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November 14, 2005

 

Only a link

Is this the first non-unanimous opinion the Supreme Court has issued this term?


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October 12, 2005

 

No body to be kicked, no soul to be damned

In the Nation, Morton Mintz argues that the Supreme Court ought to return to the original meaning of the word "person" in the Fourteenth Amendment, and therefore cut back on corporate rights. Kaimi Wenger suggests that Mintz is probably a fair-weather originalist (or should be).

But is it obvious that Mintz is even right on these specific grounds? Compare Bank of the United States v. Deveaux, 9 U.S. 61 (1809) (holding a corporation not to be a citizen under the diversity clause) with Bank of Augusta v. Earle 38 U.S. 519 (1839) (holding a corporation not to be a citizen under the Privileges and Immunities clause) with Louisville, Cincinnati, and Charleston R.R. v. Letson 43 U.S. 497 (1844) (reversing Deveaux) ("A corporation created by a state seems to us to be a person, though an artificial one . . . ."). The point is that at the time that the Fourteenth Amendment was ratified the judicial gloss on words like "person" and "citizen" was rather unclear (one version of that confusion is what led to some part of Dred Scott). But given John Bingham's attitude that when he used terms of art they should be interpreted in agreement with judicial opinions of the time, I would think it to be a quite open question-- as an originalist matter-- whether various 14th amendment rights of persons or citizens pertain to corporations.

In any case those rights clearly are possessed by the owners and employees of the corporation, and almost any action that injures the corporation will probably injure with the owners or employees enough to confer standing, right? So I am not entirely sure what Mintz really means to accomplish here.

UPDATE: I will add that when people rail against the evils of corporations I am almost always confused about whether they have an actual objection to the corporate form or whether they are just using "corporation" as shorthand for profit-making-enterprise-with-lots-of-money.


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August 07, 2005

 

Sir, It's Time for a Field Trip

Just talk a walk down to the Supreme Court on the day of oral arguments for the next major case and see who's sleeping on the sidewalk at 6am.

Washington lawyer Robert Bauer writes in WaPo's Outlook that

Long after Congress opened its chambers to the electronic media, the Supreme Court continues to refuse to allow television, still cameras and tape recorders to record arguments and other proceedings. The justices limit their public appearances and, even more so, media interviews and exchanges. Justice Antonin Scalia has notoriously refused to allow his public speeches to be filmed, photographed or tape recorded, and last year, marshals actually wrestled a recorder away from a reporter at one of his public appearances. The public, meanwhile, is kept at a safe distance from the court: Visitors wishing to see oral arguments are ushered in and out of the court in brief shifts. These behaviors all assume that the Supreme Court as an institution and the justices individually have the right to tell the people only what they choose.

His complaint about access to oral arguments is extraordinarily misleading. [My old site, abutler.blogspot.com, is bloggered and defunct, but I've posted below the fold my unrevised old posts on camping out for Lawrence v. Texas and on oral arguments themselves. Ah, memories.]

Readers of this site are also familiar with Will's penchant for listening to recorded oral arguments. There is free public access to the tape recordings for all terms from 1955 to the immediately preceeding term. For further detail, see the Court's own site.

CAMPING OUT BEFORE THE SUPREME COURT

After all, I spent nearly eleven hours doing that, and only three-quarters of an hour actually watching the case.

I went with my friend Will, whose postings I will not read until I finish with mine on the matter.

12:15am: arrive at the front steps of the Supreme Court. We'd walked from the Metro past the Capitol, deserted except for the same white conversion van and same dark car that kept circling, and two police on footpatrol who walked by us wordless. It's midnight and an orange alert, and my government trusts me to walk through its famous grounds. How cool is that? The front marble steps of the Court were deserted. Are we the only two fool enough to arrive so early? No. A police officer calls up to us to ask us what we're there for, and informs us that the line has already formed on the east side of the building. We walked over, found the line-leaders, who'd been there since 7:45am. I'm the 69th person to arrive for the case, and Will's 70th. It's rare for more than 75 to be admitted (only 75 people in line today received admission tickets from the police). The rules for the line are simple: they do a roll-call on the hour, every hour, counting the sleepers without waking them. If you leave, you must check out and in, and you can't be gone for more than an hour. At 6am, all leaving ends. At about 7am, the Supreme Court police will arrive to direct the line.
All I have with me is a jacket and a backpack of provisions (a Robert Penn Warren novel with a trashy description on the back cover, a deck of cards, 6 bananas, a Nalgene of water, and .5L flask of coffee). Others are far more prepared with sleeping bags and 12-packs. Note: you can check sleeping bags in the cloakroom.

12:30am: Three other Chicago ugrads arrive: my friend Isaac, and his friends Arun and Daniel. They'd been in NYC for the first part of spring break and have slept the past three days in their car. After that, I guess a night on a sidewalk doesn't sound so bad.

1:00am-4:45am: I attempt sleep. I am very, very, unresolvably cold. I think of the mummy bag I've got at home that's rated to 30 below zero. Yes, that would be overkill, but I could always unzip it partially. It packs compactly, too. I lie there shivering violently.

4:45am: I give up on sleep and walk over to chat with the awake folk, several of whom I'd met earlier in the night. Josh is a young lawyer in from Scottsboro, AZ. John is a (student?) journalist from NYC who'd heard about the case while doing a piece on the Defense of Marriage Act and the TV reality show, Married By America. Sodomy struck him as far less a danger to the institution of marriage than MBA is. The first folks in line are Georgetown Law students. George Washington, Washington & Lee, and Patrick Henry are also represented. I'd guess about half the people are from outside the reach of the Metro.

5:00am: the Starbucks a few blocks away opens. I trekked over for a hot chai, the opportunity to sit for a half hour in a padded chair in the warmth, and the bathrooms.

7:00am: the police tell us to pick up our trash, form a single-file line, and march us to stand along the front steps. There are roughly 150 people in line. At this point, we're allowed to leave for 15 minutes at a stretch, no more check-ins. The cafeteria opens at 7:30.

8:00am: the protesters arrive, all eight of them, five adults and three children, ages 6 to 10. They bore signs quoting Amos 3:6: "hall a trumpet be blown in the city, and the people not be afraid? shall there be evil in a city, and the LORD hath not done it?", alleging that God, to punish society for harboring gays, sent a plague of AIDS, and caused 9/11, the sniper, and the shuttle crash (never mind that there were four born-again Christians aboard). One sign reads "No special laws for fags." I walk over and say the person holding that sign, a young girl, "actually, the plaintiffs agree with you. They were convicted under a special law. They too seek to abolish special laws." An adult woman walks over, her back to me, silently inserting herself between us and pretending not to hear me. I return to the line. A while later, when none of the people I talk to can figure out what Amos 3.6 is, I return to the protestors and ask what the line says. The woman speaks, "Go read your Bible." I asked again: I've been camping out all night, I don't have one on me. "Go home and read your Bible." I suspect she couldn't recite it chapter and verse. They start to sing a parody of America the Beautiful, off-key, referring to the land of sodomy. I can't help it, I start laughing. Too little sleep. It's not as funny when the singing continues for two hours. [sorry, I keep slipping to present tense, and I don't feel like correcting it.] I wish I could sing well and loudly, and that I knew more of the words to the song "La Boheme" from the musical Rent that includes the line "Sodomy. It's between God and me." That sums up my feelings on the morality of sodomy. Later, some high schoolers arrive, take note of the situation, and start heckling the protestors. I think the people in line were too unorganized and too tired from the night before. They get a round of "Jesus Loves Me" going briefly.

As far as I could tell, everyone in line to hear the case thought the statute should be overturned. There wasn't much discussion of it, as the only people admitting opposing viewpoints were the protesters. You can have a reasoned conversation with someone about Virginia v. Black, the Virginia cross-burning statute that takes burning one as "prima facie evidence" of intent to intimidate. Two people who both dislike cross-burning and recognize that it will still be illegal without that particular statute can discuss the constitutional implications of that clause. Back to this case. What do you say to a person who says of an act, "it's immoral." Well, why is it immoral? "History of treating it as immoral", or "'God' and other capital letters like Good and Right". This behavior fundamentally bothers them on some level? Well, that they want to impose laws on other people fundamentally bothers me on the level of "that's not right -- now let me craft a legal argument for why you can rationally be stopped."

9:00am: I go in to the cafeteria to get a chocolate-glazed donut. I proceed to dunk it in my coffee, still hot in its flask. One of GWU guys in line ahead of me looks at me in surprise and confusion at the combination. He's allergic to both caffeine and dairy. Poor guy. Talking to the GWU students, and hearing their frequent use of the second-person plural, I ask if they think there are many straight people in line. Oh no, they wouldn't come. Eh. I keep mistaking everyone, ugrad and attorneys alike, for law students. I guess it's time someone mistook me. I don't mind, I just exchange a glance with Will.

10:00am: The first 50 people are admitted to hear oral arguments. Two cases are argued today, the first case which no one in line has heard of, and Lawrence v. Texas, to be heard at 11:00am. Once you are admitted, you may stay through both cases. A separate line forms for people who want to be shuffled through to hear 3 minutes of a case. I think everyone down from 51 to 100 remained put. I lie down, on the sun-drenched smooth marble front steps instead of the cold, rough stone east sidewalks. I fall fast sleep.

11:00am: Will wakes me. Evidently it was difficult. Numbers 51-71 (69: me; 70: Will; 71: Isaac) and 73 (who skipped 71 & 72, Daniel & Arun) climb up the last flight of steps, at the police's shepherding. Through the metal detectors, to the cloakroom to check our loads and coats (required), back to the second metal detector.

11:15am: They let us through the second metal detector. A brief scare: my scarf cannot be worn, I must check it. A please-don't-make-me-leave-this-line look. A compromise: will it fit in your pocket? No, but it will do as a belt. We are seated in the visitor's gallery as arguments continue.

Success. Well worth it.


* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Finally! For the first time since camping out to see Lawrence v. Texas Wednesday, I can sit down in front of the computer. This follows: too tired, someone else using the computer, doing other things, the computer breaking, and now trying to figure out times when my younger sister doesn't need it. Coming first and sporadically: what happened in the last 45 minutes (what I saw) of the 1 hour of oral arguments. Coming next: what it's like to camp out all night in front of the Supreme Court.

THE CASE ITSELF: IN GREAT AND UNEXPURGATED DETAIL

So, Lawrence v. Texas is the Texas sodomy case. In Texas, it's currently legal for heterosexual couples to have in consensual oral and anal sex, but not for homosexual couples to do the same. Or, as Texas puts it, what's illegal is when one person engages "in deviate sexual intercourse with another individual of the same sex." Most relevant case: 1986's Bowers v. Hardwick, in which the Supreme Court declared that there was no fundamental right to homosexual sodomy. Mr. Lawrence and Mr. Garner were arrested after a neighbor called the police to say their was a crazy guy with a gun in Lawrence's apartment. The police came, found no gun, but did find Lawrence and Garner breaking the law. The neighbor was punished for filing a false report [rumor has it the nosy neighbor is a jilted ex-lover (heard Tuesday morning from some guy who used to work at the Lambda legal defense)].

[all this comes from the notes I took as I watched the case]

As I walked in, Smith was arguing on behalf of Lawrence and Garner. His argument centered around:
1) punishing same-sex couples but not opposite-sex couples violates the equal protection clause of the 14th Amendment: "nor shall any state. . . deny to any person within its jurisdiction the equal protection of the laws".
2) the statute also violates the due process clause of the 14th Amendment: "nor shall any State deprive any person of life, liberty, or property, without due process of law", for what goes on in the privacy of the bedroom when no one is harmed is a liberty that shouldn't be banned.
3) the Supreme Court's ruling in this case should overturn Bowers v. Hardwick.

Questioning:
O'Connor asked if he thought a statute banning all sodomy, hetero and homo, would be unconstitutional. Smith answered yes, it would be unconstitutional as written, and if significantly more homo than hetero were prosecuted, then it would also be unconstitutional as applied. Scalia asked, would rape laws that are only for male-female rape be constitutional? [I'm not sure if this is or was the law someplace, or if this is purely hypothetical.] Smith replied that such a law could be constitutional if it criminalized rape based on reasons that weren't related to sexual orientation, such as how well the victims could defend themselves. [I didn't like this answer as it defied logic: theoretically, it's not assault if the 6'3" person attacks the 5'5" person of the same sex, but it is when a 5'7" man attacks a 5'5" woman?]

Some folks have raised the question, if we allow same-sex sodomy, what else must we allow; at what point can the state pass a statute regulating what does occur behind the bedroom door? Scalia asked something about bigamy, possibly, if we allow same-sex sodomy, must we allow bigamy, too? Smith replied that laws targeting same-sex sodomy have only existed since the 60's and 70's, while bigamy's been illegal much longer. Marriage is protected as an institution bounded by contract. [me: but if you wanted to, couldn't you contract with two willing people who both wanted to marry you? The state doesn't seem content to just forbid bigamous relationships from using the word marriage and receiving the state's recognition. If it looks, walks, and quacks like bigamy, Utah will prosecute.] However, Smith continued, people who commit same-sex sodomy aren't people who can be married, so the law has no effect on protecting or destroying marriages. Towards the end, someone (I suspect Scalia) asked, if laws prohibiting adultery were also unconstitutional, saying roughly that "I certainly wouldn't have expected my father to go to jail over it," implying that no one's been sent to jail for either adultery or sodomy for a good many years now. Smith returned to his theme of the marriage contract. [According to the lawyer for Texas, the state doesn't forbid adultery for heterosexuals, it just doesn't condone it.]

They talked about equal protection for a while. O'Connor suggested that heightened scrutiny should be applied in this case, but Smith countered that it only required rational-basis review, and that TX lacked a rational basis, as it was acting out of a historically-based hostility. Scalia gave the hypothetical: could a state prefer heterosexuals to homosexuals as kindergarten teachers? [audible gasp from the crowd] He admitted the grounds for such a preference would simply be that children would be induced to follow homosexual behavior. Smith said the state needs more justification for its actions than just pushing people towards the behavior of the preferred majority over the minority. [Does Scalia think that people are induced into their sexualities, or that kindergartners actually notice their teachers' leanings? I remember books for that age group that explained that teachers don't live at school and sleep under their desks at night.]

Ginsburg finally asked, so you are asking us to overturn Bowers? Scalia had asked it earlier, to receive a "I was talking about equal protection" dodge. He said yes, I am, listing three reasons. Among them, the assumptions the Court made about the reality of gay life were wrong, and did not understand the effect of such laws on gay families and partnerships. Private sexual behavior should be a protected right for all people.


Then Rosenthal, the lawyer for Harris County, TX, got up to present Texas's side and to embarrass himself by arguing.
1) the Court has never recognized a fundamental right to extra-marital sexual practices.
2) Texas's law withstands the 14th Amendment challenges.

He then decided to review substantive due process for the justices' behalf, reminding them that when they're faced with a novel claim of a liberty interest that needs protection, they should look to the Constitution (of no help here), the courts, and the nation's history as guideposts. The record in this case does not show even what rights the petitioners were asking to be upheld. That statement surprised many people, including Scalia. Rosenthal explained that the record did not prove that Lawrence and Garner were actually homosexuals, but that they were two men, either straight or gay, who were simply engaging in a homosexual act. Evidently, the law doesn't talk about class of sexual orientation, but the class of people who are violators of the particular law. O'Connor thought this drew the line too neatly.

Then Kennedy dug into Rosenthal, with Scalia attempting the salvage. Kennedy pressured him, your answer doesn't meet the petitioners argument with respect to Bowers, for the petitioners think they do constitute a group. Rosenthal doggedly replied: Bowers is good law. Kennedy wouldn't let him rest. Rosenthal could think of nothing better to say than that our nation's history and mores have not changed since Bowers, denying that homosexual conduct is an accepted part of our society, blah blah circuitously. Scalia interrupted, wait, I thought you were going to respond to the argument that the mores have changed, but you're talking about how the history hasn't changed? Why do you think that the public perception of homosexual acts has not changed? Rosenthal thinks homosexuals themselves are becoming more accepted, just not their acts. Scalia dropped hints that he should think about the failure of legislature to add "homosexual" to the list of protected statuses, but Rosenthal babbled on about how these sodomy laws must be changed in the legislature where they reflect the elected will of the states. No dear, Scalia wanted you to focus on mores, or on the difference between the willingness to prosecute an act and the willingness to be the one who decriminalizes it.

Breyer then got in his professorial mode: the other side says Bowers, by underestimating the importance of the freedom to engage in private acts, has proved harmful to thousands of people. He outlined a bit more, and asked Rosenthal how he responded. The answer? Oh, it's not very harmful, it's only a Class C misdemeanor, the lowest class. Breyer: no no no. My question had 3 or 4 basic points to which I want your direct response. Rosenthal said, we think the lines should drawn at the marital bedroom door, through which the police cannot pass. Poor choice of metaphor. Breyer replied, yes, but for homosexuals you want the line drawn considerably far into the bedroom. Rosenthal retreated to his "nothing in the record" defense, noting that nothing in the record demonstrates that Lawrence and Garner gave consent to their mutual actions, or that they were capable of giving consent. Furthermore, there's logic to the state drawing the line at the heterosexual door for protection of marriage, procreation, and family. O'Connor asked if Texas allowed same-sex couples to adopt. Rosenthal conveniently didn't know. She noted it would be useful to his argument if he could say what Texas thought a family was.

[I don't understand all this emphasis on procreation. How many children make a good thing, anyway? Does Texas actually think this statute influences people's decision to procreate to any significant degree? I don't know anyone who, when giving reasons for how many, if any, children they want to have, ever mentions the state's opinion in the matter. The issue kept coming up in the discussions. The chance that heterosexual sodomy might lead to procreation was one reason Rosenthal gave for permitting it alone.]

Breyer's getting exasperated. Fine, he says, I can't see what Texas's statute has to do with marriage (can't marry), children (it's ok for gay couples to adopt), or procreation (it's not stopping or causing any). He quotes from, "I do not like thee Doctor Fell / the reason why I cannot tell / but this I know and know full well / I do not like thee Doctor Fell." It's time for some more hypotheticals, Breyer-style. Texas is legislating this for moral reasons. Could Texas pass a law forbidding people to tell really bad lies at the family dinner table? Rosenthal says, sure, but there's no rational basis for that. [then what basis is left? and what about the First Amendment free speech?] Breyer gives a new hypothetical: what about serious rudeness at dinner?

At this point Scalia jumps in for the rescue, asking a very leading question that's effectively a statement. What laws a state can pass follow the tradition of what laws the state has previously passed. Sex has been legislated, the dinner table has not. Somehow, either Stevens or Souter, asked if Loving v. VA (overturning laws forbidding interracial marriage) was wrongfully decided. Scalia referred him to the history of the Civil War and history of equal protection definitely applying to racial questions. If history should be the topic of the moment, Souter asks, so, when did Texas pass its law forbidding same-sex sodomy -- was it illegal back in 1803? Before Rosenthal can speak, Scalia quickly orders him not to answer, (and I do quote here), "That's a trick question," Texas wasn't a state back then. Rosenthal establishes that sodomy has been illegal since 1834, but it wasn't until 1973 that only same-sex was made illegal.

Getting back to his concerns with morality, only not now at hypothetical dinner tables, Breyer provides his own history: in WWI, it was immoral to teach German in the public schools, and also illegal. How can a case pass a law, claiming it's for the sake of morality, that applies only within bedrooms and no one is harmed? You haven't given any reason for this law except to repeat it's for morality. Scalia answers, sure Texas has a reason, it's because sodomy is immoral. Souter doesn't like this, asks for a harm that's done other than to morality. Rosenthal claims the statute discourages people from having same-sex physical relations, whether because they're in jail or just experimenting, because this stuff can harm people, just like drugs can harm people. Souter asks for a harm comparable to that done by drugs. They debate health: amicus briefs on either side say homosexual sodomy is and is not worse than heterosexual sodomy.

In the final bit, Rosenthal seeks to establish that Texas doesn't dislike homosexuals: the legislature recently passed a bill making it a hate crime to target a person on the basis of his sexual orientation. Talk of the legislature reminds Ginsburg of a point: homosexual candidates for office are potential victims of the attack that they are law-breakers. Rosenthal assures her that gays have been elected to office, they are only law-breakers if they commit those acts, and anyway, Class C misdemeanors leave no record.

Then Rosenthal goes a bit crazy: invalidation of this statute would make marriage laws subject to challenge, and he refers to campaigns to lower to age of consent for children. Sounding like a true Texan, he says states have a right to chose their own destiny.

Smith gets up, recaps his argument with his reserved four minutes. No justices interrupt him.


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August 01, 2005

 

Habeas?

Ted Frank will be debating the merits of Habeas Corpus review on Legal Affairs this week. He defends proposed attempts to limit federal habeas review, but it is unclear how limited of a review he envisions permitting. I will also be interested to see how he defends the bill against any complaints based on Article I, Section 9 of the Constitution ("The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it").


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July 08, 2005

 

We are all originalists now

Matthew Yglesias has a Prospect Column up championing (unsurprisingly, given the circumstances) the virtues of Stare Decisis on the Supreme Court. Because he does not go into many details other than to criticize Clarence Thomas, it is unclear whether he means his doctrine to be applied evenhandedly or only opportunistically. (What does he make of the resolute tone of the liberal dissenters in the vouchers cases, the sovereign immunity cases, and the enumerated-powers cases, suggesting that they will overrule them as soon as they get a fifth vote? E.g.: "My own course as a judge on the Court cannot, however, simply be to hope that the political branches will save us from the consequences of the majority’s decision. ... I hope that a future Court will reconsider today’s dramatic departure from basic Establishment Clause principle.") Presumably Yglesias thinks that both Casey and Zelman ought to be here to stay.

[I happen to think Yglesias's claim that "The only way to give real sense to the claim that standing by settled doctrines would be compounding a mistake would be to view the mistakes of the past as policy ones." is profoundly wrong. Assuming a separation between "policy" and "legal" decisions then exacerbating and extending decisions that are wrong, decisions that declare things that are contrary to, e.g., the U.S. Constitution is surely "compounding a mistake". Plessy and Brown and Browder are the obvious citation here, but for good reason. If not that, maybe Swift and Erie.]

Anyway, I was most struck, though, by this part of Yglesias's column:

When an issue is litigated for the first time, the best way to preserve [the rule of law] is to do the best one can to stick to the original understanding of what the law said. When a law or amendment is passed, people form expectations about what the consequences will be, and severe departures from the original understanding upset those expectations. This is bad, and it detracts from the purpose of having laws and courts in the first place . . .

In other words, Yglesias endorses a regime of strong precedent followed by originalism. Are we all originalists now?


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May 15, 2005

 

Balkin on Whelan on McConnell on Brown

Given my recent encomium to Michael McConnell's Brown article, I should note that Jack Balkin has a long blog post up pointing out some of the reasons that originalists should not be too confident about their ability to rest Brown on originalist foundations. The bulk of Balkin's post is directed at Whelan's National Review article, but there is some passing criticism of McConnell's piece.

In the end, Balkin argues that originalism is useful, but shouldn't always trump "text, post-enactment history, structure, prudential considerations, precedents (both judicial and non-judicial), traditions, and national ethos," which makes the criticism of McConnell's piece even stranger in context-- McConnell's piece relies heavily on post-enactment history, and McConnell has explicitly claimed other principles as co-equals to originalism. See Michael McConnell, Textualism And The Dead Hand of the Past, 66 Geo. Wash. L. Rev. 1127, 1140 (1998) ("[T]he only legitimate sources for constitutional judgment are ... originalism, traditionalism, and restraint."); see also id at 1137 ("Maybe the task of constitutional law, in hard cases, is figuring out the relative weight that should be given to the founding, the tradition, and the present")

UPDATE: Of course, Professor McConnell's use of post-enactment history is really just as a proxy to "get at" the hard-to-find original meaning of the 14th Amendment itself. (McConnell's use of post-enactment history in this way is one of the most common criticisms of the piece I have seen.) Professor Balkin presumably meant the other kind of post-enactment history, where changed circumstances (e.g., the existence of airplanes) require us to take the understandings at a higher level of generality, or where the practice of subsequent generations can put a new "gloss" on an old text. I quibble too much.


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April 25, 2005

 

Doctrine, Document

A smart post over on Prawfsblawg about Stare Decisis in the Supreme Court. As I understand the state of the legal debate, the question is not whether the Court ought to overrule erroneous old decisions. Almost everybody agrees that it was okay to overrule Plessy. The question, rather, is when the Court ought to overrule them.

Many champions of what they call strong stare decisis favor a substantive rule that the Court should only overrule decisions if they are "very" bad. It's never been clear whether this meant a very bad perversion of doctrine, or just a very bad normative effect. (Some people think abortion is a close call under the 14th Amendment but unquestionably evil; others think abortion is a tough moral question but a total perversion of the document.)

The Prawfsblawg post also points out that stare decisis seems to protect the court's integrity, which sits uneasily with a personal oath to uphold the Constitution (rather than to uphold the things the Court has said about the Constitution). [This means, incidentally, that Cooper v. Aaron's arrogant assertion that Brown is the "law of the land" should be questioned; it's the 14th Amendment that's the "law of the land".]

I tend to think that stare decisis should be a procedural rule rather than a substantive one. The Court should overrule old cases only if raised squarely in the cert. petition, perhaps, and perhaps only if it can do so by clear majority. But if a majority of justices can all be convinced that the Constitution requires something different than some old justices did, it is hard for me to see why they should stand by error.


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April 17, 2005

 

Homeland, Sojourn

Jeff Rosen has a much-discussed piece in the New York Times today describing the so-called "Constitution in Exile" movement, which appears to be some sort of program of rehabilitating the judicial enforcement of economic constitutional rights.

The smartest responses are these two from David Bernstein, but I will try to add a few more observations:

Because Rosen is so fair in his tone, it is difficult to tell if the piece is actually intended to sound alarm bells about a possible surge of libertarian judicial activism or just to observe that there's a huge difference between Epstein and Easterbrook. But to the extent that his post does sound an alarm (which I think is a fair guess from reading his other scholarly and non-scholarly work) it conflates two very different, and very incompatible, objections to what I call the Epstein Program.

Objection 1 is something like, "This program would harken back to the jurisprudence of the Lochner days, and most modern scholars agree that jurisprudence was wrong." Objection 2 is something like, "This program would invalidate many popular and well-accepted pieces of legislation, and is therefore scary." Rosen never says either of these explicitly, and he may not even mean to imply both, but they are the two messages I glean from the article.

These are incompatible because the scholarly objections to the Lochner days rarely come in the form "Lochnerism is now unpopular, and therefore wrong," and similarly because most people support the Endangered Species Act or whatever not because they have any particular view of the scope of Congress's ability to regulate interstate commerce but because they think that protecting endangered species is good and think the ESA does that. Most constitutional scholars object to some popular and well-entrenched laws, whether military exclusion of women and gays, the Endangered Species Act, some restrictions on obscenity, &c. This leaves popular-constitutionalist types who think that what is popular is what is constitutional and judicial-abdication types who are basically against striking down federal laws altogether: Rosen doesn't seem to stand up for either of them, and that is a fight for another day.

Also importantly, the heady days of Lochnerism that Rosen suppose that the Epstein crowd means to resurrect were not really. They seem to have been marked more by doctrinal incoherence than a serious libertarian program. Or, as David Currie puts it (The Constitution in the Supreme Court: The Second Century, 1888-1986 at 79):

In substantive terms it was an important and interesting period. The center of constitutional controversy was the clash of economic interests, and it was characterized by striking contrasts. While the sugar-trust case gave the commerce power an artificially narrow reading, the Court invited Congress to regulate anything it pleased under the guise of a tax, upheld congressional authority over aliens without reference to the enumeration of powers, and allowed the courts to issue injunctions not authorized by statute. The due process clause was employed for the first time to invalidate unreasonable rates, extraterritorial legislation, and the bakers' ten-hour workday; but the Court uphjeld most similar measures and cut back sharply on the protection afforded by the contract clause . . . . As a guardian of business . . . the Fuller Court cannot be described as very successful; the great builk of busioness-limiting measures that it addressed were upheld.

Anyway, the Rosen piece is interesting enough but it gets unfortunately smashed together many things that need to be untangled.

1: Invocation of clauses in the Constitution like the Takings Clause, the Contracts Clause, the limits on the Commerce Clause power &c. are much different from invocation of vague clauses like the Privileges and Immunities Clause or the Due Process Clause toward the same ends.

2: The Court's jurisprudence from 1896-1937 is really quite remarkably different from the jurisprudence that would flow from an Epstein Court, in the First Amendment area, in terms of the zoning and taxing powers, and much, much, more. They're also quite different in terms of intellectual coherence, but that is for another day.

3: Whether a given theory of the Constitution would invalidate laws that happen to be popular at the moment and whether it is normatively "right" (under whatever criteria one likes to judge its rightness) are hopefully analytically distinct questions.

Finally, I'd just like to note, and this seems the place to do it, that the Court's decision to (unanimously!) strike down the National Industrial Recovery Act is an example of the mis-application of the non-historical non-textual non-delegation doctrine (roughly, that a validly enacted statute is unconstitutional if it gives the the executive too many choices about how to enforce it). Bernstein calls the NIRA "fascistic" which seems about right to me, but that doesn't necessarily equate to unconstitutionality. The Court invalidated the law both because it reached too much intrastate activity (plausible) but also because it amounted to a "sweeping delegation of legislative authority" (quite wrong). The power to make rules and standards is quite different from the power to make laws, and the legislature may 'delegate' the former and not the latter. See Adrian Vermeule & Eric Posner, Interring the Nondelegation Doctrine, 69 U. Chi. L. Rev. 1721 (2002); Adrian Vermeule & Eric Posner, Nondelegation: A Post-Mortem, 70 U. of Chi. L. Rev. 1331 (2003).

UPDATE: Ann Althouse also weighs in, most usefully with a link to this Duke L.J. symposium, which features, among other things, this Adrian Vermeule piece. My favorite part:
So the overall picture is that unwritten constitutionalism, like progressive taxation, is both politically inevitable and self-limiting. The normative concerns would be important if the range within which the Court oscillates were greater than it is; but it isn't, so they aren't.


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April 15, 2005

 

Old Mores, New Mores

Timothy Sandefur has a series of posts (1, 2, 3, 4) defending the ill-mannered NYU Student who questioned Justice Scalia during a public talk about his private sex life, or more precisely, arguing that the propriety of interrogating him on the point stands or falls with the constitutionality of sodomy laws. His argument basically runs that if it is constitutional to ban this conduct, it must be because the conduct is insufficiently private, or sufficiently related to the public interest, that we have a right to know whether our public officials do it.

This is clever, but confused. There's no particular reason that the notion of "privacy" for purposes of academic and social etiquette should perfectly track the notion of "privacy" for purposes of constitutional law. Etiquette is a bottom-up institution determined by the evolving standards of society. Law (at least written constitutional law and statutory law, if not common law) is laid down in written rules set forth in large books. It would be passing strange if the legal standards devised by the 39th Congress and ratified by mid 19th-century citizens rose or fell with the evolving standards of etiquette.

UPDATE: Sandefur has more, pointing out (1) that much 4th Amendment jurisprudence is based on evolving social norms of privacy, and (2) that in any case our sense that it's rude to interrogate folks about their sex lives indicates that their sex lives our none of our business. I agree, as far as these go, but it's not that far.

1: I am not convinced that any language in the 14th Amendment was meant to create a none-of-our-business rule of Constitutional Law, let alone one that correlates to an evolving etiquette standard.

2: In any case, Sandefur's point about the 4th Amendment almost cuts the other way. The fact that we think there is something unseemly about digging around in people's bedrooms might indicate exactly that we shouldn't let the state dig around in people's bedrooms without a pretty good reason. Indeed, under 4th Amendment law, we don't. But this intuition doesn't tell us very much about what substantive behaviors we should or shouldn't be allowed to punish once we got there.


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March 29, 2005

 

RIP Johnnie Cochran

This afternoon, sitting in the law school lounge, I noticed something on the closed captioning say "Johnnie Cochran is Dead". I thought-- that can't be the Johnnie Cochran, can it? I remembered a time (many many years ago) that I was walking home and saw a man running through the street yelling "Ronald Reagan is Dead!" (he wasn't). But I decided to check when I got to the YLPR meeting, and there was no sign of his death on CNN, so I assumed I had missed something, or the closed captioning had been unusually garbled.

Apparently, I was right the first time.


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March 24, 2005

 

Compare and Contrast

Professor Charles Fried, in the New York Times (3/23/05):

In their intervention in the Terri Schiavo matter, Republicans in Congress and President Bush have, in a few brief legislative clauses, embraced the kind of free-floating judicial activism, disregard for orderly procedure and contempt for the integrity of state processes that they quite rightly have denounced and sought to discipline for decades.

Professor Charles Fried, Impudence, 1992 Sup. Ct. Rev. 155, 157n.3, available here:
May my hands fall off and my word processor crash if ever in this essay or anywhere else I use, other than in derision or refutation, the degraded epithet "judicial activism."

UPDATE: Two clarifications-- 1, "derision" in the second quote will not save Fried, since he means to deride the term. 2, Fried suggests that his first article uses "judicial activism" in implicit quotation. But it uses it nonetheless.


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March 22, 2005

 

Schiavo

I feel odd posting about the Schiavo case, because I usually try to weigh in on such hot potatoes only where my convictions are clear, or where I have something useful to add. I prefer to offend people with my controversial views only when I actually hold them.

I notice that in the circle of blogs I read daily, this is not uncommon-- Pejman Yousefzadeh, coblogger Raffi, and Mike Rappaport have all expressed some form of apology as they broke their respective silences.

But since a reader wrote in to ask for my further thoughts (now that the case is in the federal courts, or at least knocking at the federal gates) and I will provide a few.

1: The following questions seem to me to be difficult ones-- Whether a person is dead who is in a "permanent vegetative state"; Whether persons ought to be able to consent in advance to be killed; Whether declining to provide certain nutrients to an incapacitated person constitutes killing of the relevant kind; Who ought to answer such questions, and whose determinations of them ought to be final.

It is precisely because these questions are hard that we ought to resolve them by 1: setting up relevant laws to govern the interaction, and then 2: allowing individual people who think that the laws are not being followed to go before judges who are authorized to hear the claims, to present the relevant evidence and make arguments to the judges, and then achieve binding decisions in them. [I will bracket a fascinating side question; at some point, I believe that the Florida legislature attempted to pass a law overruling the Florida Supreme Court in this matter of state law, which the Florida Supreme Court struck down as violating separation of powers. I'm not positive this recollection is correct, nor whether the decision was.]

This means that the relevant-- to me-- questions in this debate are not "Is euthenasia moral or immoral?" or "Should the law generally give the power of attorney to blood relatives or to spouses?" The relevant question is 1, what Florida law actually did, 2, whether that law is consonant with the Florida and United States Constitutions, as well as all federal law and 3, whether the courts in charge of finding facts in this case did so as accurately as they are required to (and if not, who reviews those decisions and with what deference). I know it is terminally unsexy to care about such droll stuff as procedure when life or death is alleged to be at stake, and when charges of murder and grandstanding could instead be tossed about, but there you have it.

This means that arguments like Angus Dwyer's are admissible but arguments of the form "we should err on the side of life" (I decline to cite this, but examples are numerous) are not. We do not sit as a trial court, appellate court or supreme court in individual cases or controversies-- we set down laws (or get others to do so) precisely because we want to have orderly ways to resolve these controversies, rather than call the United States Congress together for a midnight caucus every time somebody might die an unjust death.

Now, if people wish to use the salience of this controversy to spark a debate about what the proper laws and rules ought to be in cases like this, fine. [My own tentative view (from which I am willing to be dislodged) resembles Amber's and Larry Ribstein's: We ought to allow people to decide whether they would like to be considered dead when in a PVS, paying attention first to unambiguous statements of desire, second to any person affirmatively delegated to make this decision ex ante, third to any person delegated to make this decision by a state default rule (spouses before relatives).]

All of which is to say what? So far I most of the relevant institutional actors seem (to me) to have acted in good faith and done a competent job. Schiavo has had something like 20 judges, several hundred legislators, and some number of executive branch officials consider her case, but she is perfectly entitled to all of that process if she can get it. I am most unsure about 1, the constitutionality of the federal statute that passed Monday, 2, the Florida Sup. Ct. decision that Terry's Law violated separation of powers concerns, and 3, the relevant findings of fact by the trial judge. But each of these actions are in turn systemically reviewable (number 2 least so) and I have no reason to think the relevant review has been or will be inadequate. So so far things seem to be proceeding properly to me, and people unsatisfied with the procedure should either elect new relevant legislators and executives (And judges?) or press them to pass different laws, if they think the system ought to proceed in a different way.


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March 21, 2005

 

Disclosure?

Bob Mann has an op-ed in today's New York Times discussing Karen Hughes 's (nominee to be an undersecretary of state) performance and grade in a class he taught at Southern Methodist University in 1976. On its face, this (or Mann's habit of keeping these grades in his garage and printing them later in newspapers) looks to me like it may conflict with the Familyl Educational Rights and Privacy Act (1974). Perhaps not, but still the notion of one's professors hoarding one's grades and releasing them to the public thirty years later seems vaguely troubling to me.


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March 20, 2005

 

On What the Harm Is

Far be it from me to dive fully into the blog-morass that is the Terry Schiavo case (or to take issue with the deep passion that some friends have on this), but I do feel the obligation to pick a nit.

At the American Scene, Ross Douthat writes:

it seems pretty much blindingly obvious that a woman who is badly brain-damaged but not entirely vegetative, and has a family that's more than willing to take care of her more or less indefinitely, shouldn't be starved to death because her husband (who incidentally wants to get remarried) claims without any documentation or proof that she would want it that way. ... why not choose life? Who's hurt by it? If the materialists are right, and we are our brain functions, then Terri is gone forever -- so she isn't hurt. Her husband can get a divorce, so he isn't hurt. The parents are willing to take care of her, so the state's pocketbook isn't hurt. So what's the harm?

A complicated question.

First off, I think even most materialists would take issue with Mr. Douthat's contention that just because somebody is dead means that their alleged wishes should have no relevance to the world of the living. The classic example is the will. Granted, we do not respect wills nearly as much as we respect similar acts by the living (C.f. The Right to Destroy), but nor do we discard them entirely. Perhaps this is because many of us believe in some muddy form of after-life, or perhaps because respecting the postmortem wishes of today's dead makes today's living think that their wishes might one day be respected. In any case, the point is that in our society, most of us think that the dead and dying should have at least some influence over what happens to them once they are gone.

So, recognizing that it can be hard to figure out what people want once they are no longer able to communicate it themselves, most states come up with some system of rules to figure out how people can express their wishes, who will be trusted to make their decisions for them, and so on. Mr. Douthat seems to acknowledge this in his post (when he suggests that the decision may actually be legally correct), but not to acknowledge that there is any value in following the rule-of-law rather than the individual-case interests. I don't want to get into when the rule of law should trump the individual case, but surely there is at least some harm in not doing so, so Douthat's "What's the harm?" argument is a nonstarter.

To recap: 1) It is not the case that just because a person is (allegedly) dead we should disrespect any surviving wishes they may have about the disposal of their property or person. (If Douthat genuinely believes his what's-the-harm? argument, I am morbidly curious to know what he thinks about necrophilia.) 2) There is some value in adhering to the system we have in the individual cases that have arisen under it, changing the rules prospectively rather than retrospectively rather than throwing over heaven and hillock for a single case.

These values may not be overriding, and they may not be overridden in this case. Indeed, some people think there should not be a place for personal autonomy when matters of one's own life or death are at stake. But these (tough) questions are the ones that Mr. Douthat needs to dig into, not the facetious claim that no harm is done by simply giving his side the tiebreaker.


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January 27, 2005

 

Amar, Amar, Amar

Criminal Procedure, thus far, is like a tour back through my own Constitutional musings, only with the much-smarter-than-me Akhil Amar as the guide. To name just two past Crescat questions discussed in class today:

Q: What work does the treason clause do, and can the government punish the same conduct by a different name?

[Possible Answer: The same problem arises in the criminal/civil distinction, but it wouldn't be silly to suppose that sufficient social force applies to treason and criminality that even a name has meaning.]

Q: What would involuntary military service have to look like before it became involuntary servitude named in Amendment 13 (and forbidden for all but convicts)?

[Possible Answer: Well, universality, social status, and a reach that includes the privileged as well as the under-privileged are good points to distinguish our current system.]


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January 25, 2005

 

Silliness

Via Heidi, Amber, &c.:





take the WHAT INTENTIONAL TORT ARE YOU test.


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January 15, 2005

 

Fundamentalism

One thing that hadn't yet been swiped from the bound volume mentioned below was a TRB column from April 28, 1973, just after San Antonio v. Rodriguez came out. [That was the case where the Supreme Court declined to strike down property-tax-based systems of local school funding, despite gross inequalities.] Now-silent co-blogger Amanda and I have gone several rounds over some version of this, but as she cannot fight back at the moment, I won't dig into the merits again.

I was, however, struck by this contention in the article:

The old liberal Warren Court-- the Court that voted unanimously in Brown vs. Board of Education that segregated schools are uncosntitutional-- would almost certainly have held with Rodriguez that education is a "fundamental right" under the constitution.

Well, certainly not unanimously. As I recall learning from Dennis Hutchinson the old liberal Warren Court had originally written up an opinion in Bolling v. Sharpe (Brown's federal, misbegotten cousin) holding education to be a "fundamental right" but Hugo Black refused to stand for it. Chief Justice Warren valued unanimity so he found other grounds.

So. Given Chief Justice Warren's emphasis on unanimity in those cases, it seems highly unlikely that the Brown court would have created a fundamental right out of education, since it had considered and declined to create a fundamental right out of education. Although, I suppose it is possible that they could have crafted a clever decision based on another ground.


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January 14, 2005

 

Taking notice

I just opened my mailbox to receive a class action notice. At first, I was delighted by the opportunity to employ my Judith-Resnik-inculcated knowledge about class actions and notice. But then I realized that I don't have an American Express card, and indeed, the notice was intended not for me but for another person in my building.

I've sent the notice on to its rightful home, but for somebody as opt-out-skeptical as I am, it just serves to reinforce another hole in the theory that everybody has the right to opt out of a 24(b)3 action pursued in their name that may extinguish their own right to pursue relief-- the vagaries of the postal service.

[I noticed, before figuring out that the notice wasn't mine, that the settlement has a website. However, it took about twenty minutes of searching via Google to find it. It is here, and the notice is here. And a related complaint-- I really hate it when articles reporting on lawsuits and cases don't provide a name or citation for the case.]

Anybody who doesn't claim their loot from the settlement, regardless of whether they were notified, will have it sent to some charity, not of their choosing. But why not assume that anybody who doesn't claim their money-- if it is a sizable amount-- probably hasn't been notified?

I am becoming more convinced of the notion that class actions ought to be opt-in, not opt-out.


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January 13, 2005

 

Literary Lessons

I have just discovered how I can classify reading Jonathan Strange & Mr. Norrell as studying for my contracts exam tomorrow:

"I intend to speak to my attorney," said Mr Murray, "this very afternoon."

"Of course you do. We should not expect anything less. But be that as it may, it is not Mr Norrell's intention that you should lose money by this. As soon as you are able to give me an account of all that you have spent in the publication of Mr Strange's book, I am authorized to give you a banker's draft for the full amount." ...

"What of my profit?" asked Mr Murray, trying to gain a little time.

"Of, you wish that to be taken into consideration, do you? That is only fair, I suppose."

We've got it all-- actual/apparent authority, consideration as forebearance, and expectation vs. reliance damages. ...

Okay, Sauron: Offer and Acceptance it isn't, but Mr. Norrell is really far cooler than some musty old Maia.


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January 10, 2005

 

Just a solicitor

In response to my previous post about Charles Fried's book recounting his time as solicitor general, Scott of Life, Law, and Libido sends along a link to this paper of his about the confirmation of Theodore Olson as Solicitor General: Objective? Theodore B. Olson and the Role of the Solicitor General of the United States.

I remarked briefly on Mr. Olson's retirement here, and have just a few thoughts on Scott's paper, which is generally quite interesting and well-written.

I do agree that the solicitor general should be something more than the lackey of the president or the attorney general, but that seems to be a pretty common view among those who are not presidents or attorneys general. But I, with Fried, am not convinced that the SG "must take care to 'never sacrifice hsi credibility and reliability as a trusted officer of the Court.'" (that is Scott, quoting Richard Wilkins). To be sure, his institutional credibility is something he should consider, but I think there are times that the SG ought to be willing to try to persuade the Court to adopt the view of the law he thinks is correct, even at the risk of causing some or all of the Justices to realize that he is engaged in argument, not decision. Rhetoric (including my own) aside, the solicitor general is in fact a solicitor, not a justice.

[I'm also unconvinced about Scott's two main problems with Mr. Olson's conduct-- a footnote on the Second Amendment in a brief opposing certiorari where Olson didn't provide enough evidence to support his contention that the Fifth Circuit was right on the question of individual vs. collective right, and a brief in the affirmative action cases where Olson submitted to what seemed to be political pressures to tone his brief down from demanding strict colorblindness to the slightly looser but indefinite standard that the Court seems to have adopted.] But the paper is full of interesting references I am going to have to track down, and is a very solid version of my girlfriend's argument that the SG answers to nobody but the law, and the Court.


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January 09, 2005

 

VA Sentencing Guidelines

(yeah, yeah, I know I'm on vacation, but I just wanted to point this out.)

Ken Lammers of CrimLaw has kindly answered my questions about his first post on general sentencing guidelines. Read his answers as to why clients can no longer get a copy of their own sentencing guidelines, and sigh.


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September 22, 2004

 

Outsourcing Complexity

From John Marshall's opinion in McCulloch v. Maryland:

A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and coculd scarcely be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked . . .

From Adrian Vermeule's recent article on constitutional amendments:
[An] idea is that amendments, at least detailed as opposed to general amendments, are objectionable because they “clutter up” the Constitution with highly specific rules— causing the Constitution, in John Marshall’s words, to “partake of the prolixity of a legal code.” Here again the nirvana illusion is at work. The real alternative to a prolix formal constitutional code promulgated by the amendment process is a prolix informal constitutional code promulgated by judges. Whatever may be said about the value of the latter, it is not “the intelligible Constitution” of general principles that the objection seems to contemplate. Consider the notoriously intricate and code-like character of judicially-developed free speech law, or the tangled underbrush of Fourth Amendment search-and-seizure law. Part of the reason these bodies of law are so highly reticulated is that the underlying texts (“the freedom of speech,” “unreasonable searches and seizures”) are so skimpy. The judges have had to fill in their content, but would not have had to do so had those texts been more expansive and detailed, as other amendments are. A complex society will produce complex constitutional law; the only real question is whether it is good to outsource constitutional complexity from the amendment process to the adjudicative process.

It seems to me that Vermeule gets the better of this argument, but I'd be willing to hear further argument for Marshall's view.


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September 21, 2004

 

Standing Alone

A friend's relative is currently standing trial, and the ensuing response by his family reminded me of a quote I saved from the New York Times long ago, in my pre-pre-blogging days:

A man who would not give his name but identified himself as the father of (the accused killer) trembled during a brief interview yesterday in front of his house. ‘I really don’t know have any words to describe how I feel right now,’ he said.

Asked if he planned to attend his son’s arraignment, he replied: ‘I’m not going to go, no. For me to go and show support for something I don’t support would be hypocritical.’


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Ayres Himself

One last thing to add apropos the three posts below: Ian Ayres is actually blogging about the crime of Reckless Sex himself, here at Balkinization.


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September 20, 2004

 

(Sort of) Unconvinced

Directly below, Peter attempts to save the Ayres/Baker paper from my objection.

Peter writes:

We are therefore only dealing with cases where only one person has consented (if both had, we wouldn't be having a trial), and the only question is which one. The preponderance of the evidence standard means that if the woman can establish that the probability she consented is <50%, the probability the man consented must be >=50%, conditional on someone consenting. Thus showing that you probably didn't consent immunizes you from prosecution for RSC.

A few quibbles.

1: Juries are not generally composed of Richard Posners and Learned Hands (my sources tell me that Judge Posner was passed over the last time he reported for jury duty). Peter's Bayesian analysis seems compelling, but I also think it is difficult to sell to a jury who was not selected on the basis of their mathematical aptitude.

2: More importantly, if the man decides to bring counter-charges against the woman, she will not be tried by the same jury. And while the second jury might decide to give credence to the first jury's probability estimate, they also might see different evidence and go the other way. Even if the probability of being convicted oneself is low, it may well be enough to outweigh the benefit of sending one's sexual partners to prison.

[One could deal with both of the above two objections by making it a rule of law that a person who has been convicted of Reckless Sexual Conduct is mathematically estopped from arguing that his partner was the Reckless one, but that would create the nasty incentive for both sides to bring their charges and finish their own cases as soon as possible while dragging out the opponent's case. After only two weeks of Judith Resnik's Procedure class, I suspect that both sides would find the game and the gamble not worth it, and simply agree to settle their differences out of court.]

3: Finally, and most importantly, the assumption that at least one party: "expressly asked to engage in unprotected sexual activity or otherwise
gave unequivocal indications of affirmatively consenting to engage in sexual activity that is specifically unprotected" is clearly faulty. (The language comes from the Ayres/Baker model statute).

Without Penthouse-style forum letters I'm not sure how to make this more explicit: Frequently when people are in the early stages of sexual congress, one thing can lead to another without either side ever making a clear and affirmative move to do it.

Furthermore, miscommunication is rife for many folks when they first settle in to bed with somebody else-- maybe he would prefer a condom and so would she, but somehow neither person dares to mention it for fear of ruining the mood.

Finally: I didn't point this out in the first post, but the paper and model statute would have the "first" occasion of sexual intercourse be a 12-hour period and count all sex-acts that occurred within as a single "occasion". It's highly likely that at various times throughout an all-night first-time romp that each party would be the "instigator" of different positions, and thus trigger liability under the statute for both of them.

UPDATE: I should add-- Peter's proposed solution of doing away with RSC prosecutions in case where nobody consents-- is a possible fix to this last point, and combined with the mathematical estoppel above it would probably save the statute from any of my serious objections, but maybe the mess that would be left would not be worth it. I also don't have a good sense for how hard it would be to prove that the defendant explicitly consented to and intended to have non-condom use.


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