Category: General Law


The Yale Law Journal Online: Is It Important To Be Important?: Evaluating the Supreme Court’s Case-Selection Process


On September 19, 2009, Frederick Schauer discussed the state of the Supreme Court’s certiorari process at a conference sponsored by The Yale Law Journal Online and the Yale Law School Supreme Court Advocacy Clinic.  Professor Schauer’s Essay on the topic, evaluating the dwindling caseload of the Court, the potential for an informational disadvantage on the part of the Justices themselves, and means by which a solution may be found, is now available on YLJ Online.


Huckabee Weighs in on Commutation (Again)

Via Jeralyn Merritt at TalkLeft, I see that former Presidential candidate and Arkansas governor Mike Huckabee has an op-ed out in the Washington Post further explaining his decision to commute the sentence of Maurice Clemmons (discussed earlier at Co-Op here and here.)

The op-ed, and Jeralyn’s post, are worth a read in their entirety, but here are the key points from Huckabee’s piece:

Between 1,000 and 1,200 requests for some form of clemency came to my desk each and every year of the 10 and a half years I was governor. An overwhelming majority of the time, I denied the requests. When I did grant them, it was based on the recommendations of all five of the members of the PPTB [the Post Prison Transfer Board], with consideration given to input from public officials and my own personal review of each and every file.

Maurice Clemmons was 16 years old when he committed the crimes of burglary and robbery. He was sentenced to a total of 108 years in prison, dramatically outside the norm for sentencing for the crimes he committed and the age at which he committed them.

In 2000, the PPTB unanimously recommended that his sentence be commuted after he had already served 11 years in prison. As per the recommendation, I commuted his sentence to the term of 47 years (still a long sentence in comparison to others for the type of crime he had committed), making him parole eligible. It did not parole him, as governors do not have that power in Arkansas. He would have to separately apply for parole and meet the criteria for it.

Three months after the commutation, Clemmons met the criteria for parole and was paroled to supervision in late 2000. When he violated the terms of his parole, he was returned to prison and should have remained behind bars. For reasons only the prosecutor can explain, he ended up dropping the charges, allowing Clemmons to leave prison and return to supervised parole.

Clemmons moved to his native Washington State and engaged in intermittent criminal activity that increased in violence and frequency. He was arrested on charges of raping a child, yet was allowed to post bail in Washington. While out on bail, he committed the unspeakable acts of murdering four valiant police officers.

Based on Huckabee’s account, his clemency decision in this case does not seem extraordinary or unusual.  Similarly, while I don’t have the statistics before me, my bet is that the 11 years Clemmons served is probably closer to the average (or higher than the average) sentence that a 16-year-old convicted of burglary and robbery would receive.

In short, as Jeralyn concludes, the prosecutor’s decision not to pursue charges on the parole violation and the failure to heed warning signs that Clemmons was mentally ill indicate that perhaps we should be looking at the support and oversight of parolees or at our mental health system, rather than at Huckabee, if we want to try and prevent tragedies like this one in the future .  Of course, the prosecutor was not a former candidate for President.  And thinking about the systemic shortcomings of our mental health and corrections systems is hard work.  So I guess that the focus on playing the political blame game with Huckabee shouldn’t be all that surprising (even if it is disappointing) given our current media climate.


Comparative Constitutional Law, “Exceptionalism,” and “Originalism”

Last summer I was fortunate to share with Anne Massie the chance to teach Comparative Constitutional Law in the Loyola Chicago program at its Rome campus. Part of what made it enjoyable was the participation of Justice Ruth Ginsburg, along with her law professor husband, Marty Ginsburg. Justice Ginsburg gave three lectures – one on the inner workings of the Court, a second on her experiences litigating women’s rights cases in the 1970s, and the third on dissents. Her lectures revealed to enthralled students how passionate she is about what she is doing and how personal the relationship is among most of the Justices. Marty gave a wonderful lecture entitled “Imperfections.” It was about how things that happen that might seem not so desirable at the time can, nevertheless, lead to even better outcomes. He started with wondering what would have happened if big law firms would have hired women lawyers when Sandra Day O’Connor and Ruth Bader Ginsburg graduated from law school. That would have been good, but, had that been the case, both of them would now be rich, retired partners of major law firms. As things turned out, much better things happened because one path had been closed. His warmth and humor made the ambiance so relaxed that a student was so bold to ask how he and Justice Ginsburg had met, which they took turns answering.

What I want to comment on, however, is an insight that teaching comparative constitutional law allowed me to have and has been useful in my thinking about American constitutional law. It ties together our supposed “exceptionalism,” our doctrine of judicial review, and “originalism.”

I have always been proud that the US Constitution has been the inspiration for the development of written constitutions and of constitutional democracy, including individual constitutional rights, in many countries around the world. Judicial review, as originally articulated in Marbury v. Madison, has taken hold around the world in part because of our experience with it, particularly in its role in developing individual constitutional rights to expand the concept of what a democracy entails.

In recent times, however, our Constitution and the decisions of our Supreme Court are not cited that often by the courts making constitutional decisions in these other countries. Given the strident rejection of any citation to foreign legal developments by some in the US, including some member of our Supreme Court, one explanation is simply that turnabout is fair play: If the constitutional law of other countries is to be avoided at all costs in US courts because of our supposed “exceptionalism,” why should the courts in other countries cite US decisions?

There may be some of that.  However, I think more is at stake. The demand for isolationist “exceptionalism” may have something to do with our turn toward “originalist” interpretative approaches that has come to so dominate the discourse about constitutional law in this country.  “Originalism” creep is even expanding across the ideological spectrum of US constitutionalists. “Originalism” in any of its many versions is simply a non-starter for the courts of most other countries deciding constitutional questions.

The absence of “originalist” talk outside the US may be because most of the countries that now have constitutional judicial review have written it into their constitutions. Some have even created specialized constitutional courts with jurisdiction limited to decisions of constitutional questions. Our written constitution lacks such an explicit provision, though the structure of our constitution, with the horizontal separation of powers into three branches for the national government and a vertical power distribution between the national and supposedly sovereign states, seems to me to ache for judicial review to resolve the inevitable disputes that emerge in such a complicated power sharing system. In countries with express judicial review provisions, there is no question of the legitimacy of judicial review, though, of course, there are intense disputes over any particular exercise of that power.

So what is the link between “originalism” and an explicit judicial review power? Given security over the legitimacy of judicial review in those countries where it is explicitly established in the written constitution, it struck me that one way of looking at our obsession with “originialism” is that it reflects our collective insecurity about the legitimacy of judicial review. The strident cry of US “exceptionalism,” as virtuous and not to be contaminated by the introduction of foreign influences, is a way of shielding our constitutional discourse about judicial review from any recognition of its calm acceptance in so many other countries. What is exceptional is not judicial review but our insecurity over its legitimacy.

Some years back, Cass Sunstein proffered a straightforward political explanation for US judicial “exceptionalism:” The national political turn away from Warren Court activism with the coming of Nixonian Republicanism. One of its goals was to stop the momentum the Warren Court had been developing for the expansion of individual constitutional rights from negative ones to include positive rights. Shutting out the experiences of other countries that had been developing broader individual constitutional rights helped stem the tide toward recognition of positive rights here.

If that is true, that raises a question of which way causation runs: Has our collective insecurity about the validity of judicial review caused the cry for US “exceptionalism” and our soul-searching “originialism”? Or, has that insecurity been used instrumentally with politically motivated calls of “exceptionalism” and “originalism” made to retard the development of individual constitutional rights?

I wish I knew the answer to that. At any rate, teaching comparative constitutional law sure put the debates over how to interpret our Constitution into a new context. I hope I will be able to expand the discussion in my US constitutional law course this coming semester.


Let Down Your Golden Hair!

The academic. Sequestered in an ivory tower. Alone with his books. Deep in thought. Tome to his left, pipe in hand, Abyssinian in lap.

While this does describe me to a T, I’m trying to change. I’ve already removed some of the elbow patches from my tweed jackets in hopes of better feeling the world and I’m thinking over my policy about responding to the public.

In truth, I write a fair number of op-eds and short commentaries for popular markets and one of the issues that arises is whether to write back to people who read my work and pen a response. Many newspapers like to post your email address these days and as I tend to address controversial topics, I often get notes back. They vary from insightful questioning of the data I rely on to ALL-CAPS RANTS ABOUT MY CORRUPTED SOUL AND MY PC B*LLSH*T NONESENSE!!!

As a result of time limitations and a fear of further engaging certain ever-so-slightly threatening individuals, I’ve settled on a policy of carefully reading every email I’m sent and thinking about the contents, but almost never writing back a personal note.

I wonder if that’s the best approach. And I wonder why I don’t employ it to the same degree when I blog.

On a certain level, it would seem prudent to have a more rigorous procedure for my blogging. After all, the emails I get after writing an op-ed are private, whereas anyone can read the feedback I receive on a blog post.

Isn’t the worst policy of all to respond in a haphazard and inconsistent manner? Aren’t people liable to think that since I respond sometimes, my not responding in a particular instance is a signal that I must find the argument of the commenter compelling?

Should I have a policy of only responding to friends? Or only responding to other legal academics? Is not responding a dereliction of duty given the purported merits of “scholarly debate”?

Hmm . . . maybe the answer is to retreat back to the cat, pipe, and tower.


If Cows Could Read

In my forthcoming article, Copyright and Copy-Reliant Technology, I investigate the significance of transaction costs in the context of technologies that copy expressive works for nonexpressive ends. These “copy-reliant technologies”, such as Internet search engines and plagiarism detection software do not read, understand, or enjoy copyrighted works, nor do they deliver these works directly to the public. They do, however, necessarily copy them in order to process them as grist for the mill, raw materials that feed various algorithms and indices.

Copy-reliant technologies usually, but not invariably, incorporate some kind of technologically enabled opt-out mechanism to maintain their preferred default rule of open access. For example, every major Internet search engine relies on the Robots Exclusion Protocol to prevent their automated agents from indexing certain content and to remove previously indexed material from their databases as required.  A robots.txt file at the root level of a website in the form of: User–Agent:* Disallow: / will banish all compliant search engine robots from a website.

The Robots Exclusion Protocol is pretty easy to implement and it is highly customizable. The interesting question for copyright law is “does the provision of an opt-out make any difference?”

In the Article, I argue that it opt-outs are significant in the context of a fair use analysis. The doctrinal analysis is in the paper, but the basic point is that when transaction costs are otherwise high, opt-out mechanisms can play a critical role in preserving a default rule of open access while still allowing individuals to have their preferences respected.

The notion that the rights of the property owner can be protected under permissive default rules coupled with an opt-out is hardly new.  Robert Ellickson famously describes the “fencing out” rule whereby cattle were allowed to roam freely on the property of others unless that property was fenced.  Landowners still maintained their property rights, subject to the burden of fencing out neighbors’ cattle.  Presumably, if cows could read, a sign not unlike the Robots Exclusion Protocol would have been sufficient.


Do Initial Allocations of Property Rights Matter?

If the last two years of American economic life have demonstrated anything, it is that property rights are not static.  Sometimes things that were once private property become public property (see, e.g., Motors, General).  Sometimes things that were once public property become private property, then become public property again, before they presumably become private property again (see, e.g., Mae, Fannie).  And sometimes things that were once considered inherently communal and thus inamenable to private property rights at all, become divided and privatized (see,e.g., the air).

Tradeable carbon emissions allowances are an example of the latter.  There’s a lot to like in the cap-and-trade programs proposed under the Waxman-Markey and Kerry-Boxer bills.  I hope some robust version of them passes and becomes law.  But one sticky issue that needs to be resolved is how initial allowances to fill airspace with carbon gases should be allocated.  Options include auctioning off all of the allowances, giving the allowances to existing carbon producers, and, most politically palatable, something  in between — some mixed proportion of free allocations and auctions.


Economist Robert Stavins, in the Coasean tradtion, has insightfully argued that  (with some caveats, including that transaction costs in this cap-and-trade program are similar to the transaction costs in others) the initial allocation of allowances doesn’t matter in most significant ways:  it will have no effect on the distribution of allowances after trading, and will have no effect on the total magnitude of emissions and their attendant social costs.

But there is another factor economists have not addressed, that could effect the total magnitude of emissions and their attendant social costs, and that may well depend in part on the method of initial allocations: compliance.

Law Professor Christine Parker and political scientist Peter May, among others, have demonstrated that compliance with business regulation is highest when the regulated businesses believe that the regulatory regime is fair.  Lower levels of compliance reduce the effectiveness of the regulation in producing the desired outcome, and increase the costs of achieving it.  In the world of carbon emissions, this would mean a higher total magnitude of emissions and a reduced benefit to the public through the higher costs required to achieve them.


My research into Icelandic fisheries suggests that in moving natural resources from communal to private property through cap and trade programs, initial allocations of rights do have an important effect on the perceived fairness of the regulatory regime, and thus on the willingness of the regulated to comply with it.

In Iceland, the government decided to protect fish stocks by freely allocating tradeable fishing rights and implementing catch quotas.  Permits were issued to fishing vessel owners based on their average catches during a three-year test period.  New entrants to the industry must now buy their way in by purchasing or leasing rights from others through the Icelandic Quota Exchange.  Although the system has been successful in reducing the overall catch, the perception that it is unfair has led to open defiance.  In an extraordinary case before the Icelandic Supreme Court, one fishing company did openly what many apparently do quietly — defied the system on the grounds that it was unfair.  

Transactions costs, of course, are inevitable, but it is not transaction costs that have produced resistance to the Icelandic system.  Rather, resistance is itself is a type of transaction cost, broadly construed, produced by the perceived unfairness of the initial allocation of rights.  In other words, the initial allocation of rights does indeed effect the overall effectiveness of a private property system. 

There has been considerable uproar over the potential free allocation rights to current carbon emissions producers.  Whether or not, as a matter of classical economic theory, the initial allocation of rights should effect the overall effectiveness of the program, the perception of fairness or unfairness will probably effect compliance with the system, and that in turn will effect its overall effectiveness.  It is important, therefore, for policy makers to bear in mind that the perceived fairness of initial allocations of property rights does indeed matter.


When International Sanctions Fail . . . There’s Always the World Cup Draw

As shocking as it might seem, North Korea (or the Democratic People’s Republic of Korea, as it’s known to its friends) will be playing some footie next summer in South Africa.

Denizens of Kim Jong-il’s own private Neverland Ranch were overjoyed when their soccer team qualified for the 2010 World Cup last June and were, like the rest of the globe, eagerly anticipating the draw today.

Unfortunately, their team was cruelly slotted into the “Group of Death” (by a smiling Charlize Theron) along with (1) arguably the best team in the world, Brazil; (2) African-powerhouse, the Ivory Coast (led by the unstoppable Chelsea striker Didier Drogba); and (3) Portugal (a squad which, despite underperforming in qualifying, is ranked 5th in the world by FIFA).

Now, there have been plenty of conspiracy theories out there over the years about World Cup draws, but I personally didn’t see anything nefarious in the picking of the ping pong balls this go around, which means that North Korea could just as easily have landed in “the group of milk and honey.”

That doesn’t seem right. After all, North Korea has been scaring us all for a long time, which leads me to a (not completely-and-utterly unserious) proposal. Countries that fail to abide by international rules when it comes to enriching uranium, torturing dissidents, etc. should receive bad draws for the World Cup group stage.

In support of this proposal, I would point out that people in many countries of the world care more about soccer than just about anything (making this a particularly effective sanction). Yet, the mechanism here is unlikely to actually lead to direct bodily harm to citizens, unlike many traditional sanctions. Moreover, while it does penalize countries for misbehavior, it still encourages engagement with the international community because it does not bar countries like Iran and North Korea from participating in (or even winning) the tournament.

Plus, even if it didn’t work, it might be kind of fun to watch Spain’s Fernando Torres smashing shots straight into the heart of the axis of evil.

(The entire World Cup draw appears after the break.)

Read More


President Obama Rides To The Defense of John Yoo

John Yoo Has a Powerful Friend

John Yoo Has a Powerful Friend

(I haven’t seen this blogged elsewhere, so I’ll make an exception to my rule of not blogging about con law.)

The government has just filed an amicus brief in Padilla v. Yoo, currently on interlocutory appeal (from this order) and pending before the Ninth Circuit.  The brief argues against recognizing a Bivens action in the context of advice rendered “relating to war powers and national security.”  Part of the argument depends on the availability of other forms of relief, including habeas and disciplinary proceedings against Yoo, as well the potential for congressionally sanctioned damages.  Note this brief is separate from the substantive defense of Yoo that the government has undertaken: this is the position of the United States on the policy question of whether government officials like Yoo ought to be liable in civil court for the consequences of their advice.  Because the government obviously had no need to file this brief, it is sure to be greeted by Obama’s liberal base as quite demoralizing.    I guess it’s lucky that Obama’s too big to fail.

(Update: Footnote 1 is fun.  I translate as: “We’d like to join and expand on Yoo’s arguments about his good faith behavior.  But other parts of us are  still holding onto a report which may call into question the accuracy of that claim. Coincidentally and luckily, that report continues to be delayed, making it unnecessary for us to commit to a position that would be internally incoherent.  Do us a favor and resolve this on constitutional grounds, would ya?”)


More On the Huckabee Clemmons Commutation

Following up on Adam’s great post about Mike Huckabee’s commutation of Maurice Clemmons (the Arkansas man who murdered four police officers outside Seattle last week), I see that Huckabee is continuing to defend his decision.  In an article for Human Events, Huckabee presents his case:

The reasons were straightforward — a unanimous recommendation from the board, support from a trial judge and no objections from officials in a case that involved a 16 year old sentenced to a term that was exponentially longer than similar cases and certainly longer than had he been white, upper middle class, and represented by effective counsel who would have clearly objected to the sentencing.  (His race, economic status, or education level are not excuses for his behavior because many people of color who are uneducated and living in abject poverty are civil, trustworthy, and honest to a fault and many well-educated, wealthy, white people are dirtbags — think Bernie Madoff).  But sadly, Arkansas has had numerous instances of disproportionate sentencing in which a probation and fine would be meted out to white upper class kids whose parents were able to obtain the services of excellent defense attorneys, while young black males committing the same crimes and represented by public defenders would end up with inexplicably long prison terms.  Blacks comprise 15% of the state’s population, but 50% of the inmate population, some of which is due to the fact that their sentences are often longer and they are less likely to be paroled.

(More on Huckabee’s continued defense here and here.)

Whatever the merits of this particular clemency decision, like Adam, I admire Huckabee’s practice of taking the clemency power seriously when he was Governor and his decision to defend and explain his actions rather than buy into the attempt by some in the media to paint this as a black and white issue.  The fact is that there will always be a risk that a person released from prison, whether after a commutation or the natural termination of a sentence, will commit a crime after they’ve been released.  Unless we are prepared as a society to sentence every 16 year old who commits a robbery to life in prison (which, of course, is what a 108 year sentence effectively was), I think we’d do well to focus on how to better monitor and re-integrate prisoners once they are released.  And, as Doug Berman notes, the Clemmons tragedy certainly seems to raise as many, if not more, questions about those issues as it does about the clemency process.  (Jonathan Simon at PrawfsBlawg also has a thoughful post on some of the bigger-picture issues raised by this case.)


Judges as Umpires, Revisited

The analogy starts to ring true.  You must read these allegations about how NBA games are refereed.  Does this happen in baseball? Who knows.  Can you think of any other explanations for why America’s team beat my beloved Phillies this year?

(H/T: Reader CDP.)