Category: General Law

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A TRC for the Bush Years?

Senator Patrick Leahy proposed yesterday in a speech at Georgetown that we open a truth and reconcilliation committee to bring to light our engagement in acts of torture under the Bush administration. While the impulse to revelation is laudible, I am not persuaded that this is a case for a TRC.

Foremost, the conceit of a TRC is that those who participate are granted amnesty. That grant of amnesty may be an accommodation to reality. Frequently in cases where TRC’s are used it is practically impossible to prosecute and punish everyone responsible for acts of atrocity; and in light of this justice gap, there is a political decision to forego punishment both because any prosecutions would be selective and because a TRC can achieve a more expansive account of the past than would be provided by a smattering of individual criminal trials. Amnesty may also have a more normative bent, recognizing that many of those who participated in past abuses did so out of a justifiable sense that what they were doing was right, or at least not illegal.

It’s hard to see the first justification for a TRC in the case of torture and other human rights violations perpetrated under the Bush administration. As a matter of fact, the numbers of those closely engaged as primaries or accessories in acts of torture are unlikely to be so large that it is impossible to investigate thoroughly and, if appropriate, prosecute all cases. Similarly, when viewed in light of the pervasive cultures of abuse addressed by the TRC in South Africa, say, it is hard to make the case that acts of torture committed by or with the support and assistance of government agents were, in all respects, “legal” from the point of view of the perpetrators. Agents of Bush policies might claim that they got legal advice to the effect that what they were doing was legal, but bad legal advice is seldom an excuse in the criminal law and, without more, it is not clear to me that the fact that the attorneys in question worked for the President makes a material difference. Suggestions that the President himself may have endorsed acts of torture does little to clarify matters unless one accepts Nixon’s view that what the President does is legal simply because he does it. I do not.

During last night’s press conference, President Obama fielded a question about Leahy’s proposal from Sam Stein of the Huffington Post about Leahy’s proposal. His sensibe answer, consistent with representations he made during the campaign, was that “My view is also that nobody is above the law, and if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen.” Bravo; which makes all the more unhappy the fact that Obama’s Department of Justice has taken the baton from the Bush Administration in obstructing efforts by torture victims to seek justice.

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After A-Rod, When (If Ever) Are Assurances of Confidentiality Credible?

I recently received a request from a reputable institution to participate in a survey on a range of education issues. I generally try to support such efforts, so I began to work my way through the survey. At the outset, the survey form asked for my name and affiliation so they could check me off the list — but assured me that my identity and institutional affiliation would be “maintained in confidence,” that any publication of data from the survey would be “conducted in such a way as to protect the confidentiality” of my identity and affiliation, and that the “results from this survey will be used solely for academic research purposes.”

Up until a few days ago, I wouldn’t have given this a second thought. And, in fact, I went ahead and completed the survey because its subject matter was far from sensitive and I have no reason to doubt the sincerity of the surveying institution — but not because I thought the confidentiality promises were particularly meaningful. The leaked results of Alex Rodriguez’s supposedly confidential drug tests now make me wonder whether any such assurances of confidentiality are worth the ink (or breath) it takes to communicate them. In 2003, Major League Baseball tested its players for performance-enhancing drugs, but promised them that the results would be kept not only confidential but also anonymous (i.e., that test samples would not be associated with players’ names) and that the program’s objective was solely to assess whether the number of players using performance-enhancing drugs exceeded a certain threshold. (if the number of positive test results exceeded 5% of those tested — and it did — then a full testing program with penalties for positive results would be implemented in 2004 — and it was). But the Rodriguez experience shows that there’s not much a trusting test-taker (or survey-completer) can do to enforce such blithe assurances of confidentiality– and even less once the results have actually been leaked.

(Don’t get me wrong — I’m not feeling terribly sorry for A-Rod. Having grown up in Seattle, I’m a fervent Mariners’ fan who remains bitter that Rodriguez (and many other great players) left before we could get to the World Series. If you’ve been following professional sports recently, you have a general idea of just how poorly Seattle sports fans are feeling these days; last year the Mariners lost over 100 games, the Seahawks finished 4-12, and the Sonics . . . .oh, wait, Seattle doesn’t have a professional basketball team any more).

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Gender and Pay

Pay discrimination concerns have recently generated a flurry of legislative activity. The new Congress quickly passed the Lilly Ledbetter Fair Pay Act, while the Paycheck Fairness Act awaits Senate consideration after House approval. Not everybody, however, is convinced of the need for such legisation, as a study commissioned by the Bush Administration’s Department of Labor (and released days before President Obama’s Inauguration) repeated the contention that pay differentials are primarily the result of gender-based differences in investments in human capital development — e.g., that women on average are more likely than men to choose careers that maximize flexibility in accommodating family caregiving responsibilities at the expense of employment hours and advancement.

But this reminded me of a remarkable study released last year that examined the wages of transgender people – individuals who change their gender, typically with hormone therapy and surgery – to learn more about the relationship between gender and workplace experience while holding human capital investments constant. The authors found that workers who transitioned from male to female (MTFs) experienced “significant losses in hourly earnings,” while those who transitioned from female to male (FTMs) experienced “no change in earnings or small positive increases in earnings from becoming men.”

More specifically, authors Kristen Schilt and Matthew Wiswall concluded “that while transgender people have the same human capital after their transitions, their workplace experiences often change radically. We estimate that average earnings for female-to-male transgender workers increase slightly following their gender transitions, while average earnings for male-to-female transgender workers fall by nearly 1/3. . . .These findings suggest that regardless of childhood gender socialization and prior human capital accumulation, becoming women for MTFs creates a workplace penalty that FTMs do not generally encounter when they become men. And, while MTFs may benefit from being men at work before their gender change, they cannot always take this gender advantage with them into womanhood. We view these findings as evidence that the gender gap in workplace outcomes does not entirely reflect omitted variables, such as unobserved human capital. Rather, the change in posttransition MTFs’ earnings suggests that the labor market is not gender neutral.”

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Constitutional Law as Computer Science

Within universities there is a lot of talk about gender distribution in various academic specialties. It is well known, for example, that there are many more men in the field of computer science than there are women. Indeed, the gender gap appears to be widening. I wonder about legal specialties? Which fields have the largest gender gaps? It would be interesting to know the figures in legal practice as well as among law professors. It would also be interesting to know the numbers with respect to the most prominent people in particular fields.

In my own field, Constitutional Law, my impression, is that among the most prominent scholars there are far more men than women. (Here is an exercise: write down the ten best-known Constitutional Law professors: how many are women? And another exercise: how many prominent Constitutional Law professors who are women can you name?) There seem to be more men than women on panels at high-level conferences. Men seem to be quoted more often in national newspapers. More men seem to publish books with prestigious university presses than do women. And so on.

Some will say that women are not invited to appear on panels (and excluded from other opportunities as well) and that’s why the men are prominent. My impression, though, is that conference organizers at least try very hard to invite women as panelists. Women who have achieved a measure of prominence in the field are in high demand at events and often have to say no to many opportunities. Others will say that women do not get hired to teach in Constitutional Law in the same numbers as men. Again, though, my impression is that many schools aggressively try to find promising women candidates. If my impression about the gender distribution is right, the causes of the distribution would require research.

How about other fields of legal academia? Where are the largest gender gaps likely to be found? And what are some hypotheses about their causes? One might also look at sub-specialties within fields. (Do women work more on Equal Protection issues than on federalism questions?) It seems to me that somebody with some good statistical skills could generate a a study gender distribution in law and seek to test some hypotheses about its causes. Such a study would contribute to the existing literature done in other academic disciplines.

Finally, I should say that whether gender clustering in law (or other fields) is bad, good, or neither is a separate issue. People will formulate different views on that issue once the evidence is in.

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Obama v. Cognitive Bias

The New York Times recently reported on a study “showing that a performance gap between African-Americans and whites on a 20-question test administered before Mr. Obama’s nomination all but disappeared when the exam was administered after his acceptance speech and again after the presidential election.”

Earlier researchers had “assembled university students with identical SAT scores and administered tests to them, discovering that blacks performed significantly poorer when asked at the start to fill out a form identifying themselves by race. The researchers attributed those results to anxiety that caused them to tighten up during exams in which they risked confirming a racial stereotype.” Reviewers of the new study theorized that “Obama’s election could increase the sense of competence among African-Americans, and it could reduce the anxiety associated with taking difficult test questions.”

This reminded me of an earlier study that found that individuals’ implict biases shift significantly when they are immersed in situations that provide frequent exposure to admired members of traditionally stigmatized groups (e.g., famous African Americans or older people) and disliked members of traditionally valued groups (e.g.,infamous whites or younger people).

This involved use of the Implicit Association Test (IAT), which uses an individual test-taker’s response speed to assess the relative strength with which he or she associates certain targets with positive or negative attributes. For example, participants are typically asked to “classify stimuli representing two target concepts (e.g., flowers and insects, or Black and White groups) and evaluative attributes (e.g., good and bad words) using two designated keys. When the IAT is used to measure racial attitudes, people typically respond more quickly and easily if pleasant attributes share the same response key with White racial stimuli and unpleasant attributes share the same key with Black racial stimuli than vice versa.”

But the authors found that test-takers whose initial performance indicated a tendency to associate black targets with negative attributes (and a tendency to associate white targets with positive evaluations) displayed significant less implict bias of that sort after repeated exposure to pictures of admired African Americans (e.g., Dr, King) and disliked whites (e.g., Jeffrey Dahmer). Similarly, the authors found that test-takers’ automatic preference for younger over older people declined after encountering images of admired older and disliked younger individuals.

Together, these studies make me wonder about the effects we might expect now that pictures of President Obama are prominently displayed throughout the media as well as in government offices throughout the country . . .

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Little Interest in Global Accounting (IFRS)

globe.jpgThe Securities and Exchange Commission under prevoius Chair, Chris Cox, spent considerable resources in a quixotic plan to switch the US from its own accounting standards to international ones. Right before he left office last month, in mid-November, Cox had the SEC issue a release for public comment concerning a proposal to compel the switch by 2014 (calling the proposal a “Roadmap”).

Not surprisingly, few constituents consider this a good time to make any such switch or even a good time to comment on the proposal. Companies and investors have far more important matters to attend to than this bit of folly on which the previous SEC Chair spent so much time the past two years. Many comment letters on the proposal forthrightly declare that companies find it terribly inconvenient to comment now and that they need more time to consider such a fantastic proposal.

A few companies somehow have found the time to explain numerous concerns and problems, many of which I address in my newly-published article in North Carolina Law Review, which the SEC, under Chair Cox, simply overlooked or discounted.

Illustrative are the following excerpts from the comment letter contributed by Marriott, dated Monday. (References to IFRS are to International Financial Reporting Standards and to IASB are to the International Accounting Standards Board, the self-appointed private organization that put itself in charge ot setting global accounting standards.)

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Speech at Work

I’m interested, among other things, in the relationship between speech and equality. The Supreme Court recently grappled with this relationship in the workplace context in Crawford v. Metropolitan Gov’t of Nashville. There the Court considered the scope of Title VII’s antiretaliation protections, which (among other things) bar employers from discriminating against workers who have “opposed” an illegally discriminatory practice. The Court held that workers engage in protected “opposition” not only when they challlenge job discrimination on their own initiative, but also when they respond to questions during an employer’s internal investigation.

Here, the defendant employer asked the plaintiff whether she had witnessed a particular manager engage in any inappropriate conduct, only to fire her after she described several incidents of sexually harassing behavior by the supervisor in question. Rejecting the Sixth Circuit’s view that the statutory meaning of “opposition” refers only to “active, consistent” resistance initiated by the plaintiff, a unanimous Court held that the term also encompasses a plaintiff who simply discloses her views in response to an employer’s prompt. The Court explained its decision as consistent not only with the plain meaning of the statutory language, but also with the antiretaliation clause’s objective of remedying and preventing job discrimination by protecting employees who identify and challenge workplace bias (citing Debbie Brake’s excellent article on employees’ legitimate fears of retaliation).

So far, so good. But what struck me as most interesting — and potentially most troubling — was the concurring opinion filed by Justice Alito and joined by Justice Thomas. They wrote separately to emphasize their understanding “that the Court’s holding does not and should not extend beyond employees who testify in internal investigations or engage in analogous purposive conduct.” Justice Alito emphasized his fear fhat the Court’s decision would “open the door to retaliation claims by employees who never expressed a word of opposition to their employers” — for example, an employee who “expressed opposition while informally chatting with a co-worker at the proverbial water cooler or in a workplace telephone conversation that was overheard by a co-worker” or in a conversation “after work at a restaurant or tavern frequented by co-workers or at a neighborhood picnic attended by a friend or relative of a supervisor.”

But why shouldn’t such speech be protected (assuming that the plaintiff can meet her burden of proving causation: that her employer punished her because of her private opposition)? Workers’ conversations with their colleagues, friends, and family — both at work and away from it — often offer the best opportunity to share information about and test perceptions of possible discrimination, consider options, and gather courage in figuring out what to do about the problem. Indeed, such speech furthers the goals of Title VII’s antiretaliation protections by encouraging employee efforts to identify, address, and deter discriminatory behavior. Justice Alito doesn’t explain his reasoning, other than to note his concern about “the increasing number of retaliation cases filed with the EEOC” in recent years. But this strikes me as an area in which protecting a broader swath of employee speech is key to ensuring workplace equality.

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NYT Columnist Wants Keynes on Steroids

Big G.jpgThe February 1, 2009, print edition of the Sunday New York Times Magazine will run a long opinion piece, The Big Fix, by staff writer, David Leonhardt. The piece, already available on line, reads as an exuberant, unqualified endorsement of a massive and immediate increase in the role and size of the US federal government—as the only solution to current challenges.

The piece offers a few serious reflections and suggestions, including promoting national investment in education. But it is overall both intemperate and naïve. For some, it may even be irresponsible. Certainly, it contains no acknowledgement of any limitations on its diagnosis of current problems or prescription for curing them.

Mr. Leonhardt encourages any kind of immediate large government spending, for any reason. He writes, seriously, that: “Employing people to dig ditches and fill them up again would” be good government policy. He adds: “Even the construction of a mob museum in Las Vegas, a project that was crossed off the [Obama Administration’s] list after Republicans mocked it, would work to stimulate the economy, so long as ground was broken soon.” He concludes: “Pork and stimulus are not mutually exclusive.”

Are these suggestions seriously responsible? Less fancifully, Mr. Leonhardt says that John Maynard Keynes was right, that government, with its “enormous resources,” is the only force that can catapult a nation out of a deep financial crisis. Sensibly, Mr. Leonhardt says, any such catapult must be designed to increase the nation’s economic growth rate in short order so that enough return is generated to repay debts that any bold government spending plan entails.

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Book Recommendation

I just finished reading P. F. Kluge’s Gone Tomorrow. It’s about the life of an English professor in a small liberal arts college in Ohio. Notwithstanding, it’s kind of terrific.

Putting aside the plot, the merits and progress of which I’m not qualified to review, I wanted to highlight a few passages from the book that spoke to me, and to the life of professors generally. In the first,the main character is described:

“Canaris was a sweet man, a gentleman, like everybody hopes to find in a college. He was the one person in the department you could count on for a discussion of books and ideas. There’s all this chat about who we should hire, who we shouldn’t have hired, whether semester courses are better than full-year, how we can be expected to be scholars and teachers and community resources all at once. But these aren’t conversations. These are cages that we all walk around in . . .”

So, I like this in part because it reminds me of one of Paul Horwitz’s great, recent posts, in which he mocks blogs’ obsession with these aspects of professional life. But, generally, it just resonates. So, too, did the following, about teaching a seminar, and the first day of class:

“They thought I was on drugs, wired, talking fast, gesturing nervously. I didn’t register my points patiently, didn’t give them time to laugh at the jokes I cracked. And, after half an hour, I’d come to the end of everything I’d planned to say: item by item, I’d sailed through it all . . . And then I was done. I asked for questions, looking up and down the dumb-struck table. I prayed for questions! No one spoke, it was awful. No questions. Or rather, silent questions: what were they doing there? What was I doing there? And how on earth were we going to get through fourteen three-hour seminars together, from this late summer sweatbox evening to December’s frozen ground and cement-colored sky?”

There’s much more of this in the book, which is basically an extended mediation about the life-cycle of being a professor, and its relationship with writing, ambition, and teaching. Since I suspect that the profession of professing will look entirely different in the next generation, I may be overreading a bit, but I also felt like the book was a bit of an elegy. Anyway, good stuff. Go buy and read it!

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Is Accountability Part of the Change Agenda

As early as April last year, candidate Obama stated his commitment to investigate and, if the facts support it, prosecute those who perpetrated acts of torture during the Bush Administration. In August, the commitment to prosecute if appropriate appeared to remain intact, but days after the election had already fallen from favor, though a commitment to truth appeared to persist.

As the burdens of pragmatism, or perhaps appeasement, have mounted, President-Elect Barack Obama (“PEBO”) appears all but to have abandoned even the possibility of an investigation.

More thoughts after the jump.

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