Nine Scorpions

2005-12-16T13:52:00.000-06:00

The other day I tried an odd little site, recommended on Waterbones, that claims the ability to tell one what sort of music one likes. Apparently the designers have undertaken to classify all (or at least popular) music by a finite number of qualities that a cut possesses, and to recommend music to a listener based on the qualities, independent of artist or genre, exhibited by a seed recording chosen by him. One can give it input along the way by approving or rejecting particular cuts it plays. I found it entertaining, though more for its failures than its successes.

The context in which the device actually contrived to play mucic I liked was when my seed artist or cut belonged to a fairly distinctive genre. I entered, for example, Desmond Dekker, and the thing played, surprise surprise, a stream of rocksteady, which I know I generally like. But whenever it tried to branch out at all, usually by emphasizing the "reggae feel" quality at the expense of others, it came up with a bunch of Bob Marley drivel. Likewise, in the realm of country music, "pop a top" by Jim Ed Brown generally brought up decent old songs by Conway Twitty and such like, but I continually had to admonish the program when it played vile modern C & W, which it seemed incapable of distinguishing from good old honky-tonk. More nebulous genres left the algorithm at an utter loss. Tom Waits's "Heart of Saturday Night" conjured up a procession of unspeakably fatuous singer-songwriter types.

There are several obvious reasons, I think, why any system of classicfication intended to define the things any given person likes about music is desined for failure. The first is of course that there are simply too many things a person might like or dislike in a song for any mortal to compile. Indeed, I believe the qualities I enjoy in rocksteady--vigorous High-Life-like dance beats and certain chord progressions--are quite incidental to whatever characteristics Pandora ascribes to it, which is why any departure from the genre deprives it of its appeal. Indeed, some of the criteria are too coarse for obvious reasons. At some point the program decided I liked the use of "slide/pedal steel guitar," which is half true and half decidedly untrue. I am very fond of the articulate pedal steel lines in old honky-tonk, but I am incensed by the self-consciously-hillbilly dobro used in most modern country music. Second, of course, a lot of music's characteristics are at least partially subjective. The compilers of the "Music Genome Project" couldn't well identify songs as having an "obnoxious vocalist," "vacuous lyrics" or "annoying overproduction," though these were all major factors in my rejection of most songs. Third, there are reasons for liking or disliking something as emotionally-associated as music which have nothing whatsoever to do with the music itself. No program could be expected to know, for example, that I don't really like to listen to Gordon Bok because my mother used one of his albums to put me to sleep for years, and I've grown weary of his voice.

So if your musical tastes incline toward some fairly obvious criteria (like a "busy brass section," or "ska roots") you may well get some good ideas from the site; otherwise you can just use it to reassure yourself of your superiority to haphazardly-concocted internet amusements.

Postscript: The one quality shared by most of the music I liked, in case anyone was wondering, is apparently "mild rythmic syncopation," which I take to mean that it has a certain danceability--hence, perhaps, rocksteady and honky-tonk, but not reggae or country. Moreover, I don't mean to say that I've discovered nothing of interest on the site: I ran across, for example, an entertaining Buck Owens cover of "Save the Last Dance."

2005-11-16T10:42:00.000-06:00

I think the New York Times is being rather conciliatory on the issue of intelligent design, and in doing so illustrates what I believe to be the flaw in the entire discussion. I don't necessarily think, as some do, that the problem with intelligent design is that it fails to confine religion and science to their proper spheres. For one thing, religion defies nearly every sort of definition, since its nature and extent are determined solely by the whims of its founders and adherents. It irritates me, therefore, when the self-proclaimed arbiters of such things take the attitude that religion should be confined to affairs of the spirit, and science to the natural world--a sort of you-play-in-your-half-of-the-sandbox compromise that politicians might broker, but which is antithetical to the boundless claims of religion. I think, rather, that it is the purpose of science that has been misapprehended by most in the controversy. In particular, I take issue with the assertion that science's purpose is to "explain" things.

The issue of scientific explanation is touched on by the latest post at Querencia. The post itself concerns the relationship between art and science, and I won't comment on it. But it quotes a passage from one of Wendell Berry's more recent works, in which, characteristically, the author gets worked up about the inability of science to explain certain things, like art and other good stuff. Although Berry is never one for nailing down his terms, it seems from the context that by "explanation" he means something like reducing things to their elements. That is, he seems to think of scientific explanation as a process in which a multiplicity of things are reduced to their common principles, a very Peripatetic view of the scientific enterprise. He is terribly worried that just because we can discover the principles of certain things we will think we can do the same with all things, which grates on his artistic cum agrarian spiritual sensibilities. But I would advise him not to get his knickers in such a twist over science itself. The project of science since the renaissance has never been to explain things in the sense of discovering their fundamental nature. Indeed, the very success of science over the past several hundred years is entirely a consequence of its limited scope. Science's sole purpose, by definition and necessity, is to order phaenomena.

Science, as such, has only been concerned with one thing: predicting what we will perceive (there is, from an epistemological perspective, a potential disjunct between what one person and another might perceive, but science has given up on this issue long ago). That is to say, the only purpose of science is to order phenomena in the most comprehensive way possible, with the success of that project being determined only by how neatly the new phenomena fit into the old classifications. Thus, for example, the purpose of astronomy is to classify the movements of celestial bodies, and a good astronomer can predict eclipses. If he takes to imagining what the heavens tell him about the nature of God, he becomes a mere astrologer. The animating force behind scientific discovery is always a search for the power to predict, and often the power to manipulate what we see. This assertion is true even of sciences such as paleontology and evolutionary biology: even they can only be confirmed or disconfirmed by their ability to predict present phaenomena--the rest is woolgathering.

The problem arises when the statements made of phaenomena are construed to be statements about some thing, that is, that there's a world beyond the phaenomena out there that has some significance beyond the perceptions we have of it. To ascribe mysterious significance to phenomena is all very groovy, of course, and is what religions mostly concern themselves with: but science can't care about such claims. To the extent that it does care, it ceases to be able to make the unequivocal statements that it must. The purported controversy between actual science and theology is therefore strictly manufactured. To the extent that religious doctrine conflicts with what scientific observations imply about the "things" that are conceived to underlie them, it is quarreling with a straw man, since science can make no claims on this score. I, as a Humean, might scoff at the notion that we can ever "pretend to know body otherwise than by those external properties, which discover themselves to the senses"*; but everyone's entitled to his opinion. When one's receiving the Eucharist at a protestant church, I can assure you that the portions handed out in clear plastic receptacles, with none of the surreptition employed by papists, gives ample assurance from all five senses that one is consuming nothing but grape juice and crackers, yet it is in the refusal to believe these sensory impressions that religion resides. Furthermore, to the extent people actually deny the sensory impressions themselves, they are simply lying (or else, as mentioned above, there is no commonality of experience, and we all have much bigger problems).

I therefore contend that the N.Y. Times article spends an unnecessary lot of argument dithering over various definitions of the scientific method, in order to make the assertion that by removing the requirement that explanations be "natural" from the definition of science, the Kansas Board of Education has altered the fundamental traditions of scientific philosophy, as defined by a designated list of pointy-heads. The flaw in both definitions is that they both claim science explains things, though it does nothing of the kind. I find particularly muttonheaded the parting shot about how science is not incompatible with religion because both are ways to "understand the divine." Any remarks Galileo may have made to that effect assuredly derived from his and his audience's undue familiarity with Aristotle, and consequent inability to penetrate entirely the intellectual fog of the dark ages. As an example of science's true allegiance and purpose, witness that Galileo himself was not a cleric, but calculated gunnery tables for a living. I don't by any means wish to say that one cannot seek the divine by perceiving the natural world (as opposed to classifying one's perceptions of it), but that's a rather different subject.

* David Hume, A Treatise of Human Nature 64 (L.A. Selby-Bigge ed., 2d ed., 1978).

2005-11-02T11:35:00.000-06:00

I must say I'm rather pleased with what I've heard about Judge Alito. He seems a reasonable sort, hated by all the proper factions (People for the American Way, Lambda Legal, etc.). Indeed, if the accounts I've read of his dissent in the machine-gun case are accurate, he was an early supporter of the new federalism, which is almost more than I can say for Scalia at this point. Witness how admiringly I gaze on his august countenance, unaware of the treachery that lurks in his heart even then, but I digress. In any case, the replacement of O'Connor with someone willing to constrain the subject matter of federal regulation would have no net effect, since she herself was one of the dissenters in Raich. It is, rather, on individual rights issues that we could probably expect better things from Alito than O'Connor.

One of the cases I've seen mentioned in the news as being one in which Alito's participation could alter the result is Rumsfeld v. Forum for Academic and Institutional Rights, a case out of Alito's own Third Circuit, but on whose panel he did not sit. The case is not, as FOX News claims, "a gay rights appeal that involves the Pentagon's 'don't ask, don't tell' policy." The legal issues have little to do with the military's policy on homosexuality, and nothing whatsoever to do with "gay rights." It is, rather, a First Amendment free expression case, challenging the Solomon Amendment, which conditions the receipt of federal funds by academic institutions on their granting military recruiters the same access and favor as the institutions give to other employers. Needless to say, most fashionable universities want nothing to do with the military, and resent being obliged to facilitate military recruiting in any way. In particular (and this is where the ignorant might derive the notion that homosexuality is somehow at issue), the plaintiff universities complain that allowing military recruiters on campus dilutes their message of tolerance and inclusiveness, because the military won't hire overt homosexuals. I suspect the outcome will depend on whether the Court buys the distinction the Third Circuit draws between this case and the National Library Association one decided in 2003.

But I would like to air one misgiving I have about Alito's opinions, as reported by newspapermen, which is his purported indulgence toward free exercise claims, and reluctance to apply the standard set forth in Employment Division v. Smith. Smith, as everyone knows, was the one involving religious use of peyote by members of the "Native American Church," and established the standard under which courts review claims that government is prohibiting a person's free exercise of religion, in violation of the first and fourteenth amendments to the Constitution. The case arose out of the plaintiff's being fired from his job for using peyote, and subsequently denied unemployment benefits by the state of Oregon. The case was only decided by the Supreme Court after the Oregon Supreme Court determined that state law prohibited the use of peyote entirely, with no exception for religious use. Consequently, the reasoning of Scalia's opinion is directed largely at the validity of this broader prohibition, rather than at the issue of unemployment benefits, on a sort of greater-includes-the-lesser theory. Scalia held that the Constitution does not prohibit states from enacting laws that place incidental burdens on religious activity. As he reasoned, religious activity potentially includes every sort of activity, and so carving out exceptions for every religious practitioner either makes every man a law unto himself, or places courts in a role that would almost certainly be repugnant to the framers--of deciding what is legitimate religious practice and what isn't. Instead, the Court held, the standard should only be one of whether government, in enacting the law, intended to place a burden on the practice of religion. This standard also has the advantage of requiring courts to perform a function to which they are better suited: lawyers are lousy at making policy decisions about whether a government objective is more important than the religious practices of individuals, but they are well-trained in determining the purpose of laws.

The new standard didn't sit well with a large section of the public, and therefore with elected politicians. The Congress passed the "Religious Freedom Restoration Act," which purported to ratchet the free exercise standard up to include the old effects test. But the Court rebuked it in City of Boerne v. Flores, holding that, because the Constitution does not protect free exercise against incidental infringements, Congress was not acting under its Fourteenth Amendment powers when it enacted the R.F.R.A., which was not supported by any other power and consequently invalid as ultra vires. (Cf. my earlier post on Tennessee v. Lane.) Evangelicals still don't like the decision, however, which is probably why social conservatives are proclaiming with such relish that Alito doesn't like it either. I don't really care as a matter of outcomes--O'Connor was the only justice really to bail on Smith when it came down to deciding Boerne, so Alito's appointment won't change anything even if he doesn't like Smith. But I do actually care about the shift from "balancing" to "intent" tests, which I consider one of the most significant contributions to judicial sanity by the Rehnquist court, and one that might be furthered by O'Connor's absence. Indeed, the only way I can begin to forgive Scalia for concurring in Raich is by telling myself that he did it all in the interest of returning to a purpose-driven analysis to the enumeration of powers (though a somewhat muddle-headed one), but the road to reconciliation will be long.

2005-10-21T22:30:00.000-05:00

If anyone's wondering why I've become so prolific of a sudden, after six months of silence, it may have something to do with the sense of responsibility I feel at having been referred to as a "blogger" by Steve, or with the fact that I seem temporarily to have acquired a fan in the lovely and talented Larissa. But I must confess that the principal reason is my having recently gotten some work that, on an hourly basis, is reasonably lucrative (In your face St. John's College!), and which I must therefore avoid doing as long as possible. Ah, procrastination, my old love--how I've missed you in these months of idleness!

2005-10-21T20:27:00.000-05:00

This article contains a few interesting points on New Mexico chile cultivation, including the observation that there are regionally developed variations within the variety traditionally identified with the state. I myself have noticed that I generally prefer northern-grown pods to the bitterer, more common ones from Hatch, but had always ascribed the difference to chile terroir (which may nevertheless be a factor). I am obliged to disagree, however, with Mr. DeWitt's observation that "[t]he earliest cultivated chiles in New Mexico were . . . considered a spice," and that "'[t]he No. 6 variety [bred in 1950] changed the image of chile from a ball of fire that sent consumers rushing to the water jug to that of a multi-purpose vegetable with a pleasing flavor'" (quoting Roy Nakashima). On the contrary, Josia Gregg observed on page 154 of Commerce of the Prairies, an account of his travels to New Mexico in the 1830s, that "[c]hile verde (green pepper), not as a mere condiment, but as a salad, served up in different ways, is reckoned by [New Mexicans] one of the greatest luxuries." We see then that the purported pungency of the more ancient varieties of chile was no impediment to Spanish colonists' eating it in its entirety; the breeding of milder, more consistent varieties could only have made chile-eating more accessible to wusses. Furthermore, the arid climate in New Mexico is usually prompting enough to rush for the water jug, but in any case add proper hydration to the myriad of other salubrious effects that may be ascribed to eating chile.

2005-10-21T16:19:00.000-05:00

I just had my first look at the Alpha Environmentalist, whose author I was privileged to meet at the aforementioned nuptials. I very much like the general character of the blog--sort of like Ted Nugent if he were intelligent, cultured and genteel, so actually not much like Ted Nugent at all, but you catch my drift. I'm sorry to say that I've never attempted any of the first three things on his list of qualifications for being an alpha environmentalist, but I'd like to submit my application with the following substitutions: (1) I can start a fire with flint and steel; (2) I can clean, load and fire (with tolerable accuracy) a muzzle-loading rifle; and (3) I can make paper out of yucca and milkweed bast. Just to be on the safe side for any corners I may have cut on the remaining eleven, I'd also like to note that I can probably identify at least 50 species of reptile and amphibian, and average over eight miles an hour on cross-country skis. And, although I've never tried, I think I could probably hike almost 20 miles in a day if I put my mind to it. Peculiar and I did about 15 over uneven terrain after breakfast once, and still had time and daylight enough to get a burger in Mexican Hat.

My favorite reason to hate the prospect of Justice Miers

2005-10-20T12:04:00.000-05:00

I had a reprehensibly good time a few weeks ago at the marriage of Peculiar and Jack. The wedding was so happy and festive, the wedded couple so handsome, and their union so affectionate and true that it was almost enough to shake the foundations of my cynical weltanschauung; but I enjoyed myself anyway. At several points during the weekend, I found myself in heated agreement with Steve Bodio about the President's nauseatingly fatuous choice to replace Justice O'Connor. As he observed, it really is a pity that the two of us can't manage to talk about pleasant, trivial things when we're drunk, like most people seem to do, but must always turn our conversation to some dire question of academics or politics. The problem that arises from this habit in my case is that I frequently find myself struggling to express some opinion--carefully formed and considered while sober--through the fumes of a bottle or two of red wine, which are vying for leg room with the other clutter in my head. I therefore have a hazy recollection of shouting repeatedly "The real reason intellectual conservatives like us hate Miers is . . . ": but I can't recall what else, if anything, I managed to express. As a belated follow-up to that conversation, I'd like to offer a reason for hating the nomination beyond the handful or so that have been commonly cited by most conservative commentators.

The one nice thing the nomination has done is to reassure me that most conservatives are not mere heedless zombies under the spell of the Bush administration. I had begun to fear that Republicans would follow W over a cliff, if it came to that. But conservatives of all stripes have gleefully begun denouncing the nomination, and the administration with it, for reasons ranging from "her nomination solely because she is an evangelical woman cheapens the very meritocratic principles the Bush administration was supposed to champion" (the National Review) to "she's so butt-ugly she'll make Ruth Bader Ginsburg the pretty one on the Court" (my friend Bronson). But one reason, and one that fits nicely with the axes I usually grind, is that Miers has never, in her long career, evinced any inclination whatsoever for serious legal scholarship.

Now, I do not mean merely that Miers has no experience with constitutional law, which is irrelevant to my ultimate point, or that she's dumb, which on a Roberts-Scalia-Souter scale she almost certainly is, but which has been widely observed. What I mean is that she has never shown a capacity for taking difficult, analytical legal issues and teasing them out into a rational order. The U.S. Supreme Court does not just meet once a year and vote on whether states can place restrictions on abortion or the Ten Commandments on public property. What seems to escape many outside the legal field (including, apparently, Bush) is that the bulk of the work done by the Court does not involve weighty moral dilemmas or simple policy choices: it's the nitty-gritty of justiciability, arcane criminal procedure, commercial law, tax, etc. Harriet Miers, with her S.M.U. law degree and apparent history of having as little to do with the law as is possible for a professional lawyer, would probably contribute very little to this less glamorous struggle.

(Those of you--probably all of you--reading this post solely out of politeness may skip the following paragraph, as it contains most of the poorly-explained legal doctrine I always need to inject into my posts.)

I'll give a brief example of the sort of opinion I hoped would be produced less frequently by the Court after Bush's nominations, before my hopes were dashed to smithereens by this latest act of cronyism (doesn't W at least have some brighter cronies, damn it?). In Mosley v. Victoria's Secret Catalogue, Inc., the Court supposedly granted certiorari to decide an issue that had been plaguing the courts of appeals for some time. Without going into too much detail, the issue was whether, under the trademark dilution section of the Lanham Act, a plaintiff has to show that his mark has been actually diluted (i.e., that he has suffered some demonstrable harm from the dilutive mark), or whether a plaintiff can win merely by showing that the defendant's activity is likely to cause damage to the plaintiff's mark. For the first position, the arguments are that the statute actually says "causes dilution," and that it would otherwise be extremely easy for the owners of "famous marks" to enjoin nearly any use of marks similar to theirs. On the other side is the argument that the statute seems, in its general purpose, prophylactic; it would therefore make little sense to require plaintiffs to wait until the damage has been done before suing. A fairly complicated issue, but one presenting pretty clear alternatives. One would think the most sage court in the land could come up with a decisive reason for going one way or the other. And, sure enough, the Court voted unanimously and decided . . . nothing. At least nothing coherent. Stevens, writing for the Court, first noted that it indeed made no sense to require a plantiff to prove economic damage before suing for an injunction. He then went on to say that the statute required proof of actual dilution somehow (without suggesting any alternatives to showing economic damage), and remanded to the poor wretched Fourth Circuit for "proceedings consistent with this opnion," as if it weren't hard enough to make the opinion consistent with itself. To top it all off, Justice Kennedy wrote a "concurrence," which reads like an argument in favor of not requiring any proof of dilution, but somehow agrees with the majority in its reversal of the Fourth Circuit.

All this just goes to show that it can be really hard to get even a bunch of career nerds like the USSC to take enough of an interest in dull topics like trademark law to develop a coherent jurisprudence; yet these issues are just as essential to the Court's role--indeed more so, I would argue, since deciding them is something that can really only be done by them, as opposed to the sexier usurpations of legislative function that the Warren Court began. It is for this reason primarily that we need smart people who love the law, not policy, on the bench.

And so, Steve, at least one of the things that I'm sure must have been running through my head as we sprayed red droplets on each other's dress shirts in our haste to make our opinions known is that Harriet Miers, no matter how she votes or makes Republicans look, can can do considerable damage just by being scholastic dead weight on a court that is already struggling to maintain a consistent jurisprudence on the myriad of dull, commonplace issues that constitute 90% of its opinions. And I do hope your shirt came out as relatively unscathed as mine.

2005-03-25T09:59:00.000-06:00

I had promised myself that I wouldn't comment on the lurid circus that has occupied the first slot in the news of whatever medium for the past week, although it does illustrate some points a propos of the general theme toward which my infrequent posts have tended. But then Voracious Reader joined the clamour and, as it were, invited my response. In failing to check myself, I admit I fall prey to that base, nearly universal impulse to prove one of my father's favorite maxims, namely, that opinions are like a---holes: everybody's got one.

As a preliminary matter, I should like the score to reflect another victory for my notion that the judiciary remains a largely non-political organ against the efforts of laymen and news media to reduce it to a product of judges' personal whims and politics. If you'll recall, as soon as the Congress passed the act giving jurisdiction to the Western District of Florida, the networks and papers al began to speculate intensely about how "conservative" or "liberal" judges on that district were, as though that issue would somehow be determinative of whether the parents would get their TRO. As it happened, the media's speculation seemed to be borne out in the district court, since the case was assigned to a Clinton appointee who denied the petitions. Encouraged by this succes, Fox News, if memory serves, began to speculate about the ideological composition of the 11th Circuit, noting that they were largely Republican appointees, and quoting some professor from Western South Central Florida Snobby-Eater College of Law and Brake Tuning, or some such, who driveled "if you get two Republicans on the panel, this gets overturned in a heartbeat." As it tuned out, the literal truth of his statement was never put to the test, since the panel comprised two Democrats and a Republican; but the Republican joined the majority that upheld the denial, and it was a Democrat who dissented. Moreover, on the motion for rehearing en banc, only two of the dozen judges voted to grant, meaning that at most one Republican on the entire court disagreed particularly strongly with the district court's ruling.

To top it all off, not one of the justices on the Supreme Court even wrote to disagree with the refusal to award emergency relief--not even Justice Scalia, whom the ignorant commonly regard as a tool of Papists and religious conservatives. Indeed, I think Scalia would be the first to recognize what everyone with a decent grasp of federal jurisprudence, regardless of their stake in the result, realized the minute they read the Congress's emergency legislation: there isn't even the shadow of a substantive claim under federal law. Nor, in any circumstance other than this one, would any sensible conservative want there to be. For example, Andrew McCarthy groans on about how the Constitution requires proof beyond a reasonable doubt in "death cases." I expect he would, however, be on of the first to come forward in defense of the ability (established in Kansas v. Hendricks) of authorities to prove by clear and convincing evidence the psychological propensity of someone to commit sex crimes and lock him up indefinitely under a civil commitment statute, though the right to liberty is protected by the Constitution in the same breath with the right to life. "How," you say, "can one compare the rights of a sex offender with those of an innocent?" But the law is blind to such distinctions, as it should be. The only recourse would be to alter the standard of proof somewhere in substantive law (although I've never heard of ratcheting it up in a civil case to proof beyond a reasonable doubt). And such an alteration would probably not even be supported by the people, since I doubt many people relish ex ante the thought of being preserved in a ghoulish state of half-death.

I'm not quite sure why it is that I seem to agree with nearly everything William F. Buckley says--even when I would expect him to disagree with me. In particular, I agree with his point that it is analytically unsound to equate affirmative refusal to preserve life with killing. Such a notion, with its sweeping implications for the moral necessity of a welfare state, is more commonly held by the most pinko socialist than the libertarian or institutional conservative. And yet it is precisely what all the rhetoric from the "right to life" culture postulates. This controversy has illustrated a point that went unnoticed in the past several years of Republican ascendancy, namely, that there is little or no inherent ideological union between limited-government conservatism and Christian social conservatism--it is largely a marriage of convenience. The most irksome thing to me about his whole affair is the toll that it may take on the integrity of Republican politics as the party struggles to keep fundamentalists in the fold. Whether we like it or not, Bill Rhenquist is going to be retiring this year, and it's going to be a long row to hoe getting someone to replace him to the right of David Souter unless Democratic obstructionism is overcome. This debacle could provide the perfect sort of ammunition for Democrats to lob, saying that all the Republicans' talk of "judicial activism" is merely a euphemism for judges who come to substantive conclusions that the religious right doesn't like. I also shudder to think that their loss in this case will ignite religious conservatives to try harder to appoint people for their moral rather than legal views; my blood curdles at the thought of a judge who would have granted a stay in this case because he thought it is what Jesus would have done. On the other hand, for the moment, I cannot fault, for example, W's willingness to sign the bill and utter a few platitudes. As a reassurance that our president is in his heart of hearts a true conservative, I was actually pleased to hear that Bush had been sensible enough to sign that law in Texas. It's dreadful to think of people being vegetables on the public nickel. But though I, as an irreligious structural conservative, might prefer if the Republican party were in a position to discard the useful idiots of the religious right like yesterday's linen, we cannot afford the luxury right now, with socialism attracting hordes of its own fanatics. Nevertheless we must remember that, when push comes to shove, there is nothing special impelling religious fundamentalists to prefer the rule of law and limited government if it conflicts with their religious notions.

So, then, in conclusion I would cordially disagree with Voracious Reader when she says that concerns of federalism should be subordinated to those of "life and death." Our system of government has been a bulwark to liberty against political storms and the tyrrany of men for hundreds of years; millions of people far better than the thing that lies expiring in a hospice in Pinellas County have died to build and preserve it. The rule of law is not better than the rule of man because it always produces results that we like: it is better because it is the law, impartial and unyielding. I, for one, will raise a glass when the political fuss dies down, and what was once Theresa Marie Schindler Schiavo is finally allowed to finish the death it began fifteen years ago.

2004-10-27T13:38:00.000-05:00

I think I now see why Odious and I appeared to be disagreeing (apart from the fact that Odious and Peculiar's blogging endeavours, to say nothing of my own, are animated greatly by the desire to demonstrate that we're such disagreeable men). I believe Odious has been contemplating, in large part, why the law is, while I have been trying to make assertions about the more mundane question of what the law is. Odious is absolutely right that adopting a foolish or unjust rule cannot in any way be justified by saying that it keeps order. Some liberal relativists try to make the claim that the policy underlying all laws is merely arbitrary demarcation of societal boundaries in order to promote the common good; and they cite as examples things like conventions about the direction of traffic lanes. But there is no inherent moral conflict entailed in whether we drive on the right- or left-hand side of the road. To say that no one has any significant interest in the direction of traffic flow independent of whether the direction is regular is not the same as saying that no one has an interest in a legal rule because the rule is an average benefit to society. The latter statement denies the role of the individual, and, in doing so, already postulates the non-relativist assertion that the benefit of the many outweighs the detriment of the few.
Thus, it is is not an argument that society should have a particular law, law as opposed to anything else, or anything at all to say "it keeps order." ("Say what you will about the tenets of national socialism, Dude--at least it's an ethos.") Yet ordering human interactions is what law does--by its nature. Law may even produce social chaos, but its workings would remain as steadfast as ever, awaiting the hand of political reform to gut its mechanisms and replace them with something more sensible. I will even point out from my own experience with judicial decision making that, often as not, when a judge is faced with a question on the frontiers of the law, he will decide what justice requires first, and make his reasons consistent with existing law afterwards. But this process is not, strictly speaking, a legal inquiry. To such an extent as a judicial decision is not based purely on statutory interpretation, legal analogy or some similar method, it is really an extension rather than an application of the law.
To continue the metaphor of biological evolution, the law, as I see it, fills the role of genetic material. Its function is simply to preserve a particular order in the social body. That order may prove to be a bad one, dooming its possessor to extinction, but it is not the basic function of the nucleic acids to change the organization, but to preserve it. I even allow that it may be beneficial, for purposes of adaptation, to have an inherently limited organization (thus, the success of the United States could be attributed to its being a sort of legal cockroach). I also believe quite firmly that it is socially beneficial to have redundant laws of which any can easily come into play should it prove evolutionarily necessary--i.e., federalism is a sort of sexual reproduction, which theory fits pervertedly with the term "laboatories of democracy." ("Igor, bring me the same-sex-marriage law.") Under my metaphor, I suppose it makes relatively little sense to call a law or genes good or bad except to the extent they promote the ultimate health of their possessor. But I am trained not to change the law but to work within it. All my cavilling then, simply arises from a sort of technician's aesthetic--from a pointless fascination with the workings of an object, without any regard to its value. I imagine Odious will argue that it is impossible really to divorce the form of a device from its function, but I can only reply that I largely look at portions of the law so minute and removed from its overall impact that I am forced to hypothesize much of their context. And, though taking a step back from the rules I might see the laws I was studying were mere tools of tyranny and oppression, I would probably still remark, in fatuous admiration, "But they tyrannize and oppress so well."

2004-10-26T09:38:00.000-05:00

I suppose I'm now almost as much to blame for this ongoing exchange. I believe Odious's and my impressions are coming closer together, in the sense that each of us is now allowing that the object resembles both a snake and a pillar. In furtherance of this progression, I note that I too have remarked the picture of law's impotence in Njal's Saga. When the law fails adequately to comprehend the conflicts of human interaction, it is powerless and nugatory, for the law, as such, is really a paper tiger. It can frighten and cajole, but its enforcement powers have always been limited to a great extent to the amount of awe it can inspire. And, to a surety, such awe is both amplified by people's belief that the law is just, and voided when the law demands more than awe can be expected to give. I don't, however, think that the law itself needs to be seen as striving toward great principles in order to be respected. Indeed, I would say that people's present deferential attitudes toward the legal system are as much influenced by the law's incomprehensibility to the layman, its impenetrable jargon and the ceremonial robes judges wear as by the notion that the law tries to give everyone a fair shake. What is most important is that the law have an air of inevitability and otherness. While a man might play poker knowing full well that his opponent will be dealt seven cards to his five--it is in human nature to make foolish gambles--he would never play if he knew the deck was stacked. In law, the relentlessness of its workings is more important than their effectiveness.
I feel that the public respect for the legal system has suffered somewhat in this country. As much regard as I have for Holmes and the truth of his opinions, the doctrine that the law doesn't exist somewhere out in the aether has removed at least one potential reason for its inevitability. I can only hope that the increasing popularity of elected judges and legislative tampering with the courts don't break the law's spell or loosen its hold on people's minds. But as long as courts retain their quirky customs and inscrutible ways, we're probably safe.
Nevertheless, as I've said, I do believe that the law benefits from being as unobtrusive as possible--from making as many concessions to human nature and frailty as possible, without seeming to compromise its ironclad principles. In the old Anglo-American legal system, this release-valve function was performed by the courts of equity, which were really an arm of the executive rather than the judiciary, and did not profess to have anything to do with the law. Now that we have conflated the two (law and equity), it is incumbent on judges to preform a second role as human beings, and try to the best of their ability to make sure individual justice is done without doing to much violence to the law. I don't have any Holmes to quote for my assertion that the law, even if it is not based in a priori reasoning, must still have at its core a hard-hearted formalism that abhors change and is blind to fairness. But there is an oft-quoted chestnut in the legal profession: "hard cases make bad law." That is to say, when the outcome of a case is based too much on a tough decision of what a fair result must be, the rule of the case ends up being muddled or even inconsistent. I have watched judges consider cases, knowing full well that they cannot in good conscience refuse to grant relief that they know to be required by justice and nature, but unable to fit such relief neatly into the strictures of legal doctrine. The opinions resulting from such cases are usually, in the proper sense, bad law. They are unprincipled and incoherent. They detract from the law's appearance of inevitability. I realize that these decisions are sometimes eventually codified in a more consistent manner, and become the groundwork of new, fairer law, through the evolutionary process Odious and I mutually admire as a matter of policy; but the law itself detests such mutations, and will usually only preserve them if they do not greatly threaten the health of the legal body as a whole.
I could go on somewhat at this rate, with more dry examples, but I'm afraid I've run out of metaphors.

2004-10-24T21:32:00.000-05:00

Odious has obliged me with a commentary on my last post (incorporating, I believe, some reactions to my older post on Blakely). I expect it was my gratuitous jab at philosophers that roused him. As usual, his remarks are both well-reasoned and supported by example--either of which is more than I can usually boast. Moreover, I must confess that the sentiments he voices are nearer to my heart than most of the cynical ones my training in law occasionally elicits from me. Nevertheless, he obliges me to explain myself, and so on his head be it if what arises takes the appearance of a dialogue.
I would certainly not dispute that government frequently purports to be founded on axioms or first principles. Recitations like the ones Odious quotes have been pretty standard fare as prologues to founding constitutions and the like for centuries; and, if I am to judge from those I've read, U.N. pronouncements of nearly any stripe must begin with a maddening string of "whereas," "recognizing that," "with a view to," and such like. But those lovely, inspiring, memorable enunciations almost never serve as positive sources of law. Neither the Declaration of Independence nor the Universal Declaration of Human Rights has ever had any legal force (the Declaration being a sort of diplomatic "dear George" letter and P.R. brochure, and the Universal Declaration a mere aspirational document, meant to enumerate the imagined groovyhoods of a brave new world and denounce, inter alia, Hitler's Germany). Indeed, the very reason that you will seldom find statements of this sort directly implemented as laws is that, as Odious points out, to the extent they have concrete meaning, they are generally internally inconsistent, and to the extent they don't, they are pointless as laws. Indeed, the Universal Declaration reads rather like a strange kind of political rally speech ("Who's for equal pay for equal work?"--"Huzzah!" "Who's for universal sufferage?"--"Huzzah!" "Who thinks the rights we've just enumerated should be exercised to the detriment of the rights we've just enumerated?"--"Hiss!"). These aspirational principles tend to become internally inconsistent directly in proportion to the degree of concrete meaning they are given. For example, although the simple points enunciated in the Declaration of Independence seem innocuous enough on paper, one has merely to try giving them substantive meaning to see how easily two "rights" that seemed like a good idea individually can trammel each other up big time. Perpend the famous case of Shelly v. Kraemer, in which the Court held that the right to own property and to contract did not extend to obliging the government to enforce a racially discriminatory covenant. I will grant that there are better-defined and simpler axioms than the vague aspirational terms discussed above, and that they might recommend themselves more, from an analytic standpoint, upon which to base a system of laws. But I have found that more abstract principles generally either state empty formulae (e.g. "efficiency") which can only be filled by unobtainable empirical data, or are so driven by the desire to prove a particular result, such as the justness of redistribution, that they consist in propositions and have corollaries that no one of sound mind could accept.
Odious suggests that there must be some a priori source of law, because nobody would obey a law that goes too much against the grain of justice, human nature, etc. I should first observe that my notion of law may differ somewhat from Odious's, in that I regard civil law as the most fundamental example of law, and criminal law as a more recent anomaly. The notion of governing laws, as opposed to men, regulating and keeping the peace is only something that crops up here and there in world history. The fact that our constitution found it necessary to prohibit ex post facto laws and bills of attainder attests to how recent, at least in western Europe, is the idea that crimes should be defined by universal law. Therefore, I tend not to regard law not as something to be obeyed, as the will of the sovereign, but as a dispute-resolution mechanism.
But I think the point at which Odious's arguments and mine pass each other in the night is the issue of to what first principles are applied. For when I say that I don't believe law can be derived from first principles, I mean that I don't think one can start with a sensible postulate, apply sound deductive reasoning and arrive at any particular section of the United States Code, or even of the Constitution, nor even an approximation thereof. Odious, if I understand, professes to take issue with the notion that there are no principles underlying laws, because people do not enact laws based solely on the tautology that whatever the majority dictates is right--they account for them with notions of justice and God's will. In saying this, Odious already assumes that the ultimate arbiter of laws is the masses--either because they cause the law to be enacted, or because they refuse to obey it if it is not good. I believe we have largely been describing two different parts of the elephant. I certainly do not dispute that people look at the outcomes of laws and evaluate them for fairness. I applaud the process whereby laws that cause more annoyance than they prevent are relegated to the democratic waste basket--often, as Odious observes, not by actual repeal, but by general lack of popular support, as in the case of criminal adultery laws. I too have faith in the universality of the human experience, and the ability of ordinary people to look at a conflict and decide, generally, the outcome that would be best, in most people's estimation. The only problem with basing laws on the justness of their effects is that the process breaks down when there is a sufficiently severe division between different people on what the appropriate result is in a particular situation--I'm sure I don't need here to give a list of politically divisive moral issues. I usually find such lurid issues rather pointless in comparison with the common ground people can usually find on the subject of justice, but it is from those intractable moral controversies that cynics assert the essential relativity of the principles underlying laws. Furthermore, even if everyone agrees on what the appropritae result shold be in certain circumstances, it is certainly not the case that one can derive from such certainty what ought to be the result in other circumstances. I submit that the principles and process by which we determine the justness of outcomes is not analytical, or a priori, but inductive and a posteriori. I believe that I can usually judge what constitutes an infringement of the God-given right to liberty; I know it when I see it. But I can hardly begin to formulate a meaningful rule that could serve as a touchstone for such infringements, even in limited circumstances. Therefore, my only point (with which I believe Odious argues only to a limited extent, if at all) is that substantive law is not and cannot be analytical in its foundations. Or, as Holmes famously wrote, "the life of the law has not been logic: it has been experience."
So don't go pissing on those Toastie-Oats just yet. The fact that the ideas of liberty and fairness are not scientific principles does not prevent them from guiding human political actions. In that sense, perhaps my irritation with political rhetoric is misplaced, for some reckless bandying about of analytically hollow but emotionally pregnant ideas is exactly why we don't have pointy-headed political scientists with internally consistent but empirically idiotic schemes of government running the world. But I disclaim the existence of any universal principle or series of universal principles that can everywhere be applied to protect one's breakfast from micturition. One must simply trust the forbearance of one's fellow man, and try to remind him that it could be his cereal next. (N.B.: I recognize that the golden rule might seem a superficially appealing foundation for a set of laws, but I've watched Rawls and other liberals try, and it's not pretty.)

The only unfortunate consequence of the analytically elusive nature of principles like justice is that, because the very purpose of written laws is to be rigorous and formal, and to enumerate rules that cannot be derived from the ideals inspiring them, they will at best only approximate what the people who enacted them would have called justice. Yet, as I argued in my post on Blakely, this is not a defect in the law, as such: the law derives its primal function from its ability to keep order. People may sometimes submit more willingly to its decisions when they imagine it to be "just" or otherwise deserving of reverence, but as long as it does not wreak such overt abuses that people will not follow it, the law has performed its function as a neutral arbiter, whether between individuals or individuals and government. The law is historically associated with the procedural rules and the magic formulae required to invoke the attention of courts and other arbiters than with substantive policy. A fine example is to be had in Njal's Saga, where good lawyering is invariably associated not with any substantive knowledge or persuasive power, but in familiarity with fine points of procedure that have little to do with logic and nothing to do with justice. Indeed, the policies it enforces may be ill-advised and its impact harsh, but the law itself does not cognize such matters. Thus, while government may continually concern itself with truth, justice and the American way, the law merely serves as a conduit through which government attempts to pass its policies to individual situations. Such has ever been the nature of law--it is a tool, and only as just or as unjust as the government or individual who wields it. In my view, to say that a law is good or bad qua law is to pass not on the truth or beneficence of the intentions underlying it, but on how clearly it is written, how ordered a solution it concocts for the task at hand. I would hold up certain sections of the Internal Revenue Code as being the most brilliant examples I have ever seen of coherent solutions to an inherently insoluble problem of drafting--even though, to the extent they have any moral content at all, it is the evil one of stripping away the labor of one for the benefit of many. The law is, in itself, a morally neutral thing, except to the extent that, like Hobbes, one ascribes inherent moral worth to obeying the established order.

2004-10-19T10:42:00.000-05:00

I realize that most of my handful of readership that were not already put off by the dreary, insipid subjects of most of my posts have abandoned me utterly during the last two months without posts. Unlike Peculiar, I have no particular excuse for my silence, except that my time is now occupied with actual (as opposed to speculative) involvement with the judiciary process. Nevertheless, I intend, once I can do the reading necessary to support my treatment with concrete points, to post another dressing-down of NPR for its fatuous decision that the summary rehearing order the Supreme Court handed down on the Texas redistricting case was somehow newsworthy. Honestly, I sometimes wonder if they have a legal analyst look at any of their Supreme Court stories before they shoot their magnetomotive mouth off.
A propos of foolish liberals, and a recent post by Odious, I must confess I have become rather cynical about the comparative inherent worth of various sources of law--whether power derives from a mandate from the masses or some farcical aquatic ceremony. I may myself value individual liberty over distributive justice, but it gives me no pleasure to discuss my reasons, since I am now convinced there is no conclusive argument that can be brought to bear on the subject. It is, I grant, possible to argue by setting up hypothetical parameters, just as it is theoretically possible to compare apples and oranges by assumed common criteria: but such is the work of philosophers, who have experience discussing matters that, in order to be discussed at all, must be hypothesized into irrelevance. What I cannot stand about politics, and particularly liberal politics, is the lack of any attempt to establish an analytical framework, so that all arguments reduce to the bald assertion that the one doing the asserting is right, along with all his cohorts, and everyone else is wrong. Even liberals in law school learn to define their terms and state their postulates--otherwise, there is no argument to be had. All that one can do in response to an unformulated statement is concede and throw back some vituperation. Therefore, when someone asks how the Unites States can say Saddam Hussein is a bad man, because we haven't spent nearly the amount of money the World Health Organization thinks we should to sponsor AIDS treatment in the third world, I will only shrug and answer: "Yes, I am a Republican, and therefore bent on humanity's destruction; but I think for now I could could content myself with yours."

Blakely v. Washington

2004-07-15T14:51:00.000-05:00

Justice Scalia never ceases to amaze. His scholarship is almost always beyond reproach, and he has a tidy, eloquent writing style that is as close as the current court comes to Holmes. Admittedly he seldom seems to get the really difficult and nebulous policy cases (usually because he is generally in a concurring or dissenting minority); but every now and then he comes up with an earth-shattering opinion like Blakely v. Washington, and contrives to make his argument seem quite trivial.

The opinion in Blakely is joined by a motley handful of justices. Thomas, Stevens, Ginsburg and Souter went with Scalia, while Rhenquist, O'Connor, Kennedy and Breyer dissented vigorously. The breakdown of the votes alone is an interesting and encouraging sign that, however halfwit Democrats in the Senate might think otherwise, not every opinion handed down in the federal judiciary is driven by partisan ideology. However, the case itself is more interesting than anything else I know to have been decided this term.

The case involves sentencing guidelines. Sentencing guidelines are statutory lists of things that a judge sentencing a convict is to consider in determining the harshness of the penalty he imposes. The largest example is the federal guidelines, which occupy volumes and constitute, in effect, an enormous list of factors that judges must consider, together with specific increases or diminutions in sentence to which each corresponds. These guidelines became all the rage two or three decades ago, because they were seen as means both of combatting potential racial bias of judges sentencing on a purely discretionary basis, and of prosecuting the "war on drugs," and other alarmist fads, to frighten criminal defendants into plea bargains with the prospect of potentially interminable sentences. The only trouble with this clever solution is that the facts upon which the judge bases his conviction are, by definition, not tried to a jury or beyond a reasonable doubt, because they are not elements of the crime.

Blakely was an estranged husband who kidnapped his wife with violence and force of arms. The state of Washington charged him with kidnapping, to which he pled guilty. The maximum sentence that can be imposed under Washington law for second-degree kidnapping is 4 years and 5 months. However, Washington law also provides that a judge can increase the maximum penalty if he finds notable aggravating factors. Blakely's judge found that he committed his crime with "deliberate cruelty" (whatever that means), and sentenced him to 7 and a half years. The simple point that Scalia makes in Blakely is that the Sixth Amendment requires that all elements of a crime for which a defendant is to be punished must be submitted to a jury. What that means in the context of sentencing guidelines is that a judge cannot impose a sentence above the one that he could "impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Slip Opinion at 7.) Thus, even though a legislature could allow a judge discretion to sentence a convict of a particular crime to 5 to 10 years at his whim, it cannot condition that discretion on an additional finding by the judge.

"How now," you (and Rhenquist and Co.) might ask, "is it really a benefit to defendants to make their sentences subject to arbitrary discretion of judges rather than allowing mandatory fact-findings to expose the standards to some scrutiny?" Well, perhaps not, depending on how the legislature of the jurisdiction accomodates the change. But the beautiful, radical, historically incisive point that Scalia makes is this:

Just as sufferage ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary. . . . The Sixth Amendment by its terms is not a limitation of judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury.

(Slip Opinion at 10, 12) Thus, the fact that giving greater discretion to the judge might in some cases be to the detriment of the defendant has nothing to do with the purpose of the right to jury trial. The issue is whether all the facts that are sufficient to impose a certain penalty have passed through the democratic filter of a unanimous jury. When the legislature imposes a certain maximum penalty of seven years for a crime, the defendant is on notice of that penalty, and that the democratic process may impose it on him if he commits it. However, when a defendant is on notice that his crime carries a maximum penalty of four years, he is legally entitled to serve no more than those years, no matter how dastardly his actions may be--if the state wants to punish him further, it must define the crime and prove it beyond a reasonable doubt before a jury. It is a matter of separation of powers: the legislature may define a crime and give a judge broad leeway in enforcing it (if the maximum penalty sits with its democratic conscience); but it cannot abdicate that democratic responsibility and, in effect, give the judge the task of defining and trying offenses.

So, perhaps, chalk one up against Adams's "government of laws" over the "government of men." After all, with mandatory increases above the minimum sentnces gone, legislatures will, in many cases, increase the maximum penalties for crimes and will have to allow judges to consider whatever in in their silly little heads to determine who gets the maximum and who the minimum. I, however, am inclined to regard the decision in Blakely as a victory for the proper division of legal and equitable powers in our government--a distinction too often glossed over in the popular understanding of the judiciary.

One of the first concepts that is assiduously beaten out of a law student's head--not necessarily by professors, but by relentless example in the law itself--is the foolish notion that the law is somehow synonymous with justice (in the sense of dicaeosyne). It is true that statutes and common law are generally animated by concerns over the fairness of their impact in actual cases, and so "justice" as an abstraction can sometimes be useful in learning the contours of the law. But the law is the law--by definition it establishes the criteria that will be employed in resolving disputes, to the exclusion of all others, however they might bear on the "fairness" or "justice" of the outcome. It is from this harsh aspect of the law, ironically, that we get the chestnut that "justice is blind," when it is not anything of the sort (except etymologically): it is the law that is blind, and willfully so.

Now, I'm not a huge believer in the imposition of ex post temporal justice. When I am informed that a person awaiting judgment is innocent, I tend to reply, along with the character Little Bill in Clint Eastwood's Unforgiven, "Innocent of what?". The world of considerations that one might counterpoise in the balance of "fairness," or whatever standard of moral estimation one might choose is infinite. Who but divine providence, the wheel of karma, or the judgment of God could gather them all? Attempts to use the law of man to impose divine justice and create a heaven on Earth (a scheme that, for most liberals seems chiefly to entail taking money from some people and giving it to others) strikes me as both futile and presumptuous.

The function of the law is quite different. The law simply draws disputation to a symbolic close. It draws rough and ready but consistent boundaries around controversies. A fine example is to be found in the laws of medieval Iceland. The laws were simply an elaborate procedural code to which disputants could resort to obtain a formal judgment of compensation. It was not a substitute for self-help--indeed, it had no governmental enforcement mechanism, and so a defendant who refused to pay could only be brought to heel by the plaintiff himself. Nevertheless, the law provided a sort of formalistic end to what could otherwise become an endless cycle of retribution, by giving someone wronged an excuse for not seeking retribution, and the wronger one for paying. It ensured, in effect, that while injuries would inevitably arise out of ill-will, they need not be perpetuated by pride. The law sought only to give a pretty predictable result that wouldn't be excessively resented by either party.

The sentencing function of a judge is as close as the law comes to an attempt to do individual justice. The judge is supposed to be a learned person unbiased as between the criminal defendant and the popular will, searching his heart for the best way to implement the law without ignoring the equities of the situation. The jury on the other hand is supposed to be the agent of the people--deciding how the law should be applied to keep the peace. To muddle these two roles would create the perverse result attempting to turn justice into the law (as when the legislature attempts to enumerate every possible factor that could relate to an individual defendant's culpability). We appoint or elect judges in part because we trust them with arbitrary decisions to do individual justice within the law. To take away that function is simply, as Scalia observes, to reduce them to mechanical triers of fact such as are found in civil-law systems, and to overlook the inevitable coarseness and fallibility of human laws.

2004-07-05T13:53:00.000-05:00

I feel compelled to remark on a quaint circumstance in which I found myself the other day. I was gathering sources for the article I have been editing for the past several months (more on the article itself hereafter), and went into the periodical stacks on the first floor of the Graduate Library here at Michigan, looking for a back issue of, curiously, Vanity Fair. The three floors which constitute the so-called first floor of the Grad stacks are like many repostories of very old books, only much more so. They have no windows, and their unnecessarily low ceilings are perpetually lit by bare yellow bulbs, whose illumination, whatever the time of day or night, is neither dim nor bright, and which cast their bilious academic light without glare or shadow. In this light the bare white walls take on a cheesy color. I can't quite tell when this particular section of the library was constructed, but the cast-iron and brass railings on the abrupt little staircases going from level to level, as well as the deeply worn cement steps suggest a date around the turn of the last century. The smell in there is of acid eating away at paper--paper likely being pressed into a longevity not intended by the publishers who used it: For the first floor is, as I've mentioned, where the library keeps periodicals.

To get to anything on the first floor, one has to find it in a long series of rooms that all look the same. The library directory will only provide a general direction (North, East or West) in which to look--the rest you must deduce from the curious methodology by which they have arranged the widely disparate call numbers of periodicals. I've never met another person down there, and have often found the color-coded lines they paint on the bare cement floors useful in finding my way back out.

On this occasion, I found my way deep into the stacks, and found the periodical my author had cited. It was bound uniformly, three issues to the volume, in blue institutional bindings with brief information embossed on the spine. When I opened my volume, however, there issued forth a pungent aroma of two-year-old perfume and cologne samples and the smell of glossy print that has lain untouched on a shelf. There unfolded in my hands, amidst the century-old classics reviews and mechanics' journals a sheaf of testaments to the ephemeral: gaudy full-page advertisments for toxic-looking liqueurs and absurd, trendy fashions already on the wane; lurid articles on outdated points of celebrity gossip and inconsequential political issues that have since burned off like morning fog; and pointless discussions of the fads then occupying that disgusting idle class of the arbitrarily decadent and wealthy, who constitute the scrofulous underbelly of our otherwise brilliantly efficient capitalism.

I cannot say why I felt the contradiction in the situation so keenly, but it seemed utterly wrong to me that these sweet-smelling, debauchery-covered pages should be filed in the bowels of a learned institution, where living souls seldom stir. For one thing, the magazine is damned hard in which to research, since its pagination is made extremely irregular by reams of advertisments. It seemed a shame both that the work of the myriad scholars whose articles line the musty shelves of the first-floor stacks should be adulterated with a cheesy fashion rag intended to console a fluff-headed bint awaiting a root canal, and that images of fleeting, youthful beauty and pleasure should be shut up in a dank catacomb where even students are driven only by necessity.

As I have come to see it, this contrast is the reason I find myself unable to take seriously those increasingly popular works on history that purport to expose the ordinary lives of the ancients--books on the naughtiness discovered at Pompeii, or on what Henry VIII did after hours, or some such. Mind you, I don't object to evidence of the details of ancient life as a foundation for understanding historical perspective, like the first chapter of Gibbon's Decline and Fall. I can even condone the study and cataloguing of trivia for its own sake. But I find it absurd to adjudge the character of civilizations or the value of their other contributions by their graffiti and pornography, as it would be to look for the character of ours in fashion magazines. Some things were just never meant to be preserved. The academic study of the inherently idiomatic and ephemeral aspects of society both trivializes works of science and art that were meant to be universal, and sterilizes the momentarily pleasurable. Feminist academic objection to the existence of pornography is an example--it says nothing about our culture's universal attitudes toward femeninity that a few (or many, or most) men in the country like to see a statuesque nude or two in their free time. The line between reasoned calculation or overt representation and ephemeral fancies may not always be sharp, but it should not be disregarded. While a man may have to answer to his maker for every aspect of his being, it would seem wise for the scholar and the lawmaker to leave anything not intended for publication or preservation alone.

I suppose all these conclusions lead naturally to a point I have wanted to make for a while, namely that the law cannot and should not be concerned with acieving individual justice on the ground in all circumstances--just as general principles cannot concern themselves with ordering every facet of individual existence, but to discuss it further would require more background than I have the strength to provide at the moment.

Elk Grove v. Newdow

2004-06-14T13:46:00.000-05:00

Another decision has been handed down today that demonstrates how spotty coverage by the media can so obfuscate the underlying principles of a case beyond any meaningful legal analysis. However, if Tennessee v. Lane was an example of a politically trivial case being blown out of proportion by scandal-mongering journalists, Elk Grove Unified School District v. Newdow is the inverse. If you will recall, Elk Grove is the case decided a few years ago involving the use of the phrase "under God" in the pledge of allegiance. The New York Times covered Elk Grove somewhat dejectedly; the only reason they mentioned it at all, I think, is that they had so zealously touted it as a landmark case when it was decided by the Ninth Circuit two years ago. As it came down, the article complains that the case was "dismissed on a technicality" (as though the Court had somehow chickened out in standing up for First Amendment principles), because a majority of the Court declined to reach the merits of the case, deciding instead that the plaintiff never had standing to bring suit.
Firstly, the fact that the case was decided the way it was reflects, again, very poorly on the news coverage of the case and subsequent grant of certiorari by the Supreme Court. The fact that there were actually two questions on which certiorari was granted--namely, the standing question and the First Amendment question--was never mentioned at all in any of the stories I read. The case was treated as though it were a simple First Amendment challenge brought by a parent on behalf of his child.
However, it turns out even the facts of the case were more complicated. The father who brought suit didn't even have legal custody of the child attending the defendant school (an oversight for which I'm sure whoever does plaintiff shopping in the ACLU is kicking herself this very minute). Because of this, There arose grave doubts as to whether he had standing to sue based on his relationship to his daughter.
Here is a brief overview of standing doctrine: In order to sue in federal court, you must have standing with respect to the claims you raise. Generally what this means is that you must have an actual injury (either an injury to person or property, or a deprivation of rights granted by the federal constitution or laws), and the law or action you are challenging is a cause of that injury. This requirement primarily has the effect of preempting busybody litigation by plaintiffs who are not directly affected by the action challenged, but merely want to do an end-run around the normal political process to have governmental action changed. This rule is founded both in the Article III requirement that the federal judicial power extend only to "cases and controversies," and in prudential concerns on the part of the court that cases should only be decided when the litigants have an interest in litigating them fully.
Applying this rule to Elk Grove, Mr. Newdow (the plaintiff) was not the one in whose presence the pledge of allegiance was being said, and so he seems to have no direct injury as a result of the policy. However, in some cases parents are allowed to assert the rights of their minor children, under a theory of third-party standing. This was one of the grounds that was asserted by Mr. Newdow, and it is the one discounted by the majority opinion. The Court reasoned that, since Mr. Newdow did not have any legal authority over his daughter under state law, he had no right to bring suit on her behalf in federal court.
However, Justice Rhenquist's concurrence disagreed with the holding of no standing, because Mr. Newdow's injury was not vicarious at all, but was merely a dirct injury to his right to control the upbringing of his child. (For a further discussion of this right, see Pierce v. Society of Sisters, Wisconsin v. Yoder.) It therefore argued that the merits of the First Amendment claim should have been reached, and that the pledge should not have been held violative.
Now, as anyone familiar with the current supreme court should know, one should be very suspicious when Stevens and company argue for a contraction of judicial authority, and Rhenquist and the conservatives argue against it. In fact, I would argue that, however lacking in titillating political rhetoric the decision was (except a little bit in Rhenquist's dicta about how the pledge should be upheld), it is an extremely political decision in its foundations. If you get down to the nitty-gritty of the majority's reasoning, you'll find that Stevens is actually carving out a pretty narrow exception to the usual standing doctrine, apparently tailor-made to fit this case (or so Rhenquist argues). Moreover, the reasons why the liberal justices might not want to decide the First Amendment issue just now are reasonably clear: the judiciary (federal and state) is catching a lot of flak right now for its presumptuous attacks on traditional institutions and values, under the aegis of "civil rights." One notable example is, of course, same-sex marriage, which has sparked so much fear of politically unresponsive judiciaries that even states with conservative supreme courts, like Michigan, have moved to preempt cases by amending their constitutions. Instead of being revered as infallible repositories of divinely-inspired justice, judiciaries are increasingly regarded in many contexts as just another sleazy political branch, with its own partisan axe to grind. This demeaning of judicial impartiality has much, I believe, to do with the mounting political controversies surrounding the appointment of members to the federal bench.
The irony of all this is that courts muchly brought themeselves to their current extremity by activism in the first place--through greed for political power. During the Warren years, the Court handed down a number of decisions that represented, if not the political will of the majority, principles that were so self-evident in their justness that a majority of the country soon agreed with them, despite the fact that impediments in the normal political process had stalled enacting them legislatively for many decades. In deciding these cases, the Court departed widely from its prior jurisprudence, and therefore cast a shadow on its infallibility, but also gained a greater amount or popular support than would normally accrue to a non-democratic branch of government. The decisions of the Supreme Court are now treated with a great deal more popular reverence than formerly--it is not only a problem of enforcement, but a problem of politics for Congress to enact a law that is subsequently struck down by the Court. Even as its infallibility has diminished, the court's power has increased.
However, this popular support comes inevitably with the price of popular responsiveness. If the Court decides too many cases in unpopular ways, its support crumbles. And, even if the justices themselves serve for life, the political parties with which the justices ally themselves end up suffering. It is not, therefore, surprising to me that, in an election year, the liberal members of the Court would decline to appear to weigh in on whether God (or Freedom, or Apple Pie) is a good thing or not.
In conclusion, then, I would never go so far as to argue that the Court makes no political decisions--it seems to do so increasingly. I would suggest, however, that the actual outcome of the case has very little to do with how political it may be. Cases with exciting facts like Lane may have very little political content on the part of the justices--they could merely be decided on very straightforward principles that are simply too tedious for the ordinary sod to heed, and, therefore, for the media to report. On the other hand, cases that have long, dull opinions like Elk Grove may conceal deeply political, even unprincipled applications of law, though all we will ever hear about them is that they were "dismissed on a technicality."

2004-05-30T14:01:00.000-05:00

I note with mild relish that I have begun to get personalized adverts on my page. So far they seem to be chiefly for sort of amateur legal research databases. I shall have to use more interesting keywords before I will be able to boast the museum specimens, opera publications, martial arts equipment, culinary and religious supplies, prom dresses and, curiously today, laser keratotomy that I have seen on Odious and Peculiar.

German Philosophy

2004-05-30T13:07:00.000-05:00

The following is an excerpt from a very old number of the Michigan Law Journal--out of an article entitled simply German Legal Philosophy. I thought it might tickle the fancy of those of my friends who, like me, suffered through too many seminars on Hegel, Heidegger, and similar goobers. Some of the vituperation is admittedly ascribable to the date of publication (1918), but I still find it amusing for its sheer mass of sarcasm.

So it is in the philosophy of the law. Professor Beinkopf finds something that strikes him as an idea in English or French or Italian writing. He at once invents a new theory, sounds a new watchword and savagely criticizes his rivals as without discernment. Thereupon Doctor Schlechtbier retorts with a rolling thunder of German amenities prounouncing Beinkopf a hollow sham. This rouses Professor Raucher who writes a grund-something-or-other to prove to a demonstration that both Beinkopf and Schlechtbier are mere dabblers in science, arrogant peacocks, and a disgrace to a learned country. The noise of the conflict arouses the Geheimrat Rauhbart, and by a mere multiplying of language, beginning with the heavy patter of metaphysics degenerating into a slow, steady, endless drizzle of words, he drowns the others and demonstrates that Beinkopf, Schlechtbier and Raucher are all of them totally wrong. But after the storm has passed it is found that they were all asserting the same thoughts in different words, and the only residual matter is their denounciations of one another. Professor Kocoureck apologizes for this "elemental savagery" of German "criticism" by the fact that "the German language is blunt and plain." It seems to be an extraordinary sort of language in which a man cannot express himself without being a blackguard. As a matter of fact, the German language is like their critical thought and writing. What is needed is justness of perception in dealing with involved facts. But in this sort of perception the German mind, as a great critic has remarked, is naturally wanting. Their mind is like their language, not clear, but vague and gauche; it has in it "something splay and something blunt-edged, unhandy, infelicitous--some positive want of straightforward, sure perception." The language permits and encourages the invention of awkward, vague compounds, with no restraint on their ugliness. This gives their language to ordinary eyes its tremendously learned appearance. The average man is bound to assume when he sees such agglutinative monstrosities as Militarstrafgerichtsverfahren, Gerichtsverfassungsgestez, Poliszussammengehorigkeit, Geschlechtsgenossenschaft, Buffelshalsbuckelsfettigheit, Entwickelungsgeschichte, or Volkerrechtswissenschaftslehre sprawling their uncouth lengths of tremendous consonantal thicket across the page, that thelanguage is learned and the thought profound. But that is all illusion. Aristophanes or Plautus did this kind of thing for fun, but the Germans are in deadly, sober earnest.

John M. Zane, German Legal Philosophy, 16 Mich L. Rev. 287, 366-67 (1918).

Tennessee v. Lane

2004-05-19T12:36:00.000-05:00

This Monday, the radio was all abuzz about three political issues, all involving the judiciary. There were, of course, the debacle over same-sex marriage in Massachusetts, and a lengthy discussion in honor of the fiftieth anniversary of Brown v. Board of Education of Topeka. I noted that the discussion of Brown dealt, predictably, very little with its actual legal innovations, and almost exclusively with the absurd question "If Brown outlawed segregated schools, why are our schools still segregated?" (Answer: because Brown did not outlaw segregated schools, it merely prohibited states from segregating them.)
But the third and really perplexing treatment was of the recently decided case Tennessee v. Lane. Lane is the sort of case that the news media love dearly for its lurid facts and potential to spark controversy among the ignorant. It involves a suit brought by a parapalegic southern gentleman who was charged with some minor criminal offenses and arraigned in a courthouse without wheelchair access. The reporters took every possible opportunity to repeat, with salacious alacrity, that "Mr. Lane had to crawl up the steps of the courthouse," and dwelt at great length on the myriad indignities imposed on the disabled by our cold and heartless society.
Mr. Lane's plight seemed very sympathetic, but the story left me a little puzzled. The ADA has for years required provision for wheelchair access to public facilities, and almost any litlgation surrounding the interpretation or validity of that act was decided years ago. However, the reporter finally saw fit to note that the decision was not on the actual merits of Mr. Lane's claim, but on the 11th Amendment issue.
For those without pocket Constitutions handy, the 11th Amendment disallows suing states in federal court. This may come as a surprise, since a great deal of federal "civil rights" litigation has a state or one of its organs as a defendant. Suffice it to say that there are many exceptions, notably that, under ex parte Young, you can sue federal officials to enjoin them from state action. The issue in Mr. Lane's case was not, therefore, whether the vile state of Tennessee could force him to crawl up the steps of the courthouse, since he could clearly ask for an injuction requiring the state to install a ramp, or probably even have his convicion overturned on a federal habeas petition if he were jailed for failing to appear. No, the issue was whether Mr. Lane could sue the state for money damages, for which the ADA also provides.
I understand that the general public might have trouble understanding all the ramifications of 11th Amendment jurisprudence, but had NPR's purpose been to inform rather than titillate, they could easily have reduced the issue and holding in Lane to four points:

1. The 11th Amendment prohibits suing states for money damages.

2. The 14th Amendment created an exception to the 11th Amendment when states violate 14th Amendment rights.

3. Therefore, Congress can abrogate state sovereign immunity as long as it is acting under its power to enforce the 14th Amendment.

4. The right of access to the courts is one such right, and so Congress can authorize damage suits against states who violate it.

Lane contains no startling revelations about the constitutionality of failing to have wheelchair ramps in public places. Indeed, the Court's decision would apply equally if Congress had provided for damage suits in case of any barring of access to the courts whatsoever: Mr. Lane's being handicapped is irrelevant to the majority opinion's reasoning. This is true despite the unhelpful and fatuous concurrences of Souter and Ginsburg, which, respectively, bring up eugenics and try to turn the Constitution into a manifesto of inclusiveness.
All this is as much as to say that, if the news is going to report on current Supreme Court decisions (which I generally regard as a bad idea, but that is the subject of another post), it ought at least to enlighten the ignorance of the masses rather than provoke it. For heaven's sake, it took me weeks to learn last summer that the much-deplored American Library Association decision was a spending-power case.

Prolegomena

2004-05-18T15:41:00.000-05:00

At the gentle prodding of certain friends, I have finally decided to indulge in myself that gauche modern notion that the detritus cluttering a cathode-addled brain looks better in electronic type. Or, perhaps I simply know that certain acquaintances of mine do in fact spend a deuced long time on the internet; and conceive that, by providing them with a paragraph or two of public blithering and indictments, I can enervate the general neglect which I have shown them during my past three years of academic seclusion. But make no mistake: I cannot pretend, however feebly, to emulate the genius of Odious and Peculiar (or, for the matter of that, of either individually). I have neither the wit, the knowledge of opera, nor the free access to intoxicating liquors for such an undertaking. Any chance I may have had to contribute to such a grand enterprise as Odious's and Peculiar's was dashed by my failure to think of a sufficiently catchy adjective. I must, therefore, try to make up in an aboundance of free time (of which I find myself briefly in possession since my recent graduation from Law School) for those aforementioned qualities that I lack. I will probably restrict most of my commentaries to my areas of expertise, which at present consist in a somewhat warped, federalist view of American constitutional law and tradition. I offer up the caveat that, however bombastic and (occasionally)politically controversial my comments may appear, I don't really present it to have it commented upon, unless you are one of the few about whose opinion I happen to care. I once cohabited with Dialogue for long enough that the two of us are barely on speaking terms. I have, therefore no intention of opening up my sololoquy to those who would spoil it with tedious contrary observations, more particularly if those observations happen to be true.
Therefore, I will now go to avail myself of my small stock of Paulaner HefeWeizen, to take inspiration for a post about Tennessee v. Lane.