Category: Jurisprudence


John Yoo’s NYT Op-Ed Backfire

The New York Times yesterday gave most of its op-ed page to John Yoo, the Berkeley law professor who attracted odium from adversaries for writing the Bush-era legal memos seeming to condone torture as a presidential prerogative. The op-ed purports to challenge the views of Solicitor General Elena Kagan on presidential power, the tenor suggesting Yoo doubts she holds the correct views for a Supreme Court nominee.

If that is its purpose, though, the op-ed backfires, making it sound as if Kagan’s views are in the legal mainstream and Yoo’s views off in the fringe. One thus wonders why Yoo wrote the piece for publication in the Times—it is easy to understand why the Times would run it (and why Yoo would want to communicate it to like-leaning minds).

Yoo champions what he calls “the Bush administration’s theories of the unitary executive.” This refers to an interpretation of the Constitution reposing executive power exclusively in the President, unbound by Congress or courts. Yoo reads a 2001 Kagan law review article to reject finding any constitutional basis for such broad assertions of presidential power. To Yoo, this would be the mark of a bad judge, unsuited for the Supreme Court; what Yoo shows, however, is that this would be the mainstream.

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Book Review: Rorty & Schmidt’s Kant’s Idea for a Universal History with a Cosmopolitan Aim

Amélie Rorty and James Schmidt. Kant’s Idea for a Universal History with a Cosmopolitan Aim: A Critical Guide. Cambridge: Cambridge University Press, 2009.

The collection presently under review is devoted to the understanding of Kant’s essay Idea for a Universal History with a Cosmopolitan Aim (original German title: Idee zu einer allgemeinen Geschichte in Weltbürgerlicher Absicht). Kant’s article was published in 1784 a full year before his monumental Groundwork of a Metaphysics of Morals (1785) which has for almost two centuries dominated the reception of Kant’s ethics. There is a striking difference between the two works. Idea presents us with a historical account of both the history and the continued prospects for the development of a truly moral society, while the Groundwork presents us with a theory purporting to explain to us why we are, always have been, and always will be, capable of being moral. The project of the Groundwork is thus essentially justificatory while Idea explores the conditions for the possibility of morality becoming something we actually live by rather than merely being capable of. The fact that Kant had both ideas in mind at the same time deserves to be underlined, especially given the received (but now less dominant) interpretation of Kant as a strict moralist who believes we are at all times capable of acting morally. The present collection of essays goes some way toward softening this interpretation.

Kant’s essay (only 14 pages long), included in the collection and well translated by Allen Wood, is concerned to show that human history can be understood as a plan of nature which seeks to move us toward morality, whether we intend it or not. It is part of Kant’s critical project that such a plan of nature cannot, however, be known but must remain at the level of an idea of reason. (More on this below.) Kant proceeds by way of nine propositions which outline how nature pushes us to become rational and hence moral.

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The Case for Judicial Experience

The debate over Elena Kagan’s lack of judging experience is heating up. The current justices, of course, are quite homogeneous in their career paths. In particular, for the first time in the Court’s history, all of the sitting justices served previously on the U.S. Courts of Appeals. Some argue that the Court needs more diversity in background experience. The normative argument is that lack of diversity in experience leads justices to view cases and legal issues through a similar lens — one that some consider narrow. Diversity in experience, on the other hand, promotes a broader, more multifaceted view of legal matters. For instance, those with experience outside of the judging realm have a greater appreciation for how “law…affects the lives of ordinary people,” to quote the sentiment emphasized by President Obama in his announcement of Kagan’s nomination. (“That understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people, has animated every step of Elena’s career — including her service as Solicitor General today.”)

While I think there are benefits to background diversity on the Court, I want to make the case for the importance of judicial experience, particularly U.S. circuit court experience, as I do not think this case has been succinctly articulated throughout this debate. To do so, I draw on David Brooks’s very thoughtful column, written in September of 2008, stressing the importance of experience in governing. The column was written in the context of the debate over whether Sarah Palin was qualified to be Vice President and, perhaps, President. Quoted below is Brooks’s core argument:

It turns out that governance, the creation and execution of policy, is hard. It requires acquired skills. Most of all, it requires prudence.

What is prudence? It is the ability to grasp the unique pattern of a specific situation. It is the ability to absorb the vast flow of information and still discern the essential current of events — the things that go together and the things that will never go together. It is the ability to engage in complex deliberations and feel which arguments have the most weight.

How is prudence acquired? Through experience. The prudent leader possesses a repertoire of events, through personal involvement or the study of history, and can apply those models to current circumstances to judge what is important and what is not, who can be persuaded and who can’t, what has worked and what hasn’t.

Of course, there are differences between the importance of experience in the strictly political realm as opposed to the judicial realm. But Brooks’s basic template is applicable to the debate over judicial experience.

Is prudence, as Brooks discusses it, attainable without prior judging experience? Of course. And there are many justices who are considered “great” justices who had no prior judging experience. But those with prior experience, particularly as U.S. Courts of Appeals judges, are accustomed to thinking about, wrestling with, and deciding federal legal questions containing constitutional and statutory issues — the same issues that come before the Supreme Court. They are more likely to possess a firm intellectual foundation for deciding a wide variety of legal issues that come before them. They are more well-versed in applying legal rules and standards to the facts of a given case. They have processed and decided a diverse set of cases that constitutes this rich “repertoire of events” of which Brooks speaks.  Judicial experience, and particularly U.S. Courts of Appeals experience, matters because it best prepares one for the work that a Supreme Court justice does on a day-to-day basis.

Introducing Symposium on Deborah Hellman’s “Money Talks, But It Isn’t Speech”

moneyshirt.jpgIt’s an honor to introduce Deborah Hellman and the participants in this cyber-symposium. In the wake of the sweeping Citizens United decision, Hellman has returned to first principles in her article “Money Talks, But It Isn’t Speech.” Justice Kennedy based the majority opinion in Citizens United on the assumption that spending and speech are interchangeable. But what if this equivalence does not hold? Might a future Court declare Citizens United “not well reasoned” because it “puts us on a course that is sure error” (to borrow Kennedy’s characterizations of the precedents that Citizens United overruled)?

A vibrant conservative legal movement has seized the mantle of “popular constitutionalism” to demand that courts reinterpret key constitutional provisions in order to reflect popular opposition to some provisions in the recently passed health reform legislation. But Citizens’ United has proven far less popular than health reform; “the court’s ruling is opposed, respectively, by 76, 81 and 85 percent of Republicans, independents and Democrats,” and by 80% of the nation as a whole. Though I was ready to give up on campaign finance regulation three years ago, numbers like these convince me that the Court needs to listen to scholarship like Hellman’s now more than ever.

At least some justices have shown remorse for deregulatory dogmatism. Might the Court back down from its current war on campaign regulation? If it is so inclined, will arguments like Hellman’s help it “see the light” and reclaim the egalitarian roots of democratic governance? To consider these and other issues raised by Hellman’s rigorous and illuminating paper, we’ve invited an all-star cast of legal thinkers:

Erwin Chemerinsky
Louis Michael Seidman
Lawrence Solum
Zephyr Teachout

Some of our regular crew of perma-bloggers & guests will likely have some contributions, as well. Whatever you think of campaign finance reform, I’m confident you’ll find both Hellman’s article and our guests’ commentaries to be bold and invigorating contributions to legal theory.

Photo Credit: Rob Lee/Flickr, Money Shirt.


Citation of Foreign Law

One thing I’ve always been curious about with respect to the debate about when it’s appropriate for our courts to cite foreign law is how that question was addressed right after 1776.  After all, I thought, some people must have argued then that our courts shouldn’t be citing British law because of the separation.

Turns out that this was true in some states.  For example, an 1807 Kentucky statute provided that “records and books containing adjudged cases . . . in Great Britain . . . since the fourth day of July, 1776 shall not be read or considered as authority . . . in the courts of this Commonwealth.”  And a 1799 New Jersey law did something similar.  Now what I don’t know is what courts did with these statutes or why they were ultimately repealed. Could be a good note topic for someone.


Justice Holmes and Federal Common Law

Most of you know that Oliver Wendell Holmes Jr. was not a fan of federal common law.  In South Pacific Co. v. Jensen, he dissented from an opinion holding that maritime law trumped a state statute and criticized the idea that the common law was a “brooding omnipresence in the sky” that could be created by federal courts.  (Of course, maritime law still operates this way.) This dissent was the basis for the Court’s opinion in Erie.

What you may not know is that Holmes wrote several opinions making federal common law even after his Jensen dissent.  In Baltimore R.R. v. Goodman, for example, he fashioned a rule about contributory negligence at grade crossings for a unanimous Court.  And in United Zinc. v. Britt, he applied the attractive nuisance doctrine narrowly to reject the wrongful death claims of two children who went swimming into a pond filled with chemicals.  Indeed, Justice Butler’s dissent in Erie cited these two cases to show that Holmes could not have really meant what he said in Jensen.

This illustrates a jurisprudential point that probably does not get enough attention.  We focus a lot on how judges should treat precedent, but we don’t do the same for the question of what they should do when they dissent and then are asked to extend or apply the precedent they dissented from in a subsequent case.  My impression is that stare decisis, in practice, is weaker when judges participates in the original case than when they did not, but I’m not sure.


BRIGHT IDEAS: Deborah Rhode’s The Beauty Bias

Oxford University Press has just published Professor Deborah L. Rhode’s newest book, The Beauty Bias: The Injustice of Appearance in Life and Law. I got my copy from Amazon on Friday and enjoyed every moment reading it over the weekend.  The book is  illuminating and important: it explores the often unacknowledged, yet pervasive, discrimination against people, particularly women, who don’t conform to mainstream notions of beauty and appearance.   Professor Deborah Rhode is the Ernest W. McFarland Professor of Law at Stanford Law School.   She is the one of the country’s leading scholars in legal ethics and gender.  Professor Rhode is incredibly prolific: she has written over 20 books and countless articles.  She is the director of the Stanford Center on the Legal Profession and a columnist for the National Law Journal.  Before joining the Stanford Law faculty, she was a law clerk for Supreme Court Justice Thurgood Marshall.

Lucky for CoOp readers, I had a chance to interview Professor Rhode about The Beauty Bias.  I reproduce our conversation below:

DC:  What prompted you to write this book?

DR:  It partly started with shoes.  I have always viewed women’s footwear design as a haven for closet misogynists;  so much of what they produce is so dysfunctional for its primary purpose—comfortable walking.  Yet in many contexts, including my years as Chair of the American Bar Association’s Commission on Women in the Profession, I was struck by how often some of the nation’s most prominent,  powerful, and otherwise sensible women were hobbling about  in what we described in high school as “killer shoes.”  They were stranded in cab lines and late for meetings — held back both literally and figuratively — because of shoes.  And inconvenience is the least of the problems. High heels are a major contributor to serious back and foot problems, and four-fifths of women eventually experience such difficulties. A growing percentage are even willing to undergo foot surgery to fit into their designer footwear. I was sufficiently irritated to write an op for the New York Times and it triggered more of a response than probably anything I’ve ever published.

That experience underscored a question  I had long puzzled over.   Of all the inequities that the contemporary women’s movement has targeted, why have those related to appearance shown among the least improvement?  Half of American women report unhappiness with how they look, a figure greater than a quarter century ago. In a country where large percentages of the population can’t afford basic health care, cosmetic surgery is the fastest growing specialty. Our global investment in appearance is over  200 billion, and millions of individuals, particularly women, are paying a huge cost not just in money but in time,  physical health, and psychological well-being.  Discrimination based on appearance, especially weight, is among the most common forms of bias; it is much more frequent and equally arbitrary as many forms of discrimination that are now unlawful. But except in a few jurisdictions, bias based on appearance  is perfectly legal.

DC:  How does this fit into your broader scholarship?

DR:  As a legal academic with a particular interest in  gender equality,  I wanted a better understanding of where our preoccupation with appearance comes from, what costs it imposes, and what could we do about it from a policy perspective.  I’ve always been interested in the gap between our aspirations and achievements  involving social justice in general and women’s rights in particular.  Appearance raises those issues and provides a window on questions involving the law’s capacities and constraints in producing social change. Appearance discrimination has also attracted relatively little public or scholarly attention, and part of the problem  is that so few individuals realize that we have a serious problem.  This project offered the chance to provide the first comprehensive overview of the law in this area, and new  research on the experience  of  the few jurisdictions that explicitly prohibit some form of appearance discrimination.  And because I’m always interested in connecting research to practice,  I tried to write in a way that will be interesting and accessible to a broad public and policy audience.

DC:  Are you hopeful that we might combat this bias?

DR:  I’m optimistic about reform but not naive about what stands in the way. The importance of attractiveness is deeply rooted, and the economic stakes in its pursuit are enormous.  But the costs of  our preoccupation with appearance are also considerable and could be much more fully appreciated.   Many individuals realize that it hurts to be beautiful, but few  realize how much and how many billions are squandered in worthless or unhealthful cosmetic and weight reduction efforts. And even fewer of us realize how much it hurts not to be beautiful, or to conform to culturally prescribed norms that are much more demanding for women than men, and that compound disadvantages based on race, class and ethnicity.  Most Americans have bumped up against some aspect of the problem and might be energized to do something if they came to see this as not just an individual problem but a social injustice and cultural challenge. Read More


Frankness About Activist Judges

Professor Geoffrey Stone calls for frankness in discussing what judges in our country do. Focusing on federal constitutional law, he explains that the notion of judges as “umpires,” calling balls and strikes, is usually disingenuous.

Much federal constitutional text is not self-defining so engaging with those parts must be “active.”  Political operators are responsible for misleading a public discourse suggesting the deceptive notion that “liberal” judges are “activists” who “make up the law” while “conservative” judges simply “apply the law.”

This canard is not limited to federal constitutional law and is revealed clearly in a prominent recent opinion written by conservative Judge Frank Easterbrook.   Easterbrook faced a 40-year old statute setting a “fiduciary” standard to certain fee arrangements of mutual fund advisers.

Disregarding the statute’s plain text and meaning, and decades of uniform judicial interpretation, Easterbrook went out of his way to declare that, in his judgment, that statute is bad policy.  In a start of judicial activism, he made up a new definition of the word fiduciary, to mean making disclosure and “playing no tricks,” however outrageous the fees may be.

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Rationalizing Law

For quite a long time, extensive empirical work in psychology, sociology, and behavioral economics has been revealing that many of the law’s most cherished rules are faulty.  They are based upon mistaken assumptions about human behavior.  They are often flat out wrong.  And yet they persist.

The work of Daniel Kahneman and Amos Tversky has shown that the human mind operates with all sorts of biases and heuristics that lead to systematic errors in judgment and perception.  As Dan Ariely put it in a recent work, Predictably Irrational (2008): “[W]e are not only irrational, but predictably irrational . . . our irrationality happens the same way, again and again.” (p. xx).  Richard Thaler and Cass Sunstein describe many of these systematic blunders in human judgment in their book, Nudge (2008).

As these studies increasingly make their way into legal scholarship, they are proving that many existing legal rules don’t work as they should.  And this is more than a mere normative critique.  The rules just fail because people don’t act or think the way the law thinks they ought to.  In fact, what we’re learning about the way people act and think is often counterintuitive.  It is hard to grasp and hard to deal with.

This research should be undermining many legal rules at their very foundations.  Yet the legal rules don’t seem to be shaken despite their foundations being annihilated.

In many domains, when something is proven flat wrong, it is confronted and dealt with.  If evidence shows that bleeding the patient isn’t a good cure for disease, then we move on and stop doing it.  But in law, if the evidence shows that a rule doesn’t work, what’s the response?  Often, it is to just accept the evidence with a grin and continue on.  If science were like law, we’d be talking about how the earth is round yet continuing to behave as if it were flat.

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