Concurring Opinions » David Gray

What Does Jones Mean for the Exclusionary Rule?

David Gray — Fri, 10 Feb 2012 17:20:33 +0000

Many thanks to Danielle and the good folks at Co-Op for inviting me back and for again tolerating my slow starts. I am late to the Jones party, but nevertheless cannot pass on the opportunity to say a few things. Foremost, I think I represent the views of criminal procedure professors nationwide when I thank the Court most sincerely for its timing. A couple of terms back the Court issued its opinion in Gant “clarifying” Belton smack in the middle of reading week, which was difficult timing to say the least. More common practice still is the Court’s regular habit of issuing the game-changers in May and June, which requires us to write long mails to students explaining to them how much of what we said to them over the past semester ought be wiped from their memories and to make decisions about whether to give credit on exams for answers that were right when written, answers that were wrong when written but are now right, both, or neither. By contrast, the timing of Jones could not have been better for most of us, who were set to teach the two-prong test from Harlan’s Katz concurrence that week. There was and continues to be some adjustment in what we teach about the Fourth Amendment, but at least it is all timely. So . . . Thanks Your Honors, very considerate indeed!

It is tempting to jump into the substantive conversation about whether Jones is good, bad, neutral, or a complete enigma for the Fourth Amendment, but I will demur for now, mainly because I cannot find sure footing for anything beyond the obvious: Trespass is back baby! (If it was ever gone). Instead, I’d like to wonder out loud about one of the adjustments I’m facing in class as we turn to our discussions of the exclusionary rule: What, if anything, does Jones mean for remedies. The issue was not briefed or argued in Jones, and each of the written opinions seems to assume without comment that the remedy provided by the district court—exclusion—was appropriate. Howard Slugh wrote a bit about this over at the National Review, but there is certainly much more to say.

It is not at all clear that the exclusionary rule has any footing in a Fourth Amendment that is about places. Roger Roots’s recent efforts to prove otherwise notwithstanding, most folks agree that, until Boyd in 1886, the remedies available for Fourth Amendment violations were the same remedies available for all tortious trespasses: return of illegally seized property and damages. Boyd itself did not mark a dramatic change. All the Court did there was to recognize, albeit temporarily, that allowing the government to introduce illegally seized papers will sometimes implicate the Fifth Amendment right against compelled self-incrimination. The Fifth Amendment continued to loom large behind the Fourth Amendment exclusionary rule in Weeks, where the Court rejected efforts by law enforcement officers to subpoena for use at trial illegally seized papers that had been returned to the defendant, and in Silverthorne, where officers made investigative use of illegally seized papers. Although Katz was decades in the future, the rise of the Fourth Amendment exclusionary rule in these early cases is nevertheless accompanied by tantalizing foreshadow. In Weeks, for example, Justice Day contends that “it is not the breaking of his doors and rummaging of his drawers that constitutes the essence of the [Fourth Amendment] offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property . . .” This and similar comments in these early cases bind the birth of the Fourth Amendment exclusionary rule to a shifting understanding of the Fourth Amendment as securing not just property, but the conditions of private repose, which are fundamental to our understandings of liberty, and that property rights are meant to secure. Absent this shift, it is hard to see where the exclusionary rule would get traction.

To the extent Jones carries forward a late-eighteenth century understanding of search, we are therefore left to wonder whether the exclusionary rule will be available for Jones violations. Given skepticism on the Court about the merits of the exclusionary rule, and particularly the Court’s contemporary commitment to the proposition that the exclusionary rule is justified solely by its utility as a deterrent, it’s hard not to worry. There seem to be three main issues.

The first is historical. If Jones defines Fourth Amendment violations according to a 1792 understanding of the Fourth Amendment, then does it also limit remedies to those available in 1792? Here we can look forward to rehashing standing debates about theories of constitutional interpretation with Justice Kennedy casting the deciding vote.

The second is more substantive. Although the Court long ago abandoned its early justifications of the exclusionary rule as a personal remedy justified by commitments to constitutional principle and judicial integrity, the Court has recently rehabilitated some of those arguments to limit the exclusionary rule. Hudson is a good example. There Justice Scalia argued for the Court that, absent a constitutional right to destroy evidence, there is no cognizable nexus between knock and announce violations and the discovery and seizure of evidence. Rather, he contended, the Fourth Amendment interests at stake in the knock and announce rule are limited to preservation of property and the opportunity to collect oneself before confronting law enforcement. The Court therefore held that exclusion should not be available as a remedy for knock and announce violations because exclusion does not vindicate the Fourth Amendment interests at stake. Those interests, the Court concluded, would be better served by tort actions seeking compensation for broken doors and emotional disturbance.

The exclusionary rule seems to have similar problems with “fit” in cases of Jones violations. To paraphrase a point made by Justice Thomas in other contexts, the Fourth Amendment violation contemplated by Jones was complete at the installation of the device. Although that trespass had to have been effected with the purpose of obtaining information, there is no requirement in Jones that any information actually be obtained. If the violation was complete at the installation, it is hard to see how punishing subsequent conduct by law enforcement, here turning on and monitoring the device, would vindicate the Fourth Amendment right or interest at stake at the installation. One might argue that monitoring the device constituted a separate Fourth Amendment—the Jones minority certainly did—or a continuation of the initial Fourth Amendment violation, but the majority specifically declined to do so.

The third issue is deterrence. For some time now a stable, though often bare, majority of the Court has held that the sole justification of the exclusionary rule is its capacity to deter law enforcement officers from violating the Fourth Amendment. In the context of elaborating this justification of the exclusionary rule the Court has argued that exclusion can only deter where the officer in question and those similarly situated can be deterred by the threat of exclusion. So, for example, officers who make an arrests based on the good faith belief that they are enforcing an active warrant will not be deterred by the threat of exclusion because they do not believe that they are violating the Fourth Amendment. This was the Court’s argument in Herring a couple of terms ago.

Here the exclusionary rule would appear to have some purchase in the context of Jones violations. After all, to qualify as a Fourth Amendment violation under Jones the trespass must have been effected with the purpose of obtaining evidence. Given that purpose, the threat of exclusion might well be expected to deter. Once again, however, we must confront the fact that the violation in Jones was the installation, not the monitoring. On the Court’s strict deterrence logic, what would be deterred by the exclusionary rule is therefore the monitoring, not the initial installation. Given the Court’s views on indirect deterrence, it seems odd to contemplate punishing lawful conduct in order to deter unlawful conduct.

Even assuming that the exclusionary rule could deter the unlawful installation in Jones, however, the Court has also held that exclusion will not be available unless its benefits clearly outweigh costs to truth seeking, punishing the guilty, and public perceptions of justice. This is, of course, a highly context-sensitive inquiry, but if the violation in Jones was the installation and not the monitoring, and exclusion as a punishment is therefore one more step removed from the offense, then the exclusionary rule seems to inflict a direct and significant cost to truth in the hope of a achieving quite indirect and speculative deterrence benefits.

All of this is, of course, both speculative and cynical. The exclusionary rule was not an issue in Jones, and there are good and credible reasons for thinking that the Court would have or should have imposed exclusion had it been. Whether those reasons will prevail when the question of remedy for Jones violations is presented, the future will tell. For now the speculation will be great fodder for class.

The Liberating Potential of Pragmatism

David Gray — Thu, 31 Mar 2011 21:20:31 +0000

A couple of years ago Malcolm Gladwell published a provocative and thought provoking article in the New Yorker suggesting that our common-currency instincts about social desert might run contrary to and impede good policy. Relying in part on the apocryphal tale of “Million Dollar Murray,” Gladwell made the case that the solutions to many of our most expensive social challenges may not require systemic change or large policy initiatives. Rather, we might see the greatest effect by focusing our attentions on a few key players. “Murray” was one candidate. An often homeless man with a tendency to binge, Murray and a relatively small cohort of mostly non-violent homeless addicts, according to Gladwell, cost taxpayers and public institutions in Reno Nevada hundreds of thousands of dollars in a matter of months split between police officers, emergency services, and public hospitals. Gladwell quotes one official estimating that during his decade living on the streets of Reno, local hospitals spent more than a million dollars on Murray alone. The solution to massive law enforcement, emergency services, and public health cost overruns, Gladwell went on to suggest, might be to identify the most expensive consumers of these resources and give them free housing, a personal social worker, job training, and free healthcare. The sticking point, of course, is that doing so would seem to reward bad behavior, inverting our common notions of desert and opening the door to a moral hazard problem.

In somewhat less provocative style, Atule Gwande recently made a similar case for aggressive primary care, also in the New Yorker. The focus of Gwande’s reporting is a project in Camden, New Jersey, called the Camden Coalition of Healthcare Providers, which was founded by Jeffrey Brenner. According to Gwande, as a young family medicine practitioner in Camden, Brenner noticed that many ambulance runs and hospital visits originated in a handful of neighborhoods in Camden. As he dug into the data more, he calculated that one percent of Camden’s population was responsible for over thirty percent of its emergency medicine and crisis inpatient costs. Once he had the data really dialed in, Brenner discovered that the residents of a couple of buildings consumed millions of dollars a year in healthcare costs that Brenner considered avoidable because they were the consequence of bad primary care, poor follow-up, and an incapacity to capture and make available to multiple providers crucial patient information. The Camden Coalition is designed as an experimental alternative. By providing to these neediest of consumers easy local access to physicians, aggressive follow-up from by medical professionals, and life-coaching to help them break bad habits and develop good health practices, the Coalition has already achieved a significant decrease in overall healthcare costs for the group and therefore Camden, though, here again, moral hazard looms.

What intrigues me about these sorts of experiments in social interventions is how they run counter to many of our sacred notions of liberty, desert, and personal responsibility. Our public policy discourse has always been dominated by contests among competing ideologies. Often these ideologies are incommensurable in fact or in practice, grounded in competing ungrounded base premises. The promise of American pragmatism and the social science projects to which it gave birth was to set secular and sacred religions aside in the forums of public policy debates in favor of evidence. While evidence-based approaches surely have their limits, they at least promise the possibility of a shared vocabulary and, perhaps, a consensus on the best imperfect way forward in the face of social challenges that require coordinated action.

Scientists Report Lack of Evidence for Health Benefits of Parachutes

David Gray — Mon, 28 Mar 2011 12:36:30 +0000

Here.

More on the Critical Role of Women in Transitions to Democracy

David Gray — Mon, 21 Mar 2011 01:56:29 +0000

The other day I posted a celebration of Secretary of State Clinton’s recent call for Egypt and Tunisia to include women in the processes of their transitions to democracy. Transitional justice is one of my scholarly interests, so I thought I would say a bit more about why it is so important that women have a seat at the table during transition. More after the jump.

For those unfamiliar with the field, transitional justice explores the question of what successor regimes, committed to democracy, human rights, and the rule of law, can and should do to address the atrocities committed by an abusive predecessor. Many scholars have argued that, for transitional states, these issues are a function of ordinary justice, provoking the same conversations that would be relevant in the stable state context. As I have argued here, here, and here, this ordinary justice approach mistakes the nature of transitions. While justice endeavors in relatively stable states may properly be treated as events of retrospection, transitional states exist in a position “betwixt and between” the past and the future that can be described as “liminal,” marking a passage from an abusive past into a future peace guided by commitments to democracy, human rights, and the rule of law. It is in this liminal space that transitional states negotiate their new identities. That liminal moment extends to individuals as well; and transitions frequently require perpetrators, victims, and witnesses of past abuses to redefine their positions and roles in post-transitional society.

The state’s socio-legal institutions are crucial to these projects of collective and individual transformation. Indeed, those institutions are precisely why transitional justice is not just business as usual, but is extraordinary. Unlike in stable states, where acts of violence stand out against a background constellation of norms that proscribe them, the mass and targeted violence that characterizes abusive regimes is the product of large numbers of people enacting institutionalized abusive paradigms, which rationalize and justify the abuse. Conversations about transitional justice usually focus on the abusive paradigms that sanction violence targeted against particular ethnic/religious/political/racial groups. In doing so, however, they fail to recognize and meet the material needs of women. Women in targeted groups are subjected to unique forms of violence during periods of punctuated abuse. Furthermore, outside periods of punctuated abuse, women and girls frequently suffer a base level of injustice and violence, regardless of their religious, ethnic, or racial affiliations. Because transitions fail to upset these gender hierarchies, a return to peace after transition usually means a return to baseline gender injustice. Transitional initiatives not sufficiently gender-sensitive are therefore deeply flawed.

Women and girls who are victims of pre-transitional violence frequently occupy a unique position because they live at the intersection of two targeted groups: women and the targeted ethnic/religious/political/racial group. This intersectional identity makes women in transition uniquely vulnerable if they are excluded from transitional processes. While their ethnic/religious/political/racial may make tremendous gains, they risk being left behind with other women as continuing objects of patriarchal exclusion and abuse. Of course, including women in the process of transition puts them in a position to advance the material and justice goals of women by giving them a voice in the construction of new legal, bureaucratic, and social regimes. That is obvious. What may be less obvious is that including women in the process of transition may also serve overall transitional goals of peace and stability. Making that case responsibly requires more time and space than is afforded in a blog posting. For those interested in the longer case, I am happy to share the most recent draft of a book chapter I am writing with Ben Levin. Just drop me an e-mail. For those who want the shorter version, here it is:

It is common, but wrong, to believe that social stability is achieved by encouraging universal faith and fealty to one strand of social identity. Quite to the contrary, societies that press for this kind of universal identity are running headlong toward the cliff. As I have put the point elsewhere: “Behind calls to unity lies the specter of a final solution.” Instead, stability in any society of more than a couple of people is an artifact of overlapping lines of association and opposition. The trick to social justice, peace, and stability, is to maintain a robust web of overlapping associations and oppositions so that claims of natural entitlement, and even exclusive authenticity, are rendered implausible. Among those oppositions and associations are those constructed on gender and those constructed on ethnic/religious/political/racial grounds. Because they live at the intersection of these groups, women and girls who were victims of pre-transitional abuses can play an important role in transitions by developing and sustaining lines of empathetic affiliation between members of different ethnic/religious/political/racial groups through shared gender identity and between members of different gender groups between shared ethnic/religious/political/racial identity. That, at least, is the hypothesis Ben and I advance in the book chapter. It appears that we have at least one ally in Secretary of State Clinton.

Making Sure Women Have a Seat at the Table in Transitional Societies

David Gray — Wed, 16 Mar 2011 17:17:23 +0000

Secretary of State Hillary Rodham Clinton used her speech at the International Women of Courage Awards to call for women to be included in the processes of transition underway in Tunisia, Egypt, and elsewhere in the Middle East. According to Secretary Clinton, despite the fact that women played a prominent role in recent popular uprisings in Tunisia and Egypt, no women were invited to “join in drafting constitutional amendments for the transition to democracy [in Egypt].” Clinton rightly expressed her concerns with this state of affairs, pointing out both that “women . . . deserve to be at that table making those choices that will affect their lives and the lives of their daughters and theirs sons” and that “[n]o government can succeed if it excludes half of its people from important decisions.”

The experiences of women in abusive societies and the roles and rights of women in times of transition are topics of considerable interest for transitional justice scholars. Fionnuala Ní Aoláin, Ruth Rubio Marin, Christine Bell, and Catherine O’Rourke deserve particular credit for pressing these issues in recent articles and collected editions. The central messages of their important scholarship are: 1) that women’s experiences as victims are unique both because women are more frequently subjected to sexual violence and because women often bear much of the economic and social burdens of family survival; 2) that women are uniquely vulnerable during and after transition and are at risk of remaining victims of oppression and targeted violence even as the rest of society is liberalized; 3) that democratic commitments core to most transitional movements entitle women to a “seat at the table” during transition; and 4) that by including women in transitional and transitional justice processes, transitioning societies will be in a better position to achieve lasting peace while making good on their core commitments to democracy, human rights, and the rule of law. While hard to argue, these claims on justice have yet to gain much traction in actual transitions. Secretary Clinton’s comments are therefore welcome and well-timed.

The Other Bush Doctrine

David Gray — Sat, 05 Mar 2011 00:02:43 +0000

As someone who thinks and writes about transitional justice issues, I have been far more interested in recent events in Sudan than those in Tunisia, Egypt, Libya, Yemen, Bahrain, Saudi Arabia, and Jordan (more on this in later posts), but that doesn’t mean I have not been watching in wonder and admiration the events unfolding in North Africa and the Middle East. I think we all have; and those are easy intellectual emotions to justify. What I have been more conflicted about is whether it is also appropriate for us to feel a bit of pride. I think it is, but not for the reasons many conservatives have been trumpeting.

More after the jump.

During the 2008 presidential election, Sarah Palin submitted to an interview with a painfully smug Charlie Gibson, who asked for her views on “the Bush doctrine.” It was a question so obtuse and ambiguous that it could only invite the appropriately annoyed and short response it got, which I shall paraphrase as “Which Bush doctrine do you have in mind Charlie?” Despite the assumptions of Palin’s critics, definite articles have no place introducing the phrase “Bush doctrine.” There are many. A policy of preëmptive war is certainly one; but there are others, including a theory of accessory liability for states that harbor or associate with terrorist groups and, most relevant for the present circumstances, his own version of the geopolitical theory of dominoes in fashion during the Cold War.

The Bush domino doctrine served as one of the back-up justifications for the invasion and occupation of Iraq, the theory being that if Iraq became a stable constitutional democracy then the rest of the Middle East would soon follow. In the wake of relatively peaceful revolutions in Tunisia and Egypt, rising protests in Yemen and Bahrain, an apparent effort to bribe away murmuring dissent in Saudi Arabia, and a more bloody revolution in Libya, we have been audience to inevitable crowing from Bush’s supporters and renewed skepticism from his critics regarding the accuracy of this Bush doctrine and the wisdom of the policies it helped to justify. I have no intention to enter this debate, in part because I view efforts to identify a single cause in the complex ecosystems of world-historical events as a fool’s errand, but more because I want to focus on another Bush doctrine, which he described forcefully, if not eloquently, in November 2003 and in December 2005:

I recognize people have—I fully recognize that some say it’s impossible, that maybe only a certain kind of people can be—can accept democracy. I just—I reject that. I don’t agree with that. I believe democracy—the desire to be free is universal.

The fundamental tenet of this Bush doctrine, as I understand it, is that certain commitments key to the American experiment inherited from Enlightenment liberals have a universal salience. There is no doubt that Americans in 1789 and Americans today fail to live up to these ideals. We should, then, be humble and always striving toward greater perfection; but we ought also be proud, more so now, I think.

I am on record here and here for the view that the United States Supreme Court ought to consider international and foreign views on a narrow set of constitutional questions that engage fundamental moral norms. My attachment to that view is Habermasian in spirit: we are more likely to get closer to the truth on these matters by expanding the conversation to include more people with an interest in the outcome. The pride I think we can feel in recent events is born of that same spirit. As people across North Africa and the Middle East fight for many of the rights, freedoms, and political liberties that our forbears identified as truths universal and self-evident, it seems to me that we ought to be proud, not because we did it—that’s the wrong Bush doctrine—but because when a people, in a moment of political and historical opportunity, pursue human rights, democracy, and the rule of law, we can feel ever more sure in our own continued pursuit of these ideals.

A Little Joie de Vivre for an Almost-Spring Day

David Gray — Fri, 04 Mar 2011 15:41:26 +0000

I’ll post something a more serious in a bit, but for the moment I am feeling spring, Zaz, and Ani Difranco.

A TRC for the Bush Years?

David Gray — Tue, 10 Feb 2009 23:35:50 +0000

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.

McCain–Sage of Stability

David Gray — Sun, 01 Feb 2009 01:55:49 +0000

During the ending days of the Presidential campaign it seemed to those on both sides of the Red-Blue divide that we might be facing the end of days; some because a man of African heritage with documented exposure to Muslims might be elected, and others because he might not be elected because he is a man of African heritage with documented exposure to Muslims.

John McCain took an uncomfortably agnostic position in this battle of the social apocalypses. He suggested in the offing that Barack Obama was a man of mystery who had known associations with terrorists that had yet to be fully explained. Yet, Senator McCain was always cautious to stop short of overtly plucking the strings of lingering racism and well-nurtured xenophobia. His running mate was famously, and perhaps shamelessly, much more reckless, as were a substantial portion of his official and unofficial champions. His supporters in the electorate quickly connected the dots marked by the candidates, their deputies, and members of the media who regard the seeding of dark and seething suspicion as simply part of “showbiz,” to conclude that then-candidate Obama was, himself, a terrorist, a “sleeper cell,” a “racist . . . loon” and, quite famously, an “Arab,” and therefore unworthy of trust.

Senator McCain’s response to the “Arab” allegation was not to overtly deny the claim. Rather, he emphasized that Obama is “a decent family man, citizen, [with whom] I just happen to have disagreements . . . .” Senator McCain was criticized for that reaction by some who thought he should have more firmly denied the claim itself, or corrected the underlying assumption of the speaker that Arabs are not to be trusted, but I think McCain’s instincts were right, revealing a pretty sophisticated political theory of social stability with which I agree. More on why after the jump.

President Obama arrived to the national stage on a sleigh of unity, proclaiming that the bi-polar identities that define us are illusory in the light of our shared identity is Americans. A similar sentiment animates his debut to the ball, The Audacity of Hope. It is simple enough to dismiss such views as confusing audacity with naivte. To claim that we are one America is to beg the question of what it is to be an American. It is precisely the contests over that identity, whether overt or hidden behind proxies, which divide us most deeply. Senator McCain’s wild-haired interlocutor is a case study. Her question presupposed that one cannot be both Arab and one of us, just as others during the campaign questioned whether one could be both one of us and Muslim, critical of American foreign policy, or even a resident of a city.

The blunt fact of the matter is that these debates over the “real” America, along with many of the other lines that divide us are intractable, or at least very well entrenched. I do a lot of thinking about mass atrocities, and have been wondering as of late how it is that even in the face of some rather vicious divisions, we remain a pretty stable country while others fall into murderous chaos. A central thesis of my current work is that, ironically, it is our divisions that unite us. After reading a bunch of mid-Twentieth Century literature in political anthropology, particularly E. E. Evans-Pritchard and Max Glucksman, my working hypothesis that stability in society is not achieved by uniform allegiance to a core identity or norm, but by maintaining a diversity of oppositions. The picture is of a highly segmented society fractured along lines of, inter alia, gender, religion, class, ethnicity, race, education, region, family, sports allegiance, beer preference, etc. Critically, each division by necessity implies an association. Individual identity is formed in the space defined by the idiosyncratic overlapping of many circles of inclusion and exclusion described by claims of existential sufficiency. I am a Cubs fan, a Bud man, a heterosexual, an agnostic, a Southerner by birth, a Baltimorean by fate and choice, a Hoo, a Gray, white, etc. Each of these claims implies the exclusion of its opposite, but the length and diversity of the list means that with respect to almost anyone who might live on the other side of one or another definitional line, she and I share space on the same side of others. I will sneer at someone picking up a six-pack of Miller in the store and immediately cut him slack for his Cavs hat.

Healthy, stable societies maintain a sort of dynamic stability by never allowing one line of division to achieve definitional hegemony. That caution makes for the practical impossibility of mobilizing large groups to a program of committed mass violence because diversified segmentation produces social inertia. What goes wrong in abusive regimes is that one or another line of division rises to a level of dominance and becomes fundamental. Thus, the brilliance of McCain’s response. When it was suggested that Obama is an Arab, McCain reinforced social stability through complexity by highlighting several prominent features of Obama’s identity, connecting himself, his audience, and Obama through collateral lines of association. While he could have simply corrected the record by pointing out that Obama is not, in fact, Arab, to do so would have effectively reified the implied division between Arabs and the rest of us. The brilliance of Obama, of course, is that he is a living counter-thesis against a host of many constantly circulating proposals for American fundamentalism (beware the would-be prophet who says you cannot be both, say, a true Christian and a Democrat), which made McCain’s task pretty easy. We can all see something of ourselves in Obama: a left-handed, black man, born of a white mother, Christian, horrifically bad bowler, cool-guy, Crackberry addict, sometimes-smoker, Steelers fan, and, yes, father, and family man, who disagrees with John McCain on a few things.

In anticipation of what may be written in comments, some have criticized McCain for implying in his response that Arabs cannot be good family men. I simply did not take that to be his intended or implied meaning, and see no evidence in his life or record to warrant such a conclusion. I disagree with John McCain on a lot of things, but he’s a Bud man.

Is Accountability Part of the Change Agenda

David Gray — Mon, 19 Jan 2009 00:04:21 +0000

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.

PEBO’s exchange with George Stephanopoulos on This Week last week appears to tell the story:

STEPHANOPOULOS: The most popular question on your own website is related to this. On change.gov it comes from Bob Fertik of New York City and he asks, “Will you appoint a special prosecutor ideally Patrick Fitzgerald to independently investigate the greatest crimes of the Bush administration, including torture and warrantless wiretapping.”

OBAMA: We’re still evaluating how we’re going to approach the whole issue of interrogations, detentions, and so forth. And obviously we’re going to be looking at past practices and I don’t believe that anybody is above the law. On the other hand I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got to spend all their time looking over their shoulders and lawyering.

STEPHANOPOULOS: So, no 9/11 commission with Independence subpoena power?

OBAMA: We have not made final decisions, but my instinct is for us to focus on how do we make sure that moving forward we are doing the right thing. That doesn’t mean that if somebody has blatantly broken the law, that they are above the law. But my orientation’s going to be to move forward.

STEPHANOPOULOS: So, let me just press that one more time. You’re not ruling out prosecution, but will you tell your Justice Department to investigate these cases and follow the evidence wherever it leads?

OBAMA: What I — I think my general view when it comes to my attorney general is he is the people’s lawyer. Eric Holder’s been nominated. His job is to uphold the Constitution and look after the interests of the American people, not to be swayed by my day-to-day politics. So, ultimately, he’s going to be making some calls, but my general belief is that when it comes to national security, what we have to focus on is getting things right in the future, as opposed looking at what we got wrong in the past.

I am on record with my sympathy, both practical and normative, for excusing many of those who carry out the directives of an abusive regime, but I am not at all persuaded that the same argument would extend to those who, while in service of a country whose core values hold sacrosanct respect for basic human rights and the laws of war, were principals or close accessories in acts of torture, even if they did so under the direct authority of a Presidential directive or wrapped in the thin tatters of highly suspect legal advice.

I am more sympathetic with claims that specific circumstances may have demanded the use of harsh interrogation techniques or, perhaps, torture. The affirmative defense of necessity is, after all, clearly established; and I certainly allow that a particular agent may well have done the right thing, all things considered, if he engaged in torture in the good faith and objectively reasonable belief that it was necessary to stop an imminent terrorist attack. However, that sympathy maintains faith in the rule of law. Necessity is an argument for a jury based on the facts of a particular case, and cannot ground either a prospective policy in favor of torture or an uncritical retrospective default amnesty.

Paul Krugman has expressed his concerns with PEBO’s new inclinations toward oblivion, but one is left to wonder “Whence the shift?”

One account traces PEBO’s changed thinking to a meeting with outgoing CIA Director, General Michael Hayden. Hayden has argued publicly that where CIA officers engaged in acts of torture or aided and abetted torture with an apparent nod from the Bush Administration, “[we] have no right to ask a guy to bet his kids’ college education on who’s going to win the next off-year election.” That, of course, sounds like an order-following defense, though cast politically rather than legally. Some outlets also are reporting that Hayden all but threatened Obama that any investigation would result in a strike by line intelligence officers. (I heard something similar on NPR, but cannot find a definitive link—guidance in comments most welcome). That is a maneuver reminiscent of the protests by the Argentine Military that led to both the Full Stop Law and the Due Obedience Law. Of course, these policies inverted the proper relationship between the military and civilian leadership, broke the promise of Nunca Mas,

violated international human rights law, and ultimately were revoked in 2003.

While I am happy to be persuaded otherwise, I find it hard to identify a solid distinction between the Argentine oblivion and failing to investigate, and where appropriate prosecute, violations of law perpetrated under the Bush Administration. As to the message sent by an investigation to those who bravely sacrifice to serve in the intelligence agencies, I think it is clear: You are asked to serve because of your intelligence, skill, and bravery; you choose to serve out of honor. None of these should be left on the dais when you take your oath.

The Best Wines Under $15.00

David Gray — Sun, 18 Jan 2009 02:43:28 +0000

What did I do for New Year’s? Glad you asked.

We gathered a bunch of our best friends together to find the best bottle of wine under $15.00. The model was simple. Everyone brought a bottle of wine that cost less than $15.00. Because many of my friends are completely unworthy of trust, additional rules and regulations were necessary. “Cost” for purposes of the competition was defined as the purchase price before sales and liquor taxes are levied. Wines purchased on sale qualified. Wines purchased with foreign currency qualified if the purchase price in United States Dollars, calculated using the exchange rate at the time of the purchase, was less than $15.00. Wines purchased before 2003 were price-adjusted for inflation according to the standard Social Security Administration COLA formula. Wines purchased at a bulk rate did not qualify unless the price per bottle prior to bulk discount was less than $15.00. Magnums, jugs, and boxes counted as a single unit and were required to cost less than $15.00 as a unit.

Votes were tabulated using the Borda system rather than straight majority vote or a Condorcet-achieving method. That was a choice not without controversy. In fact, it was subject to quite spirited debate. In our opinion, however a Borda method best reflected the goal of achieving a consensus list of best wines, which was worth the sacrifice in the democratic purity of the overall winner.

Each voter ranked his or her top ten choices. For each first-place rank, a wine received ten points; for each second-place rank, nine points, and so on. Any wine ranked on a ballot also received a value bonus of two points on that ballot if the wine cost less than $12.00. In order to avoid discounting, prices were not disclosed to voters prior to or during voting.

1. Claude Chevalier Ladoix $14.99

2. Pierre Span Alsace One 2006 $8.00

3. Greg Norman Cabernet Merlot 2005 $12.50

4. Fincham Red Note 2005 $14.99

5. Trapiche Cabernet Sauvignon 2006 $9.99

6. Tres Picos Borsao Garnacha 2007 $13.89

7. Epicuro Salice Salentino Riserva 2004 $5.99

8. Gouguenheim Malbec 2007 $9.89

9. Denis Gayte Harmonie Cote du Rhone $9.99

10. Ca’Bona Sangue di Giuda $10.99

11. Mas Donis Barrica 2005 $10.99

12. Bordeaux Destournel 2005 $12.99

13. Araino Seleccion 2005 $11.99

14. Collares V.S. 1994 $14.99

15. Crianza Borsao 2005 $13.99

Needless to say, the tabulation took days, and ended in a tie on raw points for first place between the Denis Gayte Harmonie Cote du Rhone and the Epicuro Salice Salentino Riserva, with the Gouguenheim Melbec coming in third, the Tres Picos Borsao Garnacha fourth, and the Fincham Red Note fifth.

Careful readers will note that the wines tied for first both qualified for the two-point bonus, which we discounted to break the tie, leaving the Cote du Rhone the clear winner on taste, though the Epicuro may have won on rhetoric, having benefitted from strong advocacy on the part of its proponent, who suggested to the audience that they simply were not worthy of the far more explosive Tres Picos. He was probably right.

Of course, someone cheated—though it was useful to the enterprise. While purportedly in ignorance, someone brought a bottle of wine that retails for between $50 and $60. Rather than disqualify it (or hide it away for later private consumption), the hosts put the wine in the mix to see what happened. It did not even come close to placing. You might say that’s evidence that I run in rough circles; a charge to which I shall not reply other than to point you to this.

Props to Amanda Pustilnik for telling me about the Brochet study.

Reid, Not Just a Tin Ear

David Gray — Wed, 07 Jan 2009 20:35:06 +0000

For the last few days as the Blagojevich crisis has moved to the District, I have been nurturing a sense that Reid et al. have handled the situation just about as badly as they could while demonstrating that old tin ear so fundamental to democratic politics and governance. As is his wont, Erwin Chemerinsky offers a clear-headed legal analysis in yesterday’s LA Times. He cites Powell v. McCormack for the proposition that the Senate cannot deny a seat to a duly elected or appointed congressperson except on grounds of constitutional ineligibility. While I am not an expert, it seems to me that the Senate has some standing to refuse a seat if state law governing the election or appointment of a candidate has not been satisfied–which appears to be Reid’s current position. Regardless, the point of tone and precedent that animates Chemerinsky’s analysis is dead on. The threat not to seat any Blagojevich appointee was without legal authority, and destined to be called as a bluff, thereby giving Blagojevich a credibility opportunity while painting Reid and the leadership as a bunch of overreaching bullies. The whole game of deferring a constructive meeting until today so as to set up the crisis at the Senate Chamber door also seems to me the worst sort of posturing, and a distraction that serves nobody’s true interests–least of all the agenda of change. If today’s compromise was the obvious and right result, they should have met over the weekend so as to have it in place for yesterday. Most concerning, however, is the demonstrated regard for the use of power Chemerinsky identifies. Is this the new politics? Seems awfully familiar to me.

A shout out to my colleague Bob Condlin for drawing my attention to Erwin’s editorial.

It Wasn’t Me

David Gray — Tue, 06 Jan 2009 04:20:23 +0000

Thanks so much to Dan, Danielle, and the Concurring Opinions crew for this invitation. This is all pretty new to me, but I am looking forward to a fun and interesting month.

In describing the job of law professor, Stuart Benjamin (http://www.law.duke.edu/fac/benjamin/) once told me that “We teach for free and grade for money.” I’m sure it is not his originally, but it’s particularly fitting for this time of year as we face exam and paper piles of various heights and teeters begging our attention. As someone who spent a few years in a PhD program, this feels to me a bit like being a pledge for life—to borrow a phrase from fraternity culture. I spent all those years grading blue books for others’ classes with the promise that some bright-eyed hopeful would someday clean up my messes only to enter law teaching, where we carry our own water. Hard to sigh too hard, of course, but the fact remains that few of us love grading.

It was while putting off grading that I read this interesting and timely article by Paul Bloom in The Atlantic Monthly, cum “The Atlantic,” on models of the self. Anyone with even a moderately complicated internal life is familiar with the subjective phenomenon of wars in our heads between competing goals and desires. Be it a battle between Dionysus and Apollo or André Soltner and Jenny Craig, we all experience the competing pulls of devils and angels, and so it is with grading. I should really grade ten more exams, but I want to see Virginia in the . . . no wait, Virginia wasn’t even Bowl eligible . . . but there are games on, and I’ll have plenty of time to grade once the dust settles from the holidays.

The Freudian account of these moments invites us to think of ourselves as more-or-less holistic beings with competing drives, goals, desires, and interests. I want to be a responsible professional and I also want to kick back with a beer and some leftovers from the New Year’s party. Most of us have been brought up to deal with the conflict by training our super egos to rank, order, and govern so we delay the gratification of our baser desires while nurturing and advancing our higher selves.

Bloom thinks this holistic view both unpersuasive and wanting for descriptive force. In his view, there is no single self, but, rather, a host of competing selves. Part of his account is temporal. There is my “now” self, which tends toward the Dionysian, and my future self, who is, frankly, a bit boring. Part of it is ethical. We all desire both achievement and pleasure. But what’s most interesting about Bloom’s account is his suggestion that there often is a real empathy gap among these various selves. I am happy to leave the grading to my tomorrow self because my today self will not suffer the consequences. And, of course, there are more than just two competitors. Bloom postulates a cacophonous meeting hall of different selves bouncing around and fighting for time on the dais and control of the pulpit, each of them ready to take what they want and leave others to suffer the consequences.

Most of us are fully aware that these many selves are mutually implicated and understand the consequences of choices made now on other valued selves, though varying degrees of dissociation are a given. Some of us have imaginary friends—here Bloom reminds us of a young girl whose imaginary friend, Charlie Ravioli, was “a hip New Yorker whose defining quality was that he was always too busy to play with her,” god I love that—and others talk about our weakness for chocolate cake in the metaphor of a demon, but for the most part the self at the fore feels a sense of duty to and responsibility for other selves as a function of psychic and physical continuity. Thus blame and shame. But we also recognize that this continuity has its limits as metaphor. The concept of reform, after all, entails the idea of a new and different self. Similarly, most of us at some point shed the feelings of guilt for youthful indiscretions.

Ironically, it’s a huge indulgence to start thinking this way. To start, it leads to a host of fun reveries that are ever more engaging that grading. But it also suggests to us that the line between those who suffer multiple personality disorder and the rest of us who are only moderately dysfunctional is blurry at best, and mostly defined by how sympathetic we are with our other and future selves. Our current President was elected on a narrative of having been reborn, thereby leaving behind the youthful indiscretions of his teens, twenties, thirties, and early forties. He can’t be accountable for that conduct . . . it was someone else who got that DUI. Our current Vice-President suggested a similar entitlement to dissociate when asked about justifications for the War in Iraq after the 2004 election. You can’t blame us for that decision . . . it was made by other people whose existence was made moot by the intervening election and subsequent birth of a new administration. The more dissociation and lack of sympathy among selves we are willing to accept, the less responsibility that carries over between the selves that appear and wane at different points in our days and lives.

I’ll have more to say on these themes in later posts, but for now will simply leave those struggling for a reason to reach for the next blue book with the promise that it feels good to do something for someone else. True, the you grading the papers will get no benefit, but as with all acts of charity there is a pleasure in altruism. At least, that is what I told myself as I finished grades over the weekend. Now, of course, the self at the podium can indulge himself with this blog and reading and writing for his current article. He is not without guilt, of course. After all, classes start next week and someone has to step in front of two new classes. Luckily, it’s not me.