2

The Law of Geeks

Sorry, folks, this post is not about legal rules of interest to your typical fantasy-loving geek. Go. Elsewhere.

Rather, I am responding to William Saletan’s new column about Transhumanists, who I think share many of the characteristics of the old-time geeks of circus lore.

Saletan is sanguine about the socio/legal/moral implications of permitting Cat Man, Lizard Man, Cyborg Man, and other would-be Ousters to modify themselves with old-fashioned surgery, new fashioned IT, and newer fashioned DNA modification. He offers the following “analogy” paragraph to suggest the logic for permitting this activity:

Why do we shrug at botox, liposuction, and circumcision? Why do we think it’s no big deal if models, actors, and athletes have themselves cut open for professional advancement? Why did tattoos remain illegal in parts of the United States until three weeks ago? Why did we have “ugly laws” that ordered maimed people off the streets? Why did we operate on sexually ambiguous infants to “correct” their gender, often with disastrous results?

These examples raise a number of questions.

First, how strong is the normative argument for constitutionalizing the right to self-sculpt? Does it depend on the type of right? (Tattoo: very expressive/can be religious/little privacy content; Liposuction: less expressive/never religious/some privacy content; Cyborg: not expressive/possibly religious/high privacy content.) Second, would Randy Barnett’s libertarian constitution find a structural limitation to government’s power to prohibit cat man from adding a tail? Third, are there distinctions between self-sculpting methods that we can borrow from, say, consent theory – here, I’m thinking about work on alienability and inalienability. Fourth, how much of our thinking about this problem is distorted by the anarchic future of human-modification almost uniformly painted in sci-fi and other futurist works? Jurists value order uber alles: is the sci-fi anarchic frame leading us to be overly sympathetic to regulation? And finally, is it really “irrational” to make distinctions in legal rules between “gross” and “not-gross” sculpting?

By gross, I take it that Saletan means mutilation of the body that makes you look less like other people. By not-gross sculpting, I take that Saletan means mutilation that makes you look less like other people.* There are good reasons for the law to treat these two intents differently. For one, we might think -rightly or wrongly- that people who don’t want to look like other people, or want abilities that ordinary humans lack, are likely to behave in anti-social ways. Athletes and actors sure do.

So here’s the question: should the law encourage geeks, discourage them, or remain indifferent?

*Other definitions, such as attractiveness or desire to make money, don’t work. The Cat Man, for instance, is very strong on the copyright implications of his image, which is why I haven’t posted it here. So is lizard man. And attractiveness is a very person-specific concept.

3

Update on Plea Bargains and Prediction Markets

In Let Markets Help Criminal Defendants, I wrote that “If I were running a public defender service, I’d consider setting up an online prediction market for the conviction of my clients.” I still think this is a good idea, but someone suggested a serious problem that would have to be remedied for the scheme to be possible.

Right now, prediction markets bets on judicial events, like the conviction of Lewis Libby (whose graph is to the right), pay off at 100 for conviction, and 0 for any other ending of this set of charges, including a plea. This creates noise which renders them useless for criminal defendants looking to see if they ought to plea. That is, as I didn’t fully appreciate before, traders must be estimating the probability of conviction, tempered by the likelihood of a plea – prices are lower than the actual market estimate of a guilty verdict independent of a plea. That is, if the current price of Libby’s “stock” is .40, that means that incarceration is not 40% likely. It means that traders think it is 60% likely that Libby will win at trial, receive a mistrial, obtain a dismissal, be granted a pardon, or plea. I imagine that the likelihood of a plea accounts for a large percentage of this figure.

If traders thought that conviction prices affected defendant behavior, then presumably they’d seek to put in sell orders at prices above those where rational defendants would plea. This would put downward pressure on price and make the entire system useless from defense counsel’s perspective.

For my system to work, you’d have to exclude the possibility of a plea (i.e., nullify all bets if there is a plea). Of course, this still would create some dynamic tension, as bettors presumably would become eager to invest time and trade only as pleas become less likely – near trial, or in jurisdictions, like Philadelphia, where the District Attorney has a no-plea policy. But the resulting prices would be more informative than those offered by the current system.

7

Law Blogs in Other Countries

A reader (Anton) left a (kind) comment about how’s he enjoying what goes on here at Concurring Opinions (aw shucks, thanks!). At the same time, though, he wondered whether such law blogs were a uniquely American phenomenon. His concern – I’m paraphrasing a bit – was that in a smaller country, bloggers might be worried about some amount of professional backlash if they expressed strong political views. He also asked whether there were any law blogs – resembling this one – written by lawyers / academics in other countries. Not about international law – but about local matters. I am wondering whether some of our readers might have suggestions? If so, leave them in the comments, because I know that I’d love to check them out.

6

Grutter redo, part 2

The Court’s acceptance of the two K-12 cases raises so many interesting questions that it is difficult to know where to start. For this post, I’ll quickly recap the facts and ask a question about Justice Kennedy’s potentially pivotal role in deciding the cases. Later posts will address other issues raised by the cases.

Both cases deal with “voluntary” desegregation plans where there is no court order otherwise requiring desegregation. In both cases, the school districts sought to break the link between residential and school segregation. Given the racially segregated nature of the neighborhoods within the school districts, an uncontrolled school choice plan would have likely replicated such segregation within the schools. Instead, the districts sought to both preserve neighborhood school choice and produce more integrated public schools. As a general matter, one school district used race as a tiebreaker. In this district, students were given their choice of schools, race notwithstanding; race came into play as a tiebreaker for oversubscribed schools that were racially imbalanced. In the other district, the school board established black student enrollment ranges. Administrators then used race as one factor among many (residence, school capacity, popularity, student’s choice, etc.) to achieve enrollment within those ranges.

Both the 6th and 9th Circuits upheld these plans, applying the Grutter “student body diversity” rationale to the K-12 context. In this post, I want to focus on just one question: Justice Kennedy’s role. While it is true that two new justices have joined the Court since Grutter, I think it highly likely that both Roberts and Alito will vote to strike these plans down (we can debate exactly how they will do this at a later date). I believe Kennedy’s vote will be pivotal. While it is true that Kennedy dissented in Grutter, essentially arguing that the Law School’s affirmative action plan was not narrowly tailored under the strict scrutiny test, I believe there may be a way to reach him here. But how? Enter Judge Kozinski.

In the 9th Circuit opinion, Judge Kozinski wrote an interesting concurrence. In it, he argued that a heightened form of “rational basis” review ought to apply to the case. His theory was that the Seattle plan wasn’t really an “affirmative action” plan given that it concerned admission to K-12 education. According to Kozinski, it had none of the “defects” associated with other racial preference schemes because “there is no competition between the races, and no race is given a preference over another. That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about the individual’s aptitude or ability.” Thus, from Kozinski’s perspective, strict scrutiny need not apply — and instead a less deferential form of rational basis review would do. Given Kennedy’s position in Romer and Lawrence, will Kennedy be persuaded by Kozinski’s argument? If so, it would allow him to uphold the plans and to distinguish his position in Grutter, where arguably, strict scrutiny had to apply.

11

The Class of 2006

Today is Brooklyn Law School’s Commencement. Congratulations to the members of the Class of 2006. These students started at Brooklyn the same year I began teaching.

Our commencement is always a lavish affair. We take over Tavern on the Green for brunch and then the commencement exercises are held at Lincoln Center. Many of our students are first generation lawyers; a good number are immigrants. Our commencement speaker this year is Richard Goldstone, formerly of the Constitutional Court of South Africa. A preview we got last night at dinner suggests his speech will be a highlight of the day.

In a few months, we’ll have a new crop of 1Ls. Nobody is quite the same after they are done with law school; there are things we all wished we knew before we began.

In that spirit, I ask our readers who are graduating this year or who have already graduated from law school: if you, older and wiser now, could send back in time some advice to yourself in the summer just before you began law school, what advice would that be?

1

Stealing Democracy

stealing-democracy1.jpgMy colleague, Professor Spencer Overton at GW Law School, has just published a terrific new book, Stealing Democracy: The New Politics of Voter Suppression. From the book’s website, here’s a listing of the chapters and a brief summary of each:

INTRODUCTION: THE MATRIX — Politicians use an invisible matrix of election rules, practices, and procedures to shape the electorate and determine political outcomes.

CHAPTER ONE: HOW TO RIG ELECTIONS — Self-serving politicians like Texas Congressman Tom DeLay orchestrate voting district maps to enhance their political power.

CHAPTER TWO: PATCHWORK DEMOCRACY — The United States features over 3,000 different sets of voting rules, and thus your “right to vote” depends on where you live. Voters in favored districts cast ballots quickly while other voters navigate 3-hour lines and antiquated punch card machines.

CHAPTER THREE: DOES RACE STILL MATTER? — Politicians still use race to predict voting behavior and erect barriers that exclude voters of color.

CHAPTER FOUR: NO BACKSLIDING — The Voting Rights Act’s “preclearance provisions” are still needed.

CHAPTER FIVE: LA SOCIEDAD ABIERTA — The bilingual ballot provisions of the Voting Rights Act remain critical.

CHAPTER SIX: FRAUD OR SUPPRESSION? — Those who would condition the right to vote on the showing of a photo ID fail to establish that their proposal will exclude even one fraudulent voter for every 1000 legitimate voters excluded.

CONCLUSION: THE CHOICE — Average citizens explain how and why they invest time working through Common Cause, National Council of La Raza, The League of Women Voters, and the NAACP to change democracy.

0

Student # 43 Unmasked!!

Bush.jpgI posted earlier about an answer to my exam question on constitutional amendments written by student with ID number “43.” I said that I gave “43” a C.

Most readers, I think, got it. But based on reactions posted by dolts at lesser blogs and some strange e-mails I received, some didn’t. (Who knew there were so many literalists?)

So, for the benefit of everyone, I’m hereby posting “43’s” facebook photo.

No, I didn’t give my current Constitutional Law students the question I discussed (though I’m confident if I had they would have had no trouble coming up with more carefully thought out proposals than the Federal Marriage Amendment). And I certainly can’t imagine posting a real student’s exam answer on a blog and telling the world how I graded it. That would be outlandish behavior–even for a law professor.

I appreciate the many thoughtful comments I received about this (fictional) post.

2

Academics Blogging / Blogging Academics

Coast to Coast on the Legal Talk Network recently was kind enough to invite me on as a guest. Here is a description of the program from their site, which is also where you can listen to the program:

Law professors’ blogs are getting a lot of attention on college campuses across the country. We all know the blog is a powerful tool. And postings reach people around the world in seconds. Tech savvy law professors have already joined the blogging craze. But the question has been raised – should those blogs be part of their “academic pursuit?” Join co-hosts and Law.com bloggers, Craig Williams and Bob Ambrogi as they turn to our experts to get their insight on the credibility of the blog and look into the debate of law professor blogs vs. law professor articles. Craig and Bob welcome Professor Susan Crawford, law professor at the Cardozo Law School, Professor Eugene Volokh, professor at UCLA Law School and founder of the blog, The Volokh Conspiracy and Professor Miriam Cherry, visiting professor at Hofstra University and blogger for ContractsProf and Concurring Opinions.

And, while I’m at it, let me just mention that Coast to Coast has a number of interesting shows on different legal topics that you can listen to on their site or that you can download to your iPod. Check it out!

p.s. The title of this post betrays my fascination with palindromes.

1

Anonymous Law Firm

anonymous-law-firm.jpgFor a hilarious satire on law firm life, check out the website, Anonymous Law Firm. Some highlights:

“Our work indicates a longstanding commitment to maximizing profits, and an unparalleled dedication to the perception of success.”

“Our firm was founded in 1908 by thirteen lawyers who believed that the practice of law did not have to be merely one aspect of an attorney’s life but that it offered enough rewards – mentally, spiritually and financially – that it was all a person needed to live a complete existence.”

“The Baghdad office is delighted to have been undergoing a series of renovations over the past few years, as the exterior and interior have been repeatedly gutted.”

“An ideal associate here is someone who could one day become a partner of the Firm, but won’t last quite that long. Sure, you’ll stay until the finish line is in sight, but then something will pull you away. Perhaps an illness. Perhaps an accident. Perhaps a carefully-worded threat. But something. Something terrible. Yet wonderful at the same time.”

“Our study has revealed, among other findings, that the meaning of life is hard work, performed without rest and without complaint, for purposes often vague and unclear, in concert with people you neither trust nor respect. And that those who seek meaning elsewhere are simply misguided, and in line for a life of failure and disappointment.”

Hat tip: Brian Leiter

3

Uses of Legislative History: Scalia v. Alito

Today the Supreme Court held unanimously in Zedner v. United States that a defendant may not prospectively waive the application of the Speedy Trial Act and, therefore, a defendant’s agreement to waive the Act’s protections “for all time” in his pending criminal case was ineffective. Justice Alito wrote the majority opinion in which he reasoned that the language and purposes of the Speedy Trial Act led to the conclusion that the Act did not permit prospective waivers and that this conclusion was supported by the Act’s legislative history. Justice Scalia wrote the single concurring opinion, joining the majority opinion except for it’s use of legislative history.

Sharply criticizing Alito’s reliance on legislative history, Scalia wrote:

I believe that the only language that constitutes “a Law” within the meaning of the Bicameralism and Presentment Clause of Article I, §7, and hence the only language adopted in a fashion that entitles it to our attention, is the text of the enacted statute. . . .

It may seem that there is no harm in using committee reports and other such sources when they are merely in accord with the plain meaning of the Act. But this sort of intellectual piling-on has addictive consequences. To begin with, it accustoms us to believing that what is said by a single person in a floor debate or by a committee report represents the view of Congress as a whole—so that we sometimes even will say (when referring to a floor statement and committee report) that “Congress has expressed” thus-and-so. . . . There is no basis either in law or in reality for this naive belief. Moreover, if legislative history is relevant when it confirms the plain meaning of the statutory text, it should also be relevant when it contradicts the plain meaning, thus rendering what is plain ambiguous. Because the use of legislative history is illegitimate and ill advised in the interpretation of any statute—and especially a statute that is clear on its face—I do not join this portion of the Court’s opinion.

Given that the decision is 9-0, it’s hard to read it as early evidence of a large difference between Scalia and Alito. For that, we’d need a case in which Alito uses legislative history to buttress a statutory interpreptation with which Scalia does not otherwise agree.