally consistent?

I think the difference in focus is a result of a desire to channel revolutionary forces away from the judicial system and into the democratic process.

Que piensas tu?