Category: Jurisprudence


The OLC Memos

I take up this topic with some hesitation because, to be honest, I would rather talk about something less depressing. Furthermore, I am not sure that I have anything to add to what has already been said about our treatment of high-level detainees (take a look at Sonja’s post below, for example). Nevertheless, I feel compelled to say something following the release of these memos. Putting aside the policy aspects of what was under consideration (if that is possible), three things stand out to me.

First, the analysis leans heavily on the experience of our own military trainees with the techniques in question, which strikes me as a false analogy. The argument in many of the memos goes something like this: (1) torture requires the infliction of severe pain or suffering; (2) when our trainees were subjected to these techniques they did not suffer severe pain or suffering; therefore (3) using this techniques on detainees is not torture. The problem is that point #3 does not follow from #2. As the first Bradbury memo concedes, our troops know that they are just undergoing training and will not be harmed when the techniques are applied to them. The detainees have no such assurance. This is a pretty important distinction, but even after this concession the memos continued to use our training experience to evaluate the severity of the interrogation techniques.

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The Separation of Church and Market?

Over at the NYT’s Think Again blog Stanley Fish has a post on the Obama Administration’s contemplated reversal of the so-called conscience clause, which allows medical professionals to refuse to provide otherwise legal procedure when they have religious objections. Fish presents the issue as pitting the demands of a neutrally applicable law against the demands of personal conscience. He writes:

In a series of cases stretching from Reynolds v. United States (1878) to Employment Division v. Smith (1990), the Supreme Court has ruled that when the personal imperatives of one’s religion or morality lead to actions in violation of generally applicable laws ­ laws not promulgated with the intention of affronting anyone’s conscience ­ the violations will not be allowed and will certainly not be celebrated; for, says the court in Reynolds, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Of course Fish doesn’t quite get the law right. While he is correct that generally claims that the constitution requires the exemption of religious believers from neutrally applicable laws has been a loser in court, the Justices have also been quite clear of late that despite this hostility, it is fine for law makers to create such exemptions as a matter of non-constitutional law. This is my understanding what the Bush Administration did. No matter. We don’t read Fish for the constitutional law anyway. Far more interesting is his connection of the debate to the broader issue of religion in a liberal democracy:

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The Real Face of Shar’ia

800px-IslamicGalleryBritishMuseum3.jpgGenerally speaking, when Americans hear about shar’ia it conjures up images of bearded and turbaned Taliban executioners gleefully stoning women to death in an Afghan soccer stadium. It is an unfair stereotype of a great legal tradition, and it is also one that misses some of the most important issues that shar’ia raises for the modern world. As usual, if you want to find the real action follow the money.

In a nutshell, there is a lot of money sloshing around the Islamic world. 20 percent of the world’s population is Muslim and at least part of the population sits atop oil fields that churn out an enormous amount of cash every day. What is an observant Muslim, one who cares about Islamic strictures against usury to do? Islamic law forbids the taking of interest, but certain transactional structures that allow some return in exchange for tying up capital are allowed. For example, a straight out purchase-money loan with interest secured by a mortgage on a the purchased house would violate Islamic injunctions against usury. On the other hand, if the bank buys the house, leases it to the resident for a period of years, followed by the resident’s purchase of the house at the expiration of the lease for a nominal sum, it does not violate the injunction. The game in Islamic finance is to come up with ways of structuring transactions so as to generate an attractive rate of return for investors without running afoul of the strictures of shar’ia. The result has been a cottage industry of banks and lawyers experimenting with various transactional structures and then rushing to find a reputable Islamic legal scholar willing to issue a fatwah validating the deal for Muslim investors.

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I Trust NFL Referees More Than I Trust Federal Judges

Or at least, I have more faith in their neutrality than I do in the neutrality of judges.

At the Volokh Conspiracy, over the weekend they were talking about the origins of the Judge-Umpire analogy famously raised by now-Chief Justice Roberts in his confirmation hearings. Roberts, of course, was trying to suggest that he was just a neutral arbiter, applying the rules as best he could. Many people understandably found this analogy to be simplistic, or silly, but Ilya Somin rightly notes that “umpring is more complex than some detractors of the metaphor realize.”

But after watching last night’s first preseason NFL game, I would go further than Somin: not only do I think that umpring and judging are a lot alike, but I think that these some of these similarities are in areas that do not refelct well on either judges or umpires, and that, when you compare NFL officials and judges, you have a lot more reason to trust the competence of NFL officials than those of judges. And that’s mainly because (unlike Somin) I think judges and umpires have similar incentives and that the incentives of NFL officials are better.

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Originalism and the Virtue of Constitutional Piety

constitutionalconvention.jpgOver the weekend, I loaded my iPod with a lecture by Larry Kramer and listened to him talk popular constitutionalism while I mowed the lawn. At one point, he went out of his way to insist that he was “profoundly anti-originalist,” a statement that he qualified by saying “if by originialist you mean that we should do something just because that is what the founders said or intended.” My first reaction was that Kramer was responding to a straw man. Originalism is not a form of mindless filial piety, it is a theory of textual meaning and adjudication. The notion that the meaning of a legal text is best construed by reference to the times in which it was written, and that judges are bound by rule-of-law values to ground their decisions in that meaning seems like a thoroughly respectable jurisprudential theory. As I emptied the grass clippings into the compost pile, however, I started re-thinking my reaction to Kramer’s throw-away line. Yes, he was responding to a straw man in so far as judicial or academic originalists are concerned, but surely when it comes to popular originalism there is a certain ancestor worship going on. Might there be something to be said in defense of such piety?

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Cardozo and Posner on Contracts and Torts

Several recent inquiries (for example, here and here) investigate aspects of judicial decision making, including empirical studies of influence, reputation and productivity.

Posner picture.jpgA decade ago, I wrote an article inquiring into the comparative contributions to Contract law of Judges Cardozo and Posner. This was inspired by the former’s dominance of Contracts casebooks and the latter’s ascendency. Ranking judges by the frequency with which their opinions were reproduced in Contracts casebooks, Cardozo was firmly number one, followed by Traynor, with Posner a close third, beating out Hand, Holmes, Swan, Peters and other luminaries.

This affirmed Judge Posner’s enormous influence. It also suggested a small bit of formal evidence of a shift from legal analysis characterized by thickly textured doctrinalism to one consciously focused on instrumental and pragmatic method (although Cardozo showed hints of a proto-pragmatist). Notably, Cardozo’s and Posner’s reproduction frequency shared a couple of similarities. Each had an aggregate of 13 opinions reproduced in the casebooks and 6 of each of these had appeared in just 1 casebook apiece. On the other hand, Cardozo had 2 opinions that were clearly canonical, being reproduced in nearly every casebook, while Posner’s most frequently reproduced opinion appeared in only 2/3 of the books.

This summer, I’m beginning a like inquiry on comparative judicial contributions to Torts. Some similarities and some differences from the Contracts study appear in the preliminary data (being ably developed by my research assistants, Matt Albanese, Dana Parsons and Paul Stepnowsky).

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LawProf as Philosopher-King

brasilia.jpgCarlin Romano’s fascinating profile of Harvard Law Prof Roberto Unger should prove inspiring for any academics who long for a policy role. Here’s a taste:

His political involvement in Brazil dates to the late 1970s, when military dictatorship gave way to a “political opening.” Unger offered his services to the united opposition party. In 1978 he became that party’s chief of staff . . . . In those days, he says with a grin, he consoled himself “during solitary evenings … with readings and translations of Chinese imperial poetry, one of the themes of which is the presence of the exiled intellectual in the dusty steppes.” . . .

In April 2007, [Socialist President] Lula invited Unger for two long conversations in Brasília, then offered him a new position running a “Secretariat for Long-Term Actions.” Unger accepted, informing Lula that he’d start after finishing his Harvard semester. . . .

“I have the only position in the government that is about everything, except for the position of the president,” Unger exults. “He has all power, and I have none. But I have one advantage over him. I don’t have to manage daily crises. I’m therefore free — as he is not — to deal with the future and to deal with our direction. It’s been fantastic.”

Unger’s ideas for change are interesting, though the scholarship that underlies them has gotten a mixed reception in the American academy.

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“For Every Three Judges, Two Are in the Fire”: Richard Posner and the Usul al-Fiqh

I’ve been reading Richard Posner of late, and it strikes me that there is an odd analogy between the his vision of the pragmatic judge and the position of the judge under the classical usul al-fiqh of Islamic law. It seems to me that ultimately Judge Posner’s theory of adjudication rests on a radical rejection of the ex post perspective. On his view all judicial decisions are — and ought to be — forward looking, focusing solely on the consequences for the future that will come from deciding one way rather than another. Of course, a concern for future consequences needn’t preclude a certain respect for past practices, expectations, and rule of law values, but none of this stuff has any force in and of itself. It only matters in so far as it impacts the future. One of the implications of this theory is that the judge can never hide behind the “the law” as a way of distancing him or herself from moral responsibility for her decisions. The law does not dictate particular results in any case. Rather, it is always a matter of the judge making an individual — albeit practically constrained — judgement about what would — all things considered — be best. One doesn’t get any sense that Judge Posner spends much time thinking about the personal moral status of the judge, but it seems to me his theory makes the judge into a radically responsible moral agent. If the consequences of one of Judge Posner’s decisions is really bad, it really is Judge Posner’s fault.

Ulema.pngWhere Judge Posner’s theory of law is radically ex ante, the theory of law (usul al-fiqh) proposed by the classical Islamic jurists purported at any rate to be radically ex post. In theory, all human legislation is a denial of the sovereignty of God, a kind of blasphemy. Rather, a righteous society follows God’s law. This law, however, is finished and complete, indeed according to the dominant theological approach in Islam it is uncreated, a co-eternal emanation of the divine mind. The task of a jurist is to discover the divine law as revealed in the Qur’an and the example of the Prophet Muhammed. Put in more concrete terms, the classical Islamic jurists claimed that every rule necessary for the proper government of society could be discovered — not deduced from or promulgated in accordance with — with the sacred texts of Islam. At this point in their theory, however, the jurists came up against the ultimately unsystematic and ad hoc nature of the Islamic revelation. The Qur’an is not a legal code. Rather it is a collection of “recitations” — often in the form of religious poetry — given by God to the Prophet, often in response to concrete questions or problems raised by the early Islamic community. It was only in the generation after his death that these “recitations” were collected into the Qur’an. Not surprisingly, it takes some nimble exegetical gymnastics to transform this religious ur-stuff into a functioning body of substantive law. What haunted the classical jurists was that they might be wrong in their exegesis. As Marshall Hodgson has written, for a Muslim “every person, as such with no exceptions, was summoned in his own person to obey the commands of God: there could be no intermediary, no group responsibility, no evasion of any sort from direct confrontation with the divine will.” Hence, there was no sense in which a jurist could hide behind some abstraction like office or “the law” to shield himself from full responsibility for his judicial decisions. He was to apply the law of God, and if he got it wrong he was responsible for that mistake.

According to one Muslim legal aphorism, “For every three judges, two are in the fire.” The fire in question here is the hell reserved by God for judges who do not apply His law. Indeed, there are stories of great classical legal scholars who fled from Baghdad at the prospect of being made an actual judge by the Caliph. The reason was that once one moved from exegetical speculation to deciding actual cases, one’s eternal soul was on the line. I don’t think that Judge Posner is much worried about hell fire, but ironically his radically ex ante approach leaves him in a similar moral position personally to the radically ex post approach of the ulema.


Ranking State Courts

Choi, Gulati & Posner have posted an amazing new article on SSRN, Which States Have the Best (and Worst) High Courts?

This paper ranks the high courts of the fifty states, based on their performance during the years 1998-2000, along three dimensions: opinion quality (or influence as measured by out-of-state citations), independence (or non-partisanship), and productivity (opinions written). We also discuss ways of aggregating these measures. California and Delaware had the most influential courts; Georgia and Mississippi had the most productive courts; and Rhode Island and New York had the most independent courts. If equal weight is given to each measure, then the top five states were: California, Arkansas, North Dakota, Montana, and Ohio. We compare our approach and results with those of other scholars and the U.S. Chamber of Commerce, whose influential rankings are based on surveys of lawyers at big corporations.

There’s lots of great, nuanced, analysis in the paper, and a particular emphasis on how congruence & dissonance in ranking systems may help readers/consumers/lawyers better evaluate & build institutions. Of particular interest to readers of California’s gay marriage decision will be the overall, summary, analysis from pages 23-25 of the paper:

“No state emerges as a clear winner, but a strong case can be made that California has the best high court. It has the most #1 rankings on the triangle chart, and the most #1-3 rankings, and is tied for the most #1-5 rankings . . . The top contenders are Arkansas, North Dakota, Montana, and Georgia. If one focuses on common law cases . . . then Mississippi, Rhode Island, and Alabama emerge as the top states. The strong performance of southern states is a bit of a surprise.”

Fun stuff. I wonder what would happen if people drilled deeper and analyzed the relative performance (and influence?) of state trial courts. After all, the trial courts are where the action is, even though studying them is a tremendous pain.

(H/T: Legal Theory Blog)