7

Judge Alito and the Rule of Law

alito.jpeg

I was wrong.

In this post, I predicted that because of a footnote in a 1985 strategy memo, Judge Alito would be unlikely to find much rhetorical purchase by making “paeans to the rule of law” in his confirmation hearing. Indeed, given the Judge’s evident disdain for rule of law and precedent-based defenses of Roe, I thought that the footnote might force Judge Alito to “actually say that he believes Roe should be reversed.”

Today’s headline from the Times:

“Alito Tells Senators That ‘Rule of Law’ Is Paramount”.

That will teach me to try to read tea leaves. It also suggests the tremendous rhetorical flexibility of the concept of the “rule of law.” Now, Nate has already once taken Kaimi and I to task for our co-authored paper that had suggested the “rule of law” is almost entirely a contentless political slogan. Nevertheless, it it still evident to me that appeals to the “rule of law” in the context of public debate are almost always a form of constitutional puffery. Which probably helps to explain why Judge Alito’s “Footnote 10” problem isn’t much of one after all.

41

Annoy someone online (anonymously); go to jail

From Declan McCullagh (link via my annoying — but not anonymous — friend Steve Evans):

Last Thursday, President Bush signed into law a prohibition on posting annoying Web messages or sending annoying e-mail messages without disclosing your true identity. In other words, it’s OK to flame someone on a mailing list or in a blog as long as you do it under your real name. . . . Criminal penalties include stiff fines and two years in prison.

As McCullough notes, there are a number of problematic issues that arise from this. Many legitimate websites include anonymous or pseudonymous writers.

Will this law mean the end for Juan Non-Volokh, Bitch Ph.D., Plainsman, and legions of other psuedonymous and anonymous bloggers? I certainly hope not. Perhaps a big enough backlash from angry bloggers will have positive results.

UPDATE: Dan S. weighs in with a comment. The change in law affects only the intent analysis. Dan’s comment seems to indicate (correct me if I’m wrong) that the statute will still affect only those who send a “communication which is obscene, lewd, lascivious, filthy, or indecent.” (However, assuming you’re engaged in such activity, the “intent to annoy” will be enough to satisfy the intent requirement of the statute).

So it looks like you’re safe — unless you’re sexually harrassing someone via the Internet.

UPDATE 2: New thoughts from bloggers on the further-developing story: Dan Solove argues that the statute does indeed cover more than just sexual harrassment; I suggest that the provision in question may still be limited to cases of obscenity and harrassment; and Kip Esquire goes even further and questions whether the statute covers blogs at all, or whether it’s merely meant to cover internet telephony.

UPDATE 3: Further evidence that this is _not_ the end of the world as we know it: Orin Kerr notes that the First Amendment limits application of the statute; Ann Bartow argues that e-mail and blogs are not “telecommunications devices” under the statute.

1

Sunstein and Barnett at AALS

Some of you missed the Friday morning session at AALS about the Constitution in Exile, with Cass Sunstein and Randy Barnett. It was your loss – the session was phenomenal. It was the best session of any that I attended at the conference (including the blogging session, which was itself very good). Both Sunstein and Barnett are very good speakers, and the material they covered was very interesting.

What I’m posting here is a summary and highlights from my own notes on the session, followed by my more detailed session notes. I don’t claim to have gotten it all, but I think I got the important parts. Hopefully I won’t misrepresent anything in my hastily transcribed, condensed notes; if any of this looks misleading or wrong, please let me know.

Summary and Highlights

Sunstein made the interesting tactical decision to almost entirely avoid the stated program topic during his prepared remarks. (Note: I arrived a few minutes late, so it’s possible that he spent the first 3 minutes on Constitution-in-Exile and then moved on.) From the point where I arrived, Sunstein’s sole nod to the official program topic during his prepared remarks was a curious, wholly unexplained aside that “the idea of a Constitution in exile comes from Judge Ginsburg, and we can be sure others are taking the idea seriously.”

Instead of discussing the constitution in exile, Sunstein spent his prepared remarks focusing on the possibility of a Burkean minimalist approach – basically, a minimalist approach that would also place a high value on tradition. His comments were quite interesting. He said that he evaluated competing interpretive approaches based on consequentialist criteria, and that based on consequences, originalism was unacceptable. He noted that originalism would make sense in some possible worlds, but that this world is not one of them.

Barnett, not surprisingly, took Sunstein to task for skipping out on the stated program topic. Barnett effectively criticized Sunstein’s use of the term “fundamentalist” in his new book, but then went into a not-entirely-convincing side argument where he compared Sunstein’s liberal credentials to his own.

Barnett made the argument (which he has previously made on blog) that there is no Constitution in Exile movement, and said that the lost constitution is not the Republican Party’s ideals, but rather the constitutional provisions that no longer operate (e.g., 9th amendment, 2nd amendment, privileges and immunities, and so on). He closed with some thoughts on Sunstein’s newly-articulated Burkean minimalism discussion.

In the responses and then the Q and A, a number of interesting points came up. First, it was quite clear that Sunstein and Barnett explicitly agreed on many things. They agreed on the need to judge interpretive approaches by consequentialist criteria. Barnett stated that his approach is “identical at the meta level to Cass; we disagree about results.” They also agreed that Justice Scalia is not really an originalist – Sunstein alternatively labeled him a “fainthearted originalist” and a “perfectionist” while Barnett labeled him a judicial restraint person.

Disagreements came up as well. In particular, Sunstein pushed back on the constitution in exile meme that he had avoided in his opening remarks. He argued first that “there is a movement, but Randy isn’t part of it.” Who then comprises the movement? He mentioned unnamed persons in the Meese justice department; unnamed Republicans; “fundamentalists.” He asserted that this group comprises a “monolithic political movement” (which still, to me, sounded like a dodge).

However, when pressed, Sunstein came up with his most effective argument of the morning relating to the “is there really a movement?” question. Hammered by Barnett and by questioner David Bernstein, who focused on disagreements between conservative academics, Sunstein fired back: “Even though Brennan and Marshall disagreed on many things, it would be disingenuous to say that there was no movement on the Warren court.” From there, he pointed out that it is quite possible that a Constitution-in-Exile movement could exist even though many of its proponents disagreed on some of the details.

Other interesting notes: Barnett articulated the idea that originalism is a protection against rootless pragmatism. Barnett argued that “today’s conservatives are unreconstructed New Deal jurisprudes; progressives are reconstructed” (which drew a “What!?” from Sunstein). Sunstein elaborated on minimalism, arguing that there is no Thayerian on the court today; there is no Frankfurter. “The closest we have is Breyer, and he’s not very close.” Barnett asserted (not particularly convincingly, I thought) that “most conservative Republicans are perfectly satisfied with the New Deal jurisprudence.”

Expanded notes below the fold.

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3

Langdell, Eliot, and the Rise of Blogging

langdell.jpgI, alas, missed the discussion and fireworks at the

AALS’s session on blogging, but it does strike me that blogs are a very nice illustration of one of the basic dilemmas that the legal academy faces. The American law school as a post-graduate institution staffed by specialized academics focused on research and publishing is a creation of Christopher Columbus Langdell and the Harvard Law School of the 1870s through 1900. It is no accident that the American law school came out of Harvard during this period. Langdell was hired by Harvard president Charles Eliot, who perhaps did as much as any other person to set the patterns of higher education in modern America. Eliot, in turn, was modeling Harvard — which became the model for America — on the great German research institutions of the 19th century. Hence, it was Eliot who pushed the notion of the Ph.D. as the necessary precondition for professorhood, and valorized disciplinary autonomy and specialization. In a very real sense, all American academics live in the world that Eliot made.

eliot.jpgThe problem, of course, is that the law school created by Eliot and Langdell carried within itself two anomalies that continue to haunt legal education in America. First, in contrast to the other academic career paths that Eliot was doing so much to regularize, law professors got the same education as their students. There is no special educational track for law professors, at least formally. The result, of course, has been an informal track, i.e. top-ten law school, law review, appellate clerkship, etc.. I actually think that the training provided by this informal track is quite good in many ways, but the legal professoriate continues to be haunted by anxiety about the academic status of their education. (This point is wonderfully illustrated by the fact that there is no consensus on what sort of academic regalia a juris doctorate is entitled to: Do they get a mortar board like bachelors degrees or masters degrees, or are they get to the soft square cap of the doctorates? Different schools take different positions.)

The second anomaly was Langdell’s faith in the law as a self-contained and autonomous discipline, a faith that began to crumble even as Langdell was evangelizing it. We like to think of the proliferation of various “law & ….” movements as a post-1970s phenomena. There is some truth to this. Indeed, I think that there are even good demographic reasons for the proliferation: The draft created enormous incentives for baby boomers to remain in graduate school for as long as possible, and as a result many humanities and social science minded people who would never have dreamt of jurisprudence packed themselves off to law school to avoid the Mekong delta. In the fullness of time, many of these war-created lawyers abandoned the practice of law for the academy, largely as a way of escaping a profession that they were never that interested in in the first place. Still, it is not as though the law reviews during the whole of the twentieth century did not play host to waves upon waves of anxiety about the intellectual status of legal thought.

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0

Great To Be Here

Thank you to Dan, Dave, and the rest of the CO Gang for inviting me to make a guest appearance here. I suspect I’ll spend much of my first week commenting on the Alito hearing, which connects nicely to my scholarly and teaching interests, but whatever the nature of our discussion, I am very much looking forward to taking part in this virtual community of legal reflection.

In the weeks ahead I will try to take my responsibilities here seriously, knowing that CO’s reputation for analysis and insight is both important and the product of many individuals’ hard work. I fully expect also to have some fun, which should be easy given the wit and good humor of my co-bloggers.

Incidentally, the youngster in the photo with me is my son Steven, who will be 4 next month. Laura and I also have another son, Michael Jr., who is 5.

1

Christine Hurt on Blogging and Gender

female2a.jpgChristine Hurt (law, Marquette) at the Conglomerate discusses the issue of the disparity between male and female law professor bloggers. According to my latest law professor blogger census (November 2005), about 75% are male and 25% are female.

Part of the reason may be that female law professors are still severly under-represented in the legal academy. According to a Legal Times article, about 25% of fully-tenured law professors are female. In total, about 34% of law professors are female. There’s more equality when it comes to more junior female law professors. Over the last ten years or so, about 45% of newly hired law professors have been women.

1

Judiciary Committee to Vote on Alito by September [sic] 17, Specter Hopes

Over at How Appealing Howard links to this Newsday article, in which there is a humorous typo (one hopes) about concluding the hearings and taking a committee vote on Judge Alito’s nomination by September.

More significantly, it notes that the Republicans are expected to continue to stress Judge Alito’s qualifications and the rating the ABA has given him. This seems awfully short-sighted to me. The Republicans want to say to Democrats, “Even your shill organization likes this guy,” but in effect Republican use of the ABA ranking will legitimize the rankings — exactly the result the Republicans do not want for the long term, because of the ABA’s (at least perceived) liberal bias. The more Republicans argue that one’s qualifications should be enough to ensure confirmation, the more difficult it will be to oppose liberal but qualified nominees from Democratic presidents. Senate Republicans should be preparing for that eventuality now instead of just focusing on the present.

12

Green Bag Honors Good Legal Writing from Past Year

The Green Bag has published its first ever “Almanac of Useful and Entertaining Tidbits for Lawyers & Reader of Good Legal Writing from the Past Year: Selected by the Legal Luminaries and Sages on our Board of Advisors.” (whew!–it’s a lawyerly mouthful; too bad the editors couldn’t practice what they’re preaching).

The top vote-getters in each category:

1. OPINIONS AND ORDERS

Honorable Paul H. Cassell, U.S. v. Angelos, 345 F. Supp.2d 1227 (D. Utah 2004)

Honorable Alex Kozinski, In re Complaint of Judicial Misconduct, 425 F.3d 1179 (9th Cir. 2005) (dissenting)

Honorable Mark P. Painter, Kohlbrand v. Ranieri, 823 N.E.2d 76 (Ohio Ct. App. 2005)

Honorable James M. Rosenbaum,Rohwer v. Federal Cartridge Co. 2004 U.S. Dist. Lexis 23744 (D. Minn.)

Honorable Antonin Scalia, Roper v. Simmons, 543 U.S. 551 (2005) (dissenting)

Honorable Diane P. Wood, Gore v. Ind. Univ., 416 F.3d 590 (7th Cir. 2005)

2. BOOKS

David Currie, The Constitution in Congress: Democrats and Whigs, 1829-1861 (Chicago Univ. Press 2005)

Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (Henry Holt 2005)

Sadakat Kadri, The Trial: A History, From Socrates to O.J. Simpson (Random House 2005)

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12

Blogging Without Tenure

lawprofessor5.jpgAt a panel at the AALS conference this year entitled Blogging: Scholarship or Distraction?, Randy Barnett suggested that blogging may not be wise for untenured legal scholars. [Paul Caron of TaxProf Blog (and overlord of the Caron Law Professor Blogging Empire) has the complete highlights of the panel here.]

Is blogging advisable for untenured scholars? I bet that the answer differs in each specific discipline, and I’ll focus my observations on the law. I believe that blogging can be great for untenured legal scholars, but it must be done in the right way.

I. BENEFITS

Why is blogging good for the younger legal scholar?

1. Exposure and Name-Recognition. Blogging brings a level of exposure that junior scholars often do not achieve until much later on in their careers. More people will get exposed to their ideas, read their work, and recognize their name. It often takes years of networking and publishing to develop name recognition in legal academia. Blogging provides a head start.

2. Symposium Invitations. When law reviews or professors are planning symposia, they often brainstorm about whom to invite, and those who most readily come to mind often wind up on the list of presenters. Junior scholar bloggers are at an advantage since there names are more likely to be known.

3. Exposure Beyond One’s Field. Blogging enables scholars to get exposure outside of their fields. There are many scholars whose work I generally won’t be familiar with because I’m not researching or writing in their area. Unless those scholars are particularly well-known, I won’t be too familiar with them. But I may know about them from the blogosphere. When somebody asks me who writes about corporate law, a field I know little about, I immediately think of the folks at the Conglomerate or of Dave Hoffman or Nate Oman here at Concurring Opinions.

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2

Introducing Guest Blogger Robert Tsai

robert-tsai1.jpgWe’re very fortunate that Robert Tsai will be joining us for the next few weeks. Robert is an assistant professor at the University of Oregon School of Law. He graduated from Yale Law School, where he was an editor of the Yale Law Journal, and then clerked for U.S. District Judge Denny Chin, S.D.N.Y., and the Honorable Hugh H. Bownes, U.S. Court of Appeals for the First Circuit.

Among Robert’s recent articles are Fire, Metaphor, and Constitutional Myth-Making, 93 Geo. L.J. 181 (2004) (discussing metaphor and free speech); Sacred Visions of Law, 90 Iowa L. Rev. 1095 (2005), (exploring the symbolic role of Marbury v. Madison and Brown v. Board of Education); Democracy’s Handmaid, forthcoming in 86 Boston U. L. Rev. (2006) (examining democracy, popular language, and constitutional law). Other papers by Robert are available on SSRN here.

Robert also has a forthcoming book about the First Amendment with Yale University Press: Eloquence and Reason: Cultivating Freedom of Expression.

Please give Robert a warm welcome!