The Volokh Conspiracy

Jonathan links below to Adam Liptak’s front-page New York Times article on the ideology of law clerks, and Jason Mazzone’s critique of it. Echoing the point at the end of Mazzone’s critique, I think the ideology of law clerks roughly matches that of the Justices because the Justices are trying to solve the principal-agent problem. As Wikipedia explains:

In political science and economics, the problem of motivating a party to act on behalf of another is known as ‘the principal–agent problem’. The principal–agent problem arises when a principal compensates an agent for performing certain acts that are useful to the principal and costly to the agent, and where there are elements of the performance that are costly to observe. This is the case to some extent for all contracts that are written in a world of information asymmetry, uncertainty and risk. Here, principals do not know enough about whether (or to what extent) a contract has been satisfied. The solution to this information problem — closely related to the moral hazard problem — is to ensure the provision of appropriate incentives so agents act in the way principals wish.

Supreme Court Justices solve the principal/agent problem by tending to hire law clerks who generally agree with their bosses’ views of the law. That agreement gives the Justices more confidence that their law clerks will be faithful agents. 

I think this happens roughly equally among the liberal and conservative Justices. The data Liptak presents misses this a bit by suggesting that the trend is more pronounced among the conservative Justices. Justice Thomas never hired a clerk who worked for a Democratically-nominated circuit judge, Liptak notes. In contrast, Justice Breyer hires clerks who worked for GOP-nominated circuit judges on a regular basis. The numbers are accurate, but in my view, they don’t reflect a greater willingness among liberal Justices to hire conservative clerks than conservative Justices have to hire liberal clerks. Rather, I think the numbers reflect the fact that the pool of today’s circuit court law clerks is considerably to the left of the pool of today’s circuit court judges. 

Consider the dynamic. Because the pool of potential circuit clerks is more liberal than the pool of existing circuit court judges, ideological mixes between clerk and judges tend to be one-way. Specifically, it is common for many GOP-nominated circuit court judges to hire liberal clerks. After all, most of the applicants out there are liberal. Even if you slightly prefer conservative candidates, you’re likely to end up with lots of liberal clerks given the pool. In contrast, it is rare for a Democratically-nominated circuit court judge to hire a conservative clerk. (Not unheard of, but rare.) If you’re a Democratically-appointed circuit judge, and you slightly prefer liberal clerk candidates, you’ll find you have tons of qualified liberal applicants to choose from. 

This dynamic then leads to the chart we see in the Liptak article with conservative Justices hiring almost exclusively from GOP-nominated circuit court chambers while liberal Justices have a more mixed record. If you’re a conservative Justice, you’ll find ideological matches only in the ranks of alumni of GOP-appointed circuit court judges. On the other hand, if you’re a liberal Justice, you’ll find ideological matches among the alumni of both Democratically-appointed circuit court judges and some GOP-appointed circuit court judges. To put some names on it, a liberal Justice can hire lots of Boudin clerks, and an occasional Kozinski clerk or Wilkinson clerk, without hiring a clerk who is actually conservative.

Lawfare is not just the name of a great new national security law blog, it’s also the subject of a conference this Friday at the Case Western Reserve University School of Law.  Details, including information on viewing the webcast, here.

Adam Liptak reports on the apparent polarization of Supreme Court clerks.  According to Liptak, Supreme Court justices increasingly hire only those who clerked for judges who share their ideological disposition.  Justices appointed by Democratic presidents hire those who clerked for lower court judges appointed by Democratic presidents and justices appointed by Republican presidents hire those who clerked for lower court judge appointed by Republican presidents.

Jason Mazzone comments on Liptak’s story at Balkinzation.  According to Mazzone, Liptak’s failure to account for the changing composition of lower courts causes him to exaggerate the trend.

Liptak overlooks a key change between 1975–1980 and 2005–2010 in the composition of the circuit courts. In 1980, there were 50 circuit court judges who had been nominated by a Republican President; 86 of the circuit court judges had been nominated by a Democratic President. (There were also 4 circuit judgeship vacancies in 1980.) In other words, in 1980, 37% of the circuit court judges were nominated by a Republican President and 63% were nominated by a Democratic President.

By contrast, today there are 91 sitting circuit court judges who were nominated by a Republican President and 68 circuit judges who were nominated by a Democratic President. (There are also 20 circuit judgeship vacancies). In other words, of the current federal circuit judges, 57% were appointed by a Republican President and 43% were appointed by a Democratic President.

Some of what Liptak identifies as increased hiring of Supreme Court law clerks from Republican circuit judges simply reflects the increased number of law clerks from Republican circuit judges because there are today more Republican circuit court judges.

Mazzone also questions whether the Justices’ clerkship hiring patterns really matter all that much.  Mazzone finds Liptak’s suggestion that the alleged polarization in clerkship hiring increases the ideological polarization of the Court to be unpersuasive.  He ends his response with this intriguing thought:

If, like Liptak, we think the Justice should be in the driver’s seat, then surely it is better for a Justice to hire law clerks who will be faithful lieutenants and who will perfectly execute the Justices’s wishes. Liptak’s argument for diversity presents the risk of having a law clerk who tries to manipulate outcomes: providing selective information to the Justice, hiding key facts, burying cert. petitions, inserting language in an opinion to lay the groundwork for overruling a case with which the clerk disagrees, or colluding with clerks in other chambers who share the clerk’s own political disposition.

Diversity in chambers presents a greater risk of law clerks aggrandizing power at the Court than comes from clerks whose views are close to those of the Justice they serve.

Concurring Opinions is hosting a lawblog symposium on Jonathan Zittrain’s book The Future of the Internet — and How To Stop It. I’m one of the many contributors.

Following the August 23 preliminary injunction issued by federal District Court Judge Royce Lamberth to block NIH funding of embryonic stem cell research, the Justice Department filed a motion requesting that the injunction be stayed pending an appeal to the D.C. Circuit. In a very short, 2-page order this afternoon, Judge Lamberth denied the stay motion. 

Lamberth’s decision is not surprising, given that the issues at the root of both a motion for a preliminary injunction and a motion for a stay order are essentially the same: the court must weigh (1) the relative harm that each side would suffer if they ultimately prevail on the underlying merits of the dispute but are precluded from acting in the way desired while the underlying issue wends its way through the legal system and (2) the “irreparable” nature of such harm. I believe Lamberth’s ruling today is legally incorrect, for the same reasons articulated in my August 25 post analyzing the preliminary injunction. I won’t rehash those arguments in their entirety, but a couple of points bear noting in light of today’s order.

For practical purposes, the most important point in today’s order — and the one that should be the lead in tomorrow’s newspapers — is Lamberth’s surprising statement that his injunction does not prohibit the NIH from continuing to fund embryonic stem cell research that was permitted by the Bush Administration under its restrictive rules. This is a silver lining for some stem cell researchers, because it means that research projects on the 21 Bush-approved stem cell lines that has been ongoing for as long as eight years need not be shut down. But it completely undermines the reasoning of Lamberth’s decision on the merits of the case, and helps to illustrate why it should be overturned on appeal. 

To briefly review, Lamberth ruled that the Congressionally approved, recurring Dickey-Wicker Amendment, which prohibits federal funding of “research in which…embryos are destroyed…” extends to the funding of research on embryonic stem cell lines, which are created by removing cells from 5-day old human embryos (thereby destroying the embryos) but thereafter replicate themselves in culture without any further involvement of embryos. Lamberth’s reasoning is that “research” is a very broad concept, such that a grant applicant seeking to work with embryonic stem cells is engaged in the same “research” as the non-applicant who, at a prior date, created the original stem cell line. 

The Bush Administration funded embryonic stem cell research only when the cell lines used had been created prior to 2001, whereas the Obama Administration last year expanded funding to embryonic stem cell research that uses cell lines that the government has verified were originally created from embryos left over from in vitro fertilization efforts, regardless of when the cell lines were produced. There is nothing in Lamberth’s reasoning that would distinguish between cell lines created before or after 2001. If researchers who work Obama-approved cell lines are engaged in the same “research” as the scientists who created the cell lines, researchers who work on the 21 Bush-approved cell lines are engaged in the same “research” as the scientists who created those lines. 

Judge Lamberth apparently recognizes this logical inconsistency, because he attempts two subtle rhetorical devices in today’s order to try to blunt this criticism. First, he notes that the “Plaintiffs agree that this Court’s order does not even address the Bush administration’s guidelines.” But if Bush allowed funding of A, Obama allowed funding of A and B, and Judge Lamberth finds that the law prohibits funding of A and B, it is hard to understand how the NIH may continue to legally fund A, just because the plaintiffs’ complaint was focused on the Obama rules rather than the Bush rules. Second, Lamberth points out that the Bush rules allowed research only on “existing stem cell lines, foreclosing additional destruction of embryos.” This distinction might matter if Lamberth’s underlying reasoning were that the Dickey-Wicker Amendment prohibits funding of research projects that might create an incentive to destroy embryos in the future, but this is not at all his reasoning. His entire argument is retrospective, not prospective: that research on a stem cell line is the same research project as the prior creation of the line. (By the way, Lamberth’s attempted distinction is factually questionable as well, because the Obama rules only allow funding of research on lines derived from embryos that would otherwise be destroyed anyway; thus, they do not actually create an incentive to increase the number of embryos destroyed). 

Lamberth’s order today also attempts to narrow the scope of his August 23 decision by saying that the injunction does not prohibit NIH from maintaining its Human Embryonic Stem Cell Registry and from funding induced pluripotent stem cell (iPSC) research. (iPSCs are adult cells reprogrammed to behave like embryonic stem cells). Again, this is hard to square with the breadth of his reasoning. Embryonic stem cell lines are necessary for the maintenance of a registry, and they are necessary for iPSC research, because the iPSC cells must be compared to embryonic stem cells to determine if the former are behaving like the latter (as is the goal). Lamberth’s reasoning is that it is illegal for NIH to fund any research that uses embryonic stem cells. It logically follows from this premise that funding the registry and iPSC research are illegal. 

One other interesting element of today’s order is a point on which Lamberth is completely silent. In its brief requesting the stay, the Justice Department compared the potential harm to the plaintiffs if the stay were granted pending appeal to the potential harm that would result if the stay were not granted. On the former side of the equation, the Justice Department presented two new facts, of which I was not previously aware: that one of the two plaintiffs claiming harm from having to face increased competition for grants from allegedly illegal embryonic stem cell research grant proposals has recently been awarded an NIH grant, and that the other plaintiff who claimed the harm of increased competition has never applied for an NIH grant! These facts, provided in an affidavit by NIH head Francis Collins, suggest that the likelihood that the plaintiffs would suffer any real harm if the stay were lifted until the merits of the case are resolved is vanishly slight. Yet Lamberth completely ignores them. 

The only defense of today’s decision offered by the order is that “a stay would flout the will of Congress, as this Court understands what Congress has enacted in the Dickey-Wicker Amendment.” The problem with resting the denial of the stay solely upon his interpretation of Dickey-Wicker is that, if the legal question concerning whether a stay were appropriate were supposed to be exactly the same as the question concerning the proper interpretation of Dickey-Wicker, we wouldn’t need a separate legal process for considering the stay. 

Tags: stem cell research

Over at the Lawfare Blog, Jack Goldsmith offers an interesting take on the recent announcement that David Addington has joined the Heritage Foundation as its new Vice President of Domestic and Economic Policy Studies.

SCOTUSBlog has unveiled a new look and new content.  Check it out.

The NYT reports on studies on effective study habits.  Among other things, the it discusses studies showing that some simple, and potentially counter-intuitive, techniques can enhance recall and retention.  In particular, it suggests that varying study environments and mixing up content in study sessions enhance the effectiveness of studying.  So don’t always study in the same cubicle or space and don’t focus on a single subject on a single day.  The story also notes that research supports the value of some conventional recommendations as well, such as the value of taking breaks and self-testing.

In case you’re wondering about the fate of the Ultimate Legal Blog Comment thread, it seems that it is now at 1,032 comments and is still going. Fraud!!!

UPDATE: I have amended the post, as it seems that my earlier conclusion that the thread had been shut down by the software was incorrect.

As Orin wisely notes in the immediately preceding post, the typical law review article first footnote disclaimer “all errors are the author’s alone”  provides no useful information to the reader. Below are some alternatives which I have used:

“All errors are society’s fault.” 29 Hamline L. Rev. 520.

“Any errors are the fault of no-one in particular; rather, society itself is to blame.” 68 Alb. L. Rev. 305.

“All errors are the authors’ sole responsibility, but persons aggrieved by any such errors are encouraged to sue the companies which manufactured our computers.” 34 Conn. L. Rev. 157.

“Any errors in this article are the fault of society, and cannot be blamed on an individual.” 18 St. Louis U. Pub. L. Rev. 99. 

“Errors are entirely the responsibility of sinister unknown forces, not the authors.” 30 Conn. L. Rev. 59.  

Feel free to use any of these, provided of course that you include a citation to the original source. :)

Orin’s post may also be considered an oblique foreshadowing of the 2014 bestselling book: Barack Obama, My Autobiography, Part III: The Four Presidential Years, with the first footnote stating, “All my errors were because I did not listen to Cass Sunstein.”

It is common in the author footnote of law review articles — you know, the footnote that follows the author’s name that tells you who the author is — to thank people who have read drafts of the articles and offered comments to help improve it. It is also common to follow that expression of gratitude with a remark that any errors in the article are responsibility of the author rather than the people who helped with it. Here are a few examples of the latter from recent articles, found by running a search for “thank! /p error! /s mine & da(2009)” in Westlaw’s popular journals and law reviews database:

All errors are mine and mine alone.
Any errors contained herein are mine.
All errors are mine.
All errors, of course, remain mine.
All errors contained herein are mine and mine alone.
All errors and conclusions are mine.
As always, any errors or oversights are mine alone.
Any errors that remain in the paper are mine.

The sentiment of the “all errors are mine” comment is supposed to be a generous one. You wouldn’t want anyone who just read the paper and offered some comments — or perhaps who helped do some research for it, such as a research assistant — to be blamed for errors in the paper. 

At the same time, am I right that the “all errors are mine” comment is pretty useless? If a paper has an error in it, I put the responsibility for that on the author. If it’s a Bluebooking error, I might put the responsibility on the editors of the journal who were in charge of Bluebooking. But it would never occur to me to blame a person who read an article and offered comments for any errors found in the paper. Comments are just comments. They’re food for thought that the author can accept or reject, not a mandate to adopt the argument that the commenter suggests. The author is the person with her name on the front page: No one needs to be reminded that the author is ultimately responsible for the contents of what follows. 

Assuming others see it the same way, can we all agree to retire the “all errors are my own” line? I realize that it isn’t the most pressing problem facing America right now. But it would be very easy to fix, and I don’t think anyone would miss it.

From the concurring opinion of four Justice in Ex Parte Milligan (1866), arguing that Congress has the power to establish domestic military tribunals for certain crimes during wartime: 

We have no apprehension that this power, under our American system of government, in which all official authority is derived from the people, and exercised under direct responsibility to the people, is more likely to be abused than the power to regulate commerce, or the power to borrow money.

A few weeks ago, Israeli newspapers reported that an Arab man had been convicted of “rape by deception” after having intercourse with a Jewish woman while pretending to be a Jew.

Various blogs ran with the story. The more sober blogs noted that the crime of rape by deception was established as a crime in Israel in a context having nothing to do with inter-ethnic/religious sex, and various law professors noted the interesting hypotheticals that could arise under this crime.

The more hysterical anti-Israel blogs (do I even need to mention Juan Cole?), by contrast, found that the case reflected a deep illness in Israeli society. For example, Andrew Sullivan:

But it’s the visceral emotional core of this that is so offensive. It’s about racism, religion and the risk of miscegenation. It’s about the deep disgust of some Israeli Jews toward Arabs, upheld by the courts. It’s a variant of the racial sexual panics of the Jim Crow South. 

Gideon Levy, an Israeli whose vitriol for his own country puts Sullivan to shame, added:

It was no coincidence that this verdict attracted the attention of foreign correspondents in Israel, temporary visitors who see every blemish. Yes, in German or Afrikaans this disgraceful verdict would have sounded much worse.

It turns out, however, that the victim actually accused the perpetrator of “simple” violent, forcible rape, and the charge of “rape by deception” was a plea bargain (original Hebrew, but here’s an English translation) agreed to by the defendant to avoid trial on the real charge, and agreed to by the prosecutor because the victim, a past victim of significant sexual violence, would have been traumatized by pursuing the case.

We sometimes see a similar dynamic in the U.S., where, say, a 22 year old is convicted of statutory rape of a 17 year old. This seems absurd, an abuse of prosecutorial discretion, until you learn that the 22 year old was accused of a forcible rape, and the statutory rape charge was a plea bargain. 

I would severely admonish Sullivan, Levy and others for leaping to conclusions based on a single, unverified and uninvestigated news story, but I’m not at all certain that I never do the same thing. (Even worse are the various news outlets that reported and embellished the original story (e.g.) without investigating the facts.) However, I do try to post corrections and retractions when I turn out to have made inferences that turn out to be mistaken. We’ll see if Sullivan, et al. do the same. Put it this way: if you read a blog that gave this story an anti-Israel spin and you don’t see a correction in the next day or two, you can cross it off your credibility list.

H/T: Michael Davis and Steven Lubet.

“Say goodbye to Mr. Chips with his tattered tweed jacket; today’s senior professors can afford Marc Jacobs.”  Andrew Hacker and Claudia Dreifus, Higher Education? How Colleges Are Wasting Our Money and Failing Our Kids — And What We Can Do About It.

I share many of the concerns expressed in Christopher Shea’s Sunday NYT book review essay, The End of Tenure.  About the higher education pricing bubble, the collapse of the university as a vehicle for teaching writing and thinking, about the intellectual collapse of the humanities, etc.

I also share the concerns about tenure as an economic construct of lifetime sinecure.  That said, and one of these days I’ll blog about it for real, I think deeply that conservative and libertarian professors who downplay the protection that tenure offers for unpopular political opinion ...  umm.  I think that the dismantling of tenure would have a rippling cascade of very bad unintended consequences for diversity of political opinion, even such as it is, in the university.  But I sidetrack myself and do intend to leave that for another time.

Shea mentions, in passing, the above-quoted aside in the book under review.  Now let me say that I didn’t know who or what Marc Jacobs is, until I went to the link above, but I did recall it somewhere.  And behold, in my closet, a suit that dates back to the 1980s and my days of law practice, not teaching, but almost certainly not bought at retail, though it predates ebay, a suit by one Marc Jacobs.  Out of style, certainly, crossed garters and all, but a rather handsome suit.

(ps.  I sound too defensive there.  Meaning, I think that professors, including me, would do well to dress up more than we do for classes.  I don’t think the problem of professors, including extremely well compensated ones at super elite schools, is so much one of Marc Jacobs so much as it is Tom Wolfe’s complaints about superannuated middle aged male professors dressing as though undergraduates or teenagers or five year olds.  Cf. Althouse on the topic of men in shorts.  I include myself as one of the culprits.  My students would be very pleased to think that I took them seriously enough to dress up in a Marc Jacobs suit for class, and even more if they thought I had expended real funds to buy it full price, not on ebay, as a mark of respect for them.  Would it persuade them to read any more thoroughly for class or do less texting and web surfing?  That, I do not know.)

Ross Douthat pens another excellent column in yesterday’s New York Times. He observes that “obsessing about the paranoia of the masses is often a way for American elites to gloss over their own, entirely nonsymbolic failures.” For example, “Today, establishment liberals would much rather fret about the insanity of the Republican base than reckon with the unpopularity of Barack Obama’s domestic program.”

For a good example, see this recent episode of Bloggingheads.tv, featuring Michelle Goldberg (The Daily Beast) and Sally Steenland (Center for American Progress) talking each other into ever-higher levels of paranoia against the American people, based on gross misinterpretations of the Tea Party movement.

Behold, the personal drone, controlled by Ipad, Itouch, Iphone, available on pre-order for later this year from Amazon.

The Parrot Helicopter Drone

Due to the press of a deadline for something else, I am not able to comment as fully as this all deserves, but I wanted to flag this morning’s editorial in the Washington Post, essentially defending and, in some ways, extending the Obama administration’s position on targeted killing, whether using drones or human teams, including American citizens under certain circumstances.

[DOS Legal Adviser Harold] Koh correctly asserted that the 2001 Authorization for the Use of Military Force, international law and the country’s inherent right to defend itself put it on solid legal footing for such attacks, including those outside traditional battlefields ... In his [March ASIL 2010] speech, Mr. Koh did not address whether U.S. citizens could be the targets of these strikes.

The American Civil Liberties Union took up Mr. [Anwar] Aulaqi’s cause last week, arguing that it would be unconstitutional for the government to carry out such a strike against an American, especially one located outside a recognized war zone.

U.S. citizens who take up arms against the country are enemy combatants and are indistinguishable on the battlefield from other belligerents. The political, legal and moral calculus of addressing the threat posed by an American enemy combatant such as Mr. Aulaqi changes when he is located outside a recognized war zone. The discussion should be — and we trust would be — dramatically different if he were residing in an allied country willing to use lawful means to capture and turn him over.

But when a target is hiding in a lawless state or in one which refuses to cooperate in his apprehension, other alternatives must be considered, including targeted strikes. The decision to target an American must be a last resort, used only when other lawful means of apprehending the person are unavailable or too dangerous to pursue. Such decisions should be approved by the president, and the bipartisan leadership of congressional intelligence committees should be notified in advance. Mr. Koh said in his speech that this practice is already followed, even in cases involving non-citizens.

I agree with the fundamentals of the editorial; so does Ben Wittes, commenting at the new — and I suspect soon to be indispensable — national security blog, Lawfare.  Not everyone does, to be sure; over at Opinio Juris, my co-blogger Kevin Jon Heller argues that, at least outside of a recognized war zone, an American is entitled to adversarial judicial process, and adds:

We would never allow a state to execute an American citizen simply because the Governor has decided that he was guilty of capital murder (or, worse, that he intended to commit capital murder at some unspecified point in the future); such an execution would be a paradigmatic violation of due process. So how can anyone argue in good faith that due process permits the targeted killing regime adopted by the Obama administration?

There is, of course, an easy and fair solution to this problem: require the government to obtain judicial authorization for a targeted killing by proving, in an adversarial hearing, that the American citizen has committed a capital crime. If the government has reason to believe that notifying the target of his status will cause him to disappear, it can appoint counsel — perhaps the ACLU or the CCR? — to represent him in a secret proceeding.

It’s an interesting scenario — CCR Michael Ratner representing a gone-missing-in-Yemen Aulaqi, getting a chance to review the government’s secret evidence, being able to review the secret methods of secret evidence collection in a secret proceeding, not only the contents of which presumably need to be kept secret but the very fact of the proceeding as well?   I wonder what the internal reaction to this scenario would be inside Koh’s shop at the State Department, let alone at DOJ, DOD, NSC, DNI, or CIA.  But now a couple of final comments which go to issues that haven’t been so much discussed.

First, if one reads the ACLU-CCR filing as well as the Washington Post opinion piece by the two advocacy groups which has also been discussed at Lawfare and Opinio Juris, it is hard not to notice that the underlying argument is only secondarily about an American citizen being targeted — and primarily about the idea that an armed conflict in a legal sense is necessarily geographically bounded, limited to particular battlefields and acknowledged “theatres of conflict.”

On the citizenship point, one understands the problem — the progressive left of which these groups are a part tend to put no weight on citizenship much of the time, treating it as a morally accidental and therefore morally suspect category — except when it comes time when it can be invoked to offer protection.  (One might regard this as a theory of citizenship premised on the view that it promises only goodies, and is merely a mechanism for internalizing benefits and externalizing costs.  As with most situations of continuous moral hazard, such a conception can’t really last.)  At the end of the day, the advocacy groups see the citizenship issue merely as a strategic argument for protecting a group (Americans) that has no actual special moral claim.  And so, whatever the argument over targeted killing are at any given moment to advance the cause of prohibiting them, the advocacy work won’t be done until it also addresses the presumptive human rights of non-Americans equally.  Citizenship is merely strategic.

Second, going to the geographic definition of war as a legal concept.  This idea that armed conflict as a matter of its legal conception is geographically limited in this way has gained currency primarily from the writings of the International Committee of the Red Cross’s Nils Melzer, who so argued in an important book, Targeted Killing in International Law.  And also Notre Dame law professor Mary Ellen O’Connell, who has argued this proposition (as well as an associated claim that all participation by CIA personnel in the use of force is an international crime).  I cannot say that these claims — although heroically urged by the advocacy groups and their academic allies — have a basis in the law of war as the US (or really, leading war-fighting states) has traditionally understood it.  Certainly the State Department, under Harold Koh, no less, does not even entertain it.  And even military lawyers who are very far from defending the Bush administration’s war on terror do not endorse the “geographical” limitation.  (I have a complicated legal view of all this, related to self-defense and armed conflict, but not one that really matters for this purpose.)

Rather, the customary view of the US — and the traditional view of war-fighting states — has always been that the fight can lawfully go wherever the participants go.  It goes where they go. “Battlefield” and “theatre of conflict” are not legal terms in the treaty law of war, not as limitations on the armed conflict itself.  The law of war accepts as a practical reality that the armed conflict is where hostilities happen to take place, which means, of course, that the armed conflict is a reflection of hostilities and hostilities can be undertaken as a matter of jus in bello where the participants are.  The reason for this traditional rule is obvious — if the armed conflict is arbitrarily limited in this way, then it invites combatants to use territory outside of the “armed conflict” as a haven.  Under some circumstances, for diplomatic or other political reasons, a state might choose not to attack even though participants are taking haven, but the reason is not a matter of the law of war jus in bello.

The ACLU-CCR view acknowledges (at this point in its advocacy campaign, anyway) that a US citizen might be lawfully targeted — not to put too fine a point on it, and a note, per Orin’s earlier post, to judicial clerks — without the permission of Proconsul Kennedy, provided that he be on an “actual” battlefield as the ACLU legally defines it in its own way.  That being the ACLU’s view for the nonce, then the geographical distinction is crucial as a matter of law.  Within it, the US citizen can be treated as a combatant like any other; outside of it, then in the ACLU and CCR’s view, constitutional rights follow the citizen.

It is important to understand, then, that the ACLU and CCR’s advocacy position is not limited at all to US citizens — it is to impede targeted killing by requiring, among other things, the permission of a Federal judge at a minimum, including for non-US citizens.  Since it seems, as a matter of political advocacy at least today, a bit of a stretch even for the ACLU or CCR to try and argue that an American shooting at US soldiers in Afghanistan is owed a judicial hearing, the crucial premise is to separate out those “active” war zones as a matter of law from places where constitutional due process meted out by a federal judge obtains.

The citizenship issue is best understood, then, as a stalking horse for a larger advocacy strategy in which, in the case of US citizens, constitutional rights follow US citizens even beyond territorial borders — a questionable proposition, in my view, if that is supposed to mean “all” or even “all important” ones.  (There are many reasons why territory matters in the existence of constitutional rights — the actual exercise of actual police powers over the national territory, versus Yemen or Somalia, for one thing; it is partly, but not just a formal concept about sovereign territory.  The Post editorial dealt with that correctly, in my view.)  And in the case of non-citizens, outside of what the ACLU defines as the legal armed conflict zone, full human rights law applies on the ACLU-CCR, to render the targeted killing an extrajudicial execution; likewise, in my view, a questionable proposition.  But in the discussion of the current ACLU lawsuit, I think the fundamental premise, and the most dubious one as a matter of law — geographical limits on the legal state of armed conflict — has been somewhat passed over as people have argued instead about citizenship.

Third observation — why the assumption that in everything, including crucial issues of national security abroad, there is always a role for the Federal judiciary?  The Washington Post editorial emphasized, correctly, in my view that indeed a US citizen was deserving of greater scrutiny in deciding whether or not to target; I deliberately use “scrutiny” as a non-legal term rather than “due process.”  The Post was seemingly careful not to suggest that this scrutiny should be that of a judicial process or Federal judge.  Rather, the Post quite correctly, to my mind, emphasized that this consideration should be built into the intelligence oversight process — some kind of mechanism to ensure that the fact of citizenship has been acknowledged and a heightened evaluation made.

The WP says that the bi-partisan intelligence committees should be informed — a matter with which I could not agree more, on this as well as other matters involving Congressional oversight of the intelligence community.  But there is a special salience here.  Because in these targeted killings and other intelligence actions, officials tasked to carry out these missions need to have assurance that they will not be scapegoated afterwards.  They do not have it now.  A crucial political mechanism is to ensure that the intelligence committees have been fully and completely informed — so that there can be no later deniability as to what Congressional leaders were informed in secret.

I would write that as an amendment — perhaps; I could also be persuaded putting anything in writing is merely an invitation to judicial intervention — into USC 50.  This would be partly to make clear both that the process is vested in the political branches as a matter of national security, but that in the case of Americans abroad and possibility the subject of forcible actions by the actors in the “intelligence community,” the President shall, in the lawful exercise of his discretion, take into account that the person is American.  But it would also be to say explicitly that nothing in the exercise of that discretion confers any substantive rights on any individual and that the judiciary has no power to review such exercise of Presidential discretion.

As various people have pointed out, the current ACLU lawsuit is not likely to go anywhere.  From the advocacy point of view, that is not really the point.  It is instead to keep create as much legal uncertainty as possible by raising the possibility that at some point down the road, perhaps some Federal judge will decide to entertain these possibilities, and hold some CIA official liable for something done years before — does any, these days, think that we are in a period of settled institutional views on liability?  If anyone thinks that even a small amount of legal uncertainty for individual officers involved does not have consequences, they should think again.  Leveraged legal uncertainty affects behavior.

Moreover, the US government, under any administration, is perennially unable to see the larger advocacy campaign — this as well as other ones.  They are textbook examples, whether one agrees with the cause or not, of The Logic of Collective Action; they look to the ten year framework, and they understand something that seems to elude too many law and economics scholars, viz., the framing power of legitimacy.  Hence the current formulation of the ACLU lawsuit — execution without trial of an American citizen abroad by his government.  One might think that “execution without trial” tendentiously presumes the conclusion, but it has been faithfully picked up and repeated by numerous journalists and commenters as though it were the obvious starting point rather than a tendentious conclusion.

When I talk with government lawyers about this public advocacy issue, however, their response tends to be ... but Harold Koh already addressed this in his speech!  It’s been settled, already!  But if you are engaged in an advocacy campaign for the long run, Koh merely gave momentarily the wrong answer, and the task is to endlessly reframe until everyone has forgotten what he said and what’s left is, “execution without trial.”

Finally, the long march of advocacy groups through the institutions puts a greater importance on that least-impressive branch of government, the US Congress.  It needs to get involved — to take up its responsibilities as one of the political branches to set the most basic terms of national security.

But for a sharply contrary view to all of this — a view that, when contrasted with this or with Harold Koh’s views, shows just how much these basic conceptions of national security are today ships passing in the night — read Kevin’s (several) posts at OJ as well as Ben’s comments at Lawfare to which Kevin is partly offering a reply.

Once virtually eliminated in the United States, bedbugs are back with a vengeance.  Earlier this summer Environmental Protection Agency and Centers for Disease Control and Prevention reported the little pests had made an “alarming resurgence,” possibly due to increased resistance to available pesticides and a decline in local pest control programs.   Some pesticides once used for bedbug control have been phased out from indoor use, if not altogether, and the blood-sucking insects have developed resistance to their replacements.  Lifestyle changes also play a role in the bedbug rebound.

As the Washington Post reports some state and local officials are seeking EPA approval for indoor use of chemicals that retain their effectiveness against the pesky parasites.  Ohio Governor Ted Strickland, for one, has sought approval for use of propoxur, a pesticide currently banned from residential use, but so far the EPA has said no.  Without a safe and effective indoor pesticide to use, bedbug infestations are spreading.  As the Columbus Dispatch reports, bedbugs are spreading to schools, fire departments, and group homes, among other places, and increasing burdens on charities that collect and sell used clothes and furniture.  There are also increasing reports of health problems caused by ill-advised efforts to use available outdoor pesticides indoors.

Health officials in Ohio and several other states believe that the risks posed propoxur are outweighed by the severity of the bedbug problem.  The EPA disagrees.  The EPA has the legal authority to preempt state preferences, and is often obliged to under existing statutes, but should it?  Why should the EPA’s assessment of the relevant risk-risk trade-offs override those of the states?

There is an unquestionable case for federal intervention where activities in one state cause spillovers into another.  Think of air pollution.  But there’s no risk of such spillovers here.  Indeed, if there’s any risk it operates in reverse — jurisdictions that fail to control bedbugs can increase the risk of infestation for their neighbors.  By limiting local pest control options the EPA is protecting local jurisdictions from themselves, and some don’t want this protection.

If local communities wish to strike a different risk balance than the feds, the EPA should not stand in their way.  It is one thing for the EPA to inform local choices, and help clarify the relevant health trade-offs, quite another to impose one set of health preferences on the nation as a whole.  If EPA’s resistance to propoxur was motivated by spillover concerns, such as potential groundwater pollution that could cross state lines, the federal rule would make sense.   But it is not and does not.  This is precisely the sort of environmental problem which state and local preferences should control.

At Econlog, GMU economist Bryan Caplan and Princeton economist Bill Dickens have been debating the signaling model of education. See this post for Bryan’s most recent contribution and links to earlier parts of the debate. Bryan argues that a large part of our education spending (perhaps as much as 80%) is socially wasteful “signaling.” It is a kind of arms race where students try to get more education than than their rivals in order to signal their conscientiousness, conformity, and intelligence to potential employers. Crucially, however, much of the information learned is actually not needed for their careers; the real objective is just to rack up better-looking credentials than the Joneses in order to look good to employers.

Both sides make many good points. Overall, I am not persuaded by Bryan’s argument, at least not yet. The crucial objection, raised by Dickens, is that if most education expenditures are primarily about signaling, it should be possible to find other, cheaper ways to signal these desirable traits to employers. Bryan in fact concedes that “intelligence is fairly easy to observe (even in a regime where IQ tests are only semi-legal).” For example, applicants can submit their standardized test scores even if employers don’t require them to do so. Intelligence can also be signaled by getting a high grade in one or a few difficult courses at the high school or college level. You don’t really need four years of college grades. So the debate really turns on the extent to which it’s possible to find easier and cheaper ways to signal conscientiousness and conformity. Here, Bryan argues that there is an adverse selection problem:

[C]onscientiousness and conformity are often hard to spot — especially when people have a strong incentive to fake them. Even worse, low educational attainment relative to IQ is a strong signal of low conscientiousness and conformity. So when employers interview a smart person with little education, they infer that the person is well below-average in other productive traits.

As Bryan sees it, a cheaper or quicker method of signaling (e.g. — a college that takes only one or two years to complete) will tend to attract noncomformists and slackers, the types of people whom most employers seek to avoid. As a result, they will shun graduates of such institutions. This key part of Bryan’s argument is not entirely persuasive. For one thing, the cheaper or quicker method will not attract a disproportionate number of slackers if it is hard to pass. Consider, for instance, a college that will give you a degree in only one year, but requires you to pass a series of extremely difficult courses that are very strictly graded. If higher education is primarily about signaling and the actual content of courses doesn’t matter very much, that type of program will attract hardworking, capable people eager to get into the work world faster and at lower cost. It should spread quickly. Indeed, employers might even start to look askance at the slackers who spend four years hanging out and socializing at conventional colleges.

A second relevant consideration is that conscientiousness and conformity is better signaled by good work at boring and unpleasant tasks than at relatively interesting ones. If you do the latter well, it could just be because you enjoyed them, not because you are dedicated and trustworthy. In most four year colleges, students have considerable choice as to which courses to take, and can usually avoid those they find boring or off-putting. By contrast, many blue collar and service jobs have extremely boring and unpleasant elements that are hard for workers to avoid. If your goal is to signal conscientiousness and conformity, a year of good performance at McDonald’s is probably a better signal than a year of academic success at most colleges. And unlike college, McDonald’s doesn’t charge tuition and pays you a salary (even if a small one).

When I was in high school, I did a lot of babysitting and lawn work. These jobs were generally boring and repetitive, and I often hated them. Yet, for the most part, I did fairly well. My effective performance of these tasks was a much better signal of conscientiousness and dedication than my work in various academic classes, especially the ones I took in college where I had a free hand in picking most of my courses. Indeed, what could be a better signal of conscientiousness and conformity than the fact that people were willing to entrust their children to me, sometimes for many hours at a time?

Yet few if any white collar employers cared about this part of my record. Had I tried to get a job based on a combination of my standardized test scores (signaling intelligence) and glowing recommendations from the people I did babysitting and lawn work for (signaling conscientiousness and conformity), I probably wouldn’t have done very well. 

I suspect that my experience was not atypical. Perhaps most employers are simply too stupid or too tradition-minded to hire workers based on these credentials alone. But, as economic history shows, the first employer to recognize and correct a major inefficiency in hiring labor is likely to get a huge competitive advantage. Over time his rivals will have strong incentives to copy his innovations.

In sum, I think that Bryan overstates the extent to which signaling drives education expenditures. Like Dickens, I conjecture that successful completion of college courses often improves people’s qualifications even if the specific knowledge they learn has very limited market value in itself. For example, it could do so by improving the students’ reasoning ability, writing ability, or organizational skills. Bryan doesn’t deny this completely, but his argument can only work if such effects are very small relative to the impact of signaling. At the same time, I agree with him that the education system has numerous inefficiencies, many (though by no means all) of them caused by government subsidies and regulation. I’m just skeptical that the signaling arms race is nearly as big a part of the problem as he contends. 

It’s Labor Day weekend.  I’m not ready for summer to be over, but it’s not like I have much choice in the matter.  Death Cab for Cutie’s “Summer Skin” seems appropriate. Here’s the second verse:

I don’t recall a single care
Just greenery and humid air
Then Labor Day came and went
And we shed what was left of our summer skin

Here are the full lyrics, the song, a fan made video. and a live version.

Jerusalem Post:

The Jerusalem District Labor Court last week rejected a temporary appeal by a Muslim teacher at a private Christian school to allow her to continue working after she decided to wear a hijab in class after teaching without one for 27 years.

Essentially, the court rule that as a private Christian school that sought to maintain a strict equality between its Muslim and Christian students, the school was entitled to enforce its dress code even though it infringed on the teacher’s statutory religious freedom rights.

The category of “Best Rosh Hashanah Video on YouTube” is probably not that competitive, but here’s a favorite of mine. The Hebrew is actually PG-13 or so, and not especially profound. But I love how the “author” worked with a popular and very catchy Muppets song. 

Shanah Tovah, for the uninitiated, means “Happy New Year.” Rosh Hashanah, the Jewish New Year, starts Wednesday night.

A few days ago I linked to a couple of articles on VAT tax proposals that have been circulating, including an attack by Daniel Mitchell at the Cato site, and a short blog post from Greg Mankiw explaining why, as a replacement for the rest of the tax system, he thought it was a better tax mechanism, as well as being the functional equivalent of certain versions of the flat tax.

I received several interesting emails from tax professors in response.  One pointed to a paper very much on the point of the post by Brian D. Galle, Hidden Taxes, upcoming in Washington University Law Journal; the SSRN abstract says:

The idea of hidden taxes is as old as John Stuart Mill, but convincing evidence of their existence is new. In this Article, I survey and critique recent studies that claim to show that there are some taxes that can go unnoticed by those who pay them. I also develop the array of unanswered theoretical questions and policy implications that potentially follow from the studies’ results.

But I also received an email from a friend and colleague on my own Washington College of Law faculty, tax professor Benjamin Leff.  (Ben is a junior — ie, untenured — professor, and he had some hesitation about putting out views on a blog.  I assured him that people understand that this is informal, first draft discussion, not a final academic or scholarly product, and moreover, it is a space to think about the political ramifications of various policy positions, in ways that one might not think appropriate for a scholarly paper.)  I’m delighted to say that Ben is letting me put up his remarks as an embedded guest post, and my thanks to him for taking this up:

Your post on why the “hiddeness” of a VAT tax is “a bug, not a feature” was very interesting. Basically, if I understand correctly, you’re dipping into an old argument about the relevance of tax “salience.” The argument you’re making is that a less salient tax (a more “hidden” one) creates a public choice problem, because it enables policy-makers to tax more with less protest from the taxed. The implication is that if the people fully felt the sting of the taxes they pay, they would do the hard work of cutting government spending down to optimal levels, rather than overspending as they currently do (if they do). Thus, if a VAT were passed, and if it had the benefit of being less salient than current taxes, it would permit additional spending by the government.

I think the most common answer given to your argument currently is that the discovery of limitless deficit spending put an end to plausibility of the “starve the beast” argument you’re making. In other words, the link between taxing, voting, and spending that you propose is broken by the option of neither taxing nor reducing expenditures. That seems convincing to me, but I have no special knowledge about it. In recent memory, tax cutting has not generally been accompanied by reduced government spending, but obviously that doesn’t really prove anything. At root, it’s an empirical question: if a VAT were introduced, would the government use the revenue generated to (1) reduce non-VAT federal taxes (keeping overall revenue neutral); (2) reduce the deficit; or (3) increase federal spending. That question may or may not have anything to do with how “hidden” a VAT is. It may have more to do with the public debate that supports the imposition of a VAT, the intentions of Congress in enacting it, and the continuing commitment in Congress to whatever choices made with regards to spending and deficits.

But, more important than whether the argument is convincing or not, I think, is some context for it. You describe “hiddeness” as a feature that makes a VAT “particularly special” among tax mechanisms, but that’s not really true. We currently have a broad range of “salience” in the federal taxes that are imposed. What is especially problematic from a public choice perspective in the current system is that the “hidden” taxes appear to be disproportionately borne by wage earners. Therefore, as wealth increases (generally), one’s sense of being taxed increases more sharply than one’s actual tax burden. That is, (again, generally) rich people think they’re more taxed than they are and working people think they’re less taxed than they are. That’s a distributional public choice problem, and I think it should be clear why a distributional public choice problem would do more damage to the political process than a general one.

The “hiddeness” of wage-earners’ taxes is generally caused by two phenomena. First, wage-earners pay flat payroll taxes (generally social security and medicare), which is 7.65 percent of their income right out of their paycheck. This largely invisible (as evidenced by the fact that some of your commenters said that the bottom half of the country pays no federal tax, when in fact the vast majority of that bottom half pay a relatively steep flat tax on their very first dollar earned). But it’s not completely invisible, because at least it shows up on their paychecks and decreases their stated wage. But payroll taxes are even more invisible than that because employers are paying an additional 7.65% on their employee’s wages that doesn’t even get reported to them. There may be some argument about what the incidence of that tax is, but the consensus is that it falls at least substantially on labor. In other words, every employee in the country pays a flat 15.3% tax on their first dollar earned. Commentators often ignore it or are confused about it (especially conservative commentators who want to claim, falsely, that working people don’t pay federal taxes). Oops, I forgot to mention that it’s not a flat tax. It’s a regressive tax, because (at least for the social security component) once you earn above a ceiling ($106,800) the tax disappears.

The second factor that “hides” the taxes paid by working people is withholding. Because of withholding, wage earners often experience taxes as a refund, rather than an expense. When it was introduced, the biggest argument against withholding was exactly the argument you are making — that it’s a public choice problem to hide taxes. Many would argue that the biggest reason why our tax system can work at all is because of the withholding system. So, if you’re afraid of hidden taxes, the game has already been played (at least for the vast majority of Americans who are employees). Then the question if you’re still committed to “visible” taxes is whether a VAT is more or less hidden that withheld wages.

Thus, there’s currently a distributional problem with the federal tax system, because high-income taxpayers generally pay visible taxes, while low/middle-income taxpayers generally pay invisible ones. Because a VAT taxes only consumption, and exempts income from capital, it is yet another “hidden” tax primarily on wage earners, exacerbating the distributional salience problem that already exists in our current system. But if you think that the point of an income tax is to roughly measure “ability to pay” (as I and other liberals generally do), then you will be unhappy with a VAT not primarily because it is more or less “hidden” than current federal taxes, but because it actually increases the tax burden on wage earners while decreasing the burden on the wealthy. My view is that because a VAT excludes from tax income from investments, an income tax does a better job of tracking “ability to pay,” which is the cornerstone of an equitable tax system. But that discussion is well beyond the scope of your post.

All that to one side, though, what I think makes your post interesting to think about has to be the sharpness of the opposition of the “public choice” argument to the “economic” one, because your readers may be drawn to both. The way you cast it, the public choice argument seems infuriating to economists (or anyone who cares at all about economics), as you point out, because (generally) everything that makes a tax “efficient” also makes it less visible. And so, under the public choice argument – assuming that you thought that government spending is bad – the best tax would be the least efficient one. The more a tax changed market choices, the more it would “sting” (by thwarting one’s desires) and therefore, the more likely it would be to encourage the populace to reduce taxes. That should be true of spending programs too, by the way. If you’re opposed to government spending, then the worst possible thing is efficient government spending that really makes people’s lives better. You should be promoting wasteful spending that messes people up as much as possible. That is to say, if you’re looking for a revolution, make the current system work as badly as possible.

But on reflection, the economic argument and the public choice argument are not actually so opposed. Because, according to the economic argument (at least the welfarist economic argument), the government should do what it is most efficient for it to do to provide for the greatest happiness. So, if many things are public goods, for example, which are likely to be undersupplied by the market, then as an economist, you should not be for reduced government spending, but for spending sufficient to supply those public goods. You should be for exactly the right amount of government spending. It’s not a foregone conclusion, then, that we have excessive government spending, though we may be spending on the wrong things. Then you have a much more nuanced “salience” question. Taxes should be exactly “hidden” enough to permit people to make the right choices about how much government spending there ought to be. You have a problem of baseline, though. What is “the right” amount of hiddeness?

Probably the central question for hidden taxes is whether they might enable government to raise revenue without also distorting the economy. If so, I argue, they have the potential to radically refashion the architecture of redistributive government. But, as I also show, whether that is true turns on the cognitive mechanisms that might permit taxes to go unnoticed. For example, if hidden taxes are caused not by rational ignorance but by cognitive shortcomings, then it is likely that the burden of a hidden tax will be borne disproportionately by poorer taxpayers, and vice-versa. Thus, I attempt to integrate with the tax literature some recent developments in our understanding of bounded rationality in consumers more generally.

Althouse notes the following, in a discussion of Megan McArdle criticizing a book while only half-way through it:

A rule against criticizing books you haven’t finished would overprotect authors, since you shouldn’t finish a bad book, and it would also underprotect authors, since the critics wouldn’t disclose that they hadn’t read the whole thing.

I think Althouse is right; she goes on to talk about the difference between blogging and a formal book review, and I think that’s right as well — although there are blogs and there are blogs when it comes to books, given the general collapse of the formal book review as a publication in newspapers.  Blogs are a large part of the critical review commentary still left standing.  And yet blogs, including my own blog posts, have this troubling tendency to switch back and forth at will (and too often at the intellectually laziest point, I have to say in my own case) from a certain formal rigor into deliberately informal, and suddenly indistinct and chatty mode that somehow never quite gets to the deep insight, or more precisely, the argument for the deep insight.

That’s about criticizing, though.  What about just plain reading?  The older I get, the fewer books I finish, and the more I read highly selectively — fast forward set on high.  This is either the getting of wisdom — or the gradual shutting down of (what to call it?) one’s social and engagement functions as one gets closer to in-turnedness of dying, the inability of the aging to take in new stuff because we are too occupied trying to process the accumulation of the previous decades.

But I am also reminded of that book from a couple of years ago, which I did read cover to cover, albeit quickly, by the literature professor in Paris who admitted that he hadn’t actually read nearly anything, including nearly everything in the canon for his classes.  How to Talk About Books You Haven’t Read. Pierre Bayard.  He offered not just a tuquoque defense that no else actually read the things they claimed to read, either — but a ringing defense of not reading for its own sake, while still being more than willing to discuss it.  Including the argument that, at least in literature, since it was the argument, the criticism, the interpretation on its own that mattered, the actual text got in the way and also offered contra but frankly irrelevant bits.  The text at issue would only muck up the purity of the critical argument, I think that was Bayard’s point.

On August 19th, Justice Kennedy gave an address that included an interesting passing remark about the role of blogs. Justice Kennedy was talking about how law review case comments generally come out too late to be of use to the Court (especially in the context of deciding whether to grant certiorari in a case). As a result, when Justice Kennedy asks his clerks to look to see what the law reviews have said about a particular case, there isn’t any commentary yet. Justice Kennedy adds: “I’ve found, what my clerks do now, when they have interesting cases — They read blogs.” 

Thanks to Shon Hopwood for the link.

Three important voices in national security law — Jack Goldsmith, Bobby Chesney, and Benjamin Wittes — have launched a new blog: LAWFARE: Hard National Security Choices. There’s a bunch of interesting content up already. Here’s the intro to the blog from Ben’s first post on Wednesday:

Welcome to Lawfare, a new blog by Robert Chesney, Jack Goldsmith, and myself. For those readers familiar with our prior writings, our subject will come as no surprise: We mean to devote this blog to that nebulous zone in which actions taken or contemplated to protect the nation interact with the nation’s laws and legal institutions. We will, I am sure, construe this subject broadly to include subjects as far-flung as cybersecurity, Guantánamo habeas litigation, targeted killing, biosecurity, universal jurisdiction, the Alien Tort Statute, the state secrets privilege and countless other related and not-so-related matters.

We have all written extensively in this space, both individually and collectively. Our purpose in creating this blog is to create a collective outlet for shorter writing that is more responsive to the ongoing events.

The name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others. This latter sense of the word—which is admittedly not its normal usage—binds together a great deal of our work over the years. It is our hope to provide an ongoing commentary on America’s lawfare, even as we participate in many of its skirmishes.

If you’re interested in national security law, this new blog promises to be a must-read.

John McWhorter has a good column at Root urging African-Americans to make a priority of opposing the War on Drugs {[HT: here]:

The Reclaim the Dream March “recaptured the flavor” of the March on Washington. But it isn’t an accident that this brings to mind popping an old piece of gum from the underside of a desk into your mouth to see how much “flavor” might still be left in it.

The 1963 March on Washington, of course, was a signature and significant event. The question, however, is what the value is of trying to do it again. There comes a point when these marches are gestures rather than actions. And that point has come....

Every time I see one of these marches or forums covered as significant, what occurs to me is that there is one thing we should all be focused on instead. It is, of all things, the War on Drugs. The most meaningfully pro-black policy today would be a white-hot commitment to ending its idiocy.

The massive number of black men in prison, described on The Root site here, stands as a rebuke to all calls to “get past racism,” exhibit initiative or stress optimism. And the primary reason for this massive number of black men in jail is the War on Drugs.

The War on Drugs destroys black families. It has become a norm for black children to grow up with their fathers in prison and barely knowing them.... 

In this post, I discussed in greater detail how the War on Drugs undermines family values in poor black communities. As I noted there, some 60% of all incarcerated nonviolent drug offenders are black males, hundreds of thousands in all. This figure is not due solely or even primarily to racism. But even if conducted with the best of intentions, the War on Drugs has had a devastating impact on blacks even more than on other groups. 

How Appealing links to this Seventh Circuit decision, which includes very interesting opinions by Judges Easterbrook, Posner, and Wood (all among the most respected federal appellate judges in the nation, and all former University of Chicago law professors).

Here’s the issue: American courts sometimes have to decide questions of foreign law. In the overwhelming majority of such cases, this has nothing to do with the controversial use of foreign constitutional law as persuasive authority in making American constitutional law decisions. Instead, it involves courts interpreting contracts that provide that they are to be entered into under foreign law, interpreting contracts entered into in foreign countries, making decisions about torts committed in foreign countries, deciding whether parties married in a foreign country (often long before they came into the U.S.) complied with the marriage law of that country, deciding whether a foreign money judgment that is being enforced in the U.S. complies with the law of the foreign country, and so on. (This is an oversimplification; not all such cases always require the application of foreign law, but many do.) 

This is quite common, and sure to get more so as the world gets still more commercially interconnected. And it’s practically inevitable, at least unless we choose to dramatically handicap our own citizens in transnational business transactions. (We could, for instance, have a rule that says that any lawsuits based on contracts that call for the application of foreign law must be filed in foreign countries, but that would often me extra time and expense for American litigants, and a gain of a home-field advantage for their litigation adversaries.) 

The question is: How are courts to determine what foreign law is, especially when it’s in a foreign language? The Federal Rules of Civil Procedure allow courts to rely on statements by experts in foreign law. But Judges Easterbrook and Posner argue that, for the law of many prominent countries (such as the French law involved in this dispute), reliance on experts is bad practice — it’s better for judges to consult English-language translations and treatises, which will be largely relatively objective, rather than the statements of experts hired by each party:

Trying to establish foreign law through experts’ declarations not only is expensive (experts must be located and paid) but also adds an adversary’s spin, which the court then must discount. Published sources such as treatises do not have the slant that characterizes the warring declarations presented in this case. Because objective, English-language descriptions of French law are readily available, we prefer them to the parties’ declarations.

Judge Wood disagrees, arguing that judges are too likely err in interpreting foreign law, again especially when it is in a foreign language:

Exercises in comparative law are notoriously difficult, because the U.S. reader is likely to miss nuances in the foreign law, to fail to appreciate the way in which one branch of the other country’s law interacts with another, or to assume erroneously that the foreign law mirrors U.S. law when it does not.

This strikes me as a very interesting and important debate, though one on which I have no informed opinion (except to say that, unsurprisingly, both sides make very good points). Note that the debate generally focuses on the laws of major non-Anglosphere countries that have a roughly civil law (i.e., European continental law) legal background — France, Germany, Argentina, and the like. When the country is England, Canada, Australia, or New Zealand, I expect that most judges would tend to do their own research, both because there is no language barrier and because the legal systems of the countries are in many ways quite similar. When the country is, say, Congo or even Thailand, there is probably little English-language commentary on the country’s law, and reliance on experts would not be that controversial. I expect this would also be so as to, say, Saudi law; Saudi Arabia is economically quite significant, but its legal system is so different from ours in many ways that I suspect most judges would want to hear from experts (even party-supplied experts) on the subject. I don’t know what Easterbrook and Posner would say about Chinese law, which is also radically different from ours but is the subject of a good deal of written English-language commentary.

I also didn’t see anything in the opinion about the possibility of ostensibly neutral court-appointed experts; I know there’s a general debate on the utility of such experts, but I’d love to hear what others who are more acquainted with the issue — especially in the context of foreign law — can say about it.

Others have pointed out various flaws in Jane Mayer’s New Yorker article attacking Charles and David Koch for their donations to various libertarian causes. But I think it would be helpful to outline her three biggest errors in one place: the false claim that the Kochs’ funding of libertarian organizations is somehow secret; the assertion that it it is part of a “pro-corporate agenda”; and the argument that the Kochs’ donations “dovetail with their economic interests.”

I. The Myth of a “Covert War.”

The title of Mayer’s piece is “The Covert Operations: The Billionaire Brothers Who are Waging a War Against Obama.” Throughout, she tries to insinuate that the Kochs’ efforts to fund various libertarian organizations are somehow secret or deceptive. In reality, there is nothing hidden about the Kochs’ efforts. They have openly funded a variety of libertarian and free market causes since the 1970s. The Kochs openly helped found the Cato Institute — the first prominent libertarian think thank — in 1977. David Koch was the Libertarian Party candidate for vice president in 1980, and they have publicly contributed to numerous libertarian organizations since then. Their role in doing so is open and well-known, and has been chronicled by many previous writers. In the late 1970s, conservatives at National Review worried that Koch funding would push libertarians away from anti-communism towards foreign policy isolationism — one of many indications that their role wasn’t hidden even back then. Brian Doherty has a length discussion of the Kochs’ efforts in his comprehensive 2006 history of the libertarian movement.

There is also nothing secret or unusual about the fact that the libertarian organizations the Kochs contribute to oppose many of Obama’s economic policies. Given the vast expansion of government entailed by Obama’s agenda, it would be surprising if libertarians reacted in any other way. In the same way, we (including most of the organizations the Kochs contribute to) also vocally opposed the GOP’s massive expansion of government in the Bush era (e.g. - this book by Cato’s Michael Tanner, and here). In sum, it is no secret that that Kochs support various libertarian organizations, and it is also no secret that these organizations are highly critical of Obama’s economic policies — often on much the same grounds as they previously attacked Bush’s.

Mayer cites some of this publicly available history in her piece. But her constant rhetoric of secrecy and covertness obscures the true nature of the Kochs’ role. She tries to make the perfectly normal activity of philanthropists openly giving to causes they support for ideological reasons seem shady and conspiratorial. “Covert Operations” makes for a better headline than the more accurate “Libertarian Philanthropists Continue Longstanding Pattern of Openly Donating to Causes they Support.” 

II. The Myth of a “Pro-Corporate Agenda.”

Mayer claims that the Kochs’ support of libertarianism is part of a “pro-corporate agenda” intended to help business interests. Frank Rich makes an even cruder version of the same charge in his recent New York Times column. This is based on a simplistic and highly inaccurate equation of free markets with the interests of big business. 

In reality, as economists since Adam Smith have often pointed out, business interests often benefit from government intervention. Large corporations routinely lobby for government subsidies, government contracts, regulations that suppress their competitors, tariffs that exclude foreign competition, porkbarrel spending, the use of eminent domain to transfer property to themselves, and so on. Most recently, big business interests have benefited from the bailouts of the banks and auto companies, and health insurance companies benefited from the “individual mandate” in Obama’s new health care bill, which is likely to give them considerable additional business. I criticized the equation of free markets and “pro-business” agendas in more detail here and here.

The Kochs and other libertarians could reasonably be accused of having a “pro-corporate” agenda if they supported government interventions that benefit big business even as they opposed those that do not. That is in fact the position taken by most business lobbyists and large corporations. The charge might have some bite if they simply ignored pro-corporate government interventions, criticizing only those that seem to help the poor. In reality, however, libertarians — including the Koch-supported organizations — have vocally and consistently opposed virtually every pro-corporate government intervention since the libertarian movement began. Libertarians were among the leading critics (sometimes almost the only critics) of all of the interventions I catalogued in the previous paragraph. 

III. Do the Kochs’ Donations “Dovetail” With Their Business Interests?

To her credit, Mayer admits that the Kochs are, at least in large part, motivated by ideological commitment rather than narrow self-interest alone. But she also contends that their donations and ideology “dovetail with the brothers’ corporate interests.” It is undoubtedly true that there are some issues where libertarian policies would benefit the Kochs financially. That, however, is hardly compelling evidence. Libertarianism is an ideology with implications for a wide range of policy issues. Some of these are likely to correlate with the business interests of any large business just by random chance. Had the Kochs funded a wide range of liberal organizations instead, Mayer could have easily found some correlations with their interests too. As Todd Zywicki points out, many of the libertarian causes the Kochs support have no conceivable connection to any financial interest of theirs (e.g. — drug legalization, curbing police abuses, school choice, increasing protection for the rights of criminal defendants). 

Even more telling, some of these causes actually cut against the Kochs’ interests. Todd mentions the case of the auto bailouts. Government subsidization of the auto industry surely benefits oil companies such as Koch Industries. An example from my own field of expertise is the protection of property rights against eminent domain. Oil companies often benefit from takings (see here and here for recent examples). Yet the Cato Institute, the Institute for Justice, and many of the other groups the Kochs fund are among the leading critics of eminent domain. Cato’s Regulation magazine even recently published an article urging property rights activists to focus more attention on oil company takings (the article also notes that Institute for Justice-supported reforms have helped curb such takings already, but argues that IJ has not focused on the issue enough). 

These three errors are the most important flaws of Mayer’s piece. But there are also various smaller ones. For example, as Ed Lasky shows, Mayer uncritically and incorrectly accepts claims that liberal philanthropist George Soros only supports causes unrelated to his economic interests. I don’t agree with Lasky’s assertion that Soros’ giving is mainly motivated by a desire to “use his billions to make more billions by tapping his friends in high places in the Democratic Party.” Just as the Kochs support many libertarian causes unrelated to their interests, Soros supports many liberal causes unrelated to his. But it’s clear that some of the causes Soros supports are also likely to benefit him. Mayer also incorrectly describes the Bill of Rights Institute (for which I have done some consulting work) as a group that “promotes a conservative slant on the Constitution.” 

Much of Mayer’s article covers issues that I’m not familiar with. So I don’t know whether those parts are accurate or not. But her errors on subjects that I do know something about don’t fill me with confidence in the reliability of the rest of her work.

CONFLICT OF INTEREST WATCH: I am an adjunct scholar at the Cato Institute (an unpaid position). I have also done work for the Institute for Justice, Cato, and a couple other organizations that the Kochs donate to. Much of this work was pro bono, while in some cases I received small payments (Gven the vastly greater amount of research funds available from liberal foundations, I could almost certainly have gotten as much or more from liberal funders had I been a left-wing academic). I suppose I should also mention that I have published articles in journals and spoken at conferences sponsored by organizations that got some of their funding from George Soros. 

UPDATE: Some commenters seem to be under the impression that libertarianism is “pro-corporate” so long as corporations derive any significant benefit at all from libertarian policies. By that standard, of course, almost any ideology short of socialism is pro-corporate. After all, many corporations benefit from various liberal, conservative, and moderate policies too. A consistent “pro-corporate agenda” cannot merely be one that benefits some corporations sometimes. It would favor corporations across the board, including in cases where their interests are best served by government intervention. To put it a different way, one could use the same kind of “logic” to argue that the ACLU’s agenda is “pro-criminal” on the grounds that a significant number of criminals are likely to benefit from the ACLU’s efforts to limit police abuses and increase procedural protections for suspects. 

The comment thread to Monday’s post, The Ultimate Legal Blog Comment, is now at 585 comments. Many are by “Mick” himself, who left the original comment on Jonathan Turley’s blog. And it’s still going: It was at 583 comments when I started writing this post, and I had to update the number when I was finished.

I think there’s a lesson about legal education in that comment thread. One major skill taught by legal training is how to put sources of legal meaning in context. To the new law student — or, as pertains here, to the blog commenter who is new to legal analysis — all sources of meaning seem equally valid. They’re all “law.” Dicta from a footnote in an 1912 state appellate court decision has the same force as yesterday’s U.S. Supreme Court majority holding. After all, they’re both there in black and white. 

One of the skills learned by studying law is how to put those sources in context. That training often emphasizes the role of different sources of law in ascertaining meaning — the role of text, of analogy, of precedents, of higher court versus lower courts — and how to evaluate the significance of those sources for or against legal positions. To be clear, I don’t mean that there is some magic to formal training like attending law school. A person could teach himself the same thing by studying on his own. But in general, the more you know about law, the more attuned you are to the role of context in evaluating the significance of particular legal sources.

That doesn’t mean that legal training always leads to agreement as to a “correct” answer. Obviously it does not. Sometimes the sources of law are roughly balanced, and in other cases different people will value different sources of law more or less than others. But recognizing the context of legal sources is often hugely important in making progress towards recognizing that some legal arguments are weak and some are strong. 

That matters here because it’s the absence of context-awareness that can produce endless Internet debates like the 585-comment Ultimate Legal Comment thread. Without context, all evidence becomes absolute. A snippet becomes undeniable truth — truth that surely everyone should be able to see. That makes it impossible to change any minds, and leads to hundreds upon hundreds of comments.

UPDATE: This morning’s comment from Mick about the debate in the comment threads here is another classic:

NONE of you have proven me wrong. Shame on you in the supposed intelligista for allowing the Usurpation, and destruction of the USC. The truth sets me free, and the viciousness of the Alinskyan attacks against my character, intelligence, etc, is telling. It is desperation. Dual Citizenship at birth makes Obama INELIGIBLE as a NON Natural Born Citizen. All you supposed lawyers that think a pic on a website is proof of ANYTHING should be ashamed, but regardless, his FOREIGN FATHER alone makes him INELIGIBLE. 

Again, awesome. Fraud!!!

I assume most law review staffers are already doing this, but in case you aren’t, let me suggest it: Many old legal books are available in full text on Google Books, and many more available in HeinOnline’s Legal Classics database and Gale’s Making of Modern Law database. (My sense is that most law schools have HeinOnline and Gale subscriptions.) And since all these services show you photographic images of the book pages, you don’t have to worry about transcription errors, though of course you do need to confirm that you’re looking at the right edition of the book.

Using these services can save you the time and effort of pulling the volumes off the shelf, recalling borrowed volumes, or doing Inter-Library Loans. Plus you can use them when you’re away from your law library, for instance over the summer or winter breaks, or if you’re finishing up a cite-check at home and you realize that you missed some source. And if there’s a page number error, you can search the source to see if you can find the quoted passage elsewhere in the book.

These services are of course important for doing the research in the first place (see this post, which points to other sources as well). But here I wanted to stress their value for cite-checking.

From In re Wean (Tex. Ct. App. Aug. 31), which reversed a trial court finding that a father engaged in family violence against his children, and a protective order based on that finding. The opinion discussed many matters, and I can’t do full justice to it here. But I thought I’d quote a few passages:

1. Religious Beliefs:

Also at the hearings, there was evidence regarding Josh’s religious beliefs. According to Sarah, Josh believed that children were born sinful, wicked, and willful and needed their will to be broken in order for them to be obedient, and such message was preached at their church. Sarah testified that Josh believed spanking is mandated by the Bible and she needed to follow his directives regarding discipline because he was the head of the household. She alleged that Josh believed women were created for men, that their roles were unequal, and that women do not need education beyond high school because their “only role” is as wife and mother. According to Sarah, Josh pressured his boys to pray and read the Bible daily. Sarah alleged that Josh’s beliefs were evidenced by publications available from Vision Forum Ministries, the Christian company for which Josh was the chief financial officer. One of the many books available for purchase on the Vision Forum website, which was admitted into evidence, instructed parents to spank their children in the privacy of the home and stated that spanking a disobedient child is required by God and is an act of love. A handful of articles posted on the website were also admitted into evidence, which articles stated that the husband and father is head of the household and that man has headship over woman....

Regardless of whether Sarah’s description of Josh’s beliefs is accurate, ... such beliefs would not constitute evidence of family violence. We recognize that concepts such as favoring male leadership or promoting corporal punishment could conceivably be manipulated to hide or justify family violence, support an unhealthy balance of control in a marital relationship, or repress a victim’s attempts to seek protection. However, there is no evidence in the record that the beliefs–by themselves–make the existence of family violence more likely. We cannot agree that the fact a parent believes that a person is born with a “sinful nature,” that spanking as a form of discipline is endorsed by the Bible, or that the husband is the “head” in a marital relationship is thereby evidencing to CPS or the judicial system that such parent engages, or is likely to engage, in violence or abuse against his or her children. We conclude that the trial court’s finding of family violence does not find support in the evidence regarding Josh’s or his employer’s religious beliefs.

Continue reading ‘Conservative Christian Religious Beliefs, Use of Moderate Corporal Punishment, High Sex Drive, and Interest in Wife’s Private Areas Do Not Show Family Violence’ »

Don’t try this at home, via 60 Minutes.

According to Jane Mayer, this makes him a corporate tool:

“Grover Cleveland” at Pileus offers these thoughts on James Lee:

James Lee (the Discovery building hostage taker and crazy environmentalist) no more represents left-wing environmentalists than do violent “right-wingers” (such as Timothy McVeigh) represent those people who are conservative, libertarian, or anti-government.  I can see conservative demagogues using Lee to bash left-environmentalists, but I think this is quite unfair even if liberal/progressive demagogues have done similar things to those of us who are largely opposed to the actions of the federal government and the recent trajectory of American politics.

Of course, it is fun to note that Lee was apparently inspired by Al Gore’s loony manifesto.  But there is no straight line from Gore to hostage taking.  Lee and other environmental activists who have turned to personal violence are the extreme (pun intended) tail of the distribution in the environmental movement.  So let’s keep our eye on those who want to, via the political process, use the coercive power of the state to infringe on our liberty in the name of the environmental faith – and avoid demagoguery related to individual nuts.