Greyhame

On a recent plane trip, I read A Matter of Interpretation, Scalia’s short book on statutory and constitutional adjudication. He sets out his defense of textualism and originalism and, all in all, it’s a fine read. But it was mostly familiar, as he has made the same arguments in countless opinions.

No, I picked up the book because Ronald Dworkin had a short response essay printed in it. This essay, while not the focus of my post, is just masterful. Dworkin argues like a kung fu master. Scalia thrusts and where other men might parry, Dworkin does one of those ninja moves where he grabs Scalia’s sword and pulls it so that Scalia falls down. It’s a little hard to describe, but it’s great. So check that out.

The point of this post is to ask: what’s up with Professor Tribe? He has another response essay, which contains this paragraph:

It may be said that it is easier to criticize than to create; that one can’t beat even a bad theory with no theory; and that insamuch as I have offered (and rethought) plenty of specific interpretations over the years, it’s about time that I roll my legal universe into a ball and toss it into the ring as my candidate for what the final rules of the interpretive game must be.

For now, and perhaps permanently, I would respectfully decline that invitation. Indeed, I am doubtful that any defensible set of ultimate “rules” exists. Insights and perspectives, yes; rules, no.

Laurence Tribe, Comment in A Matter of Intepretation 65, 73 (Amy Gutmann, ed. 1997).

I have the feeling from the footnotes in his essay that Professor Tribe has defended this view at more length elsewhere. It will need it, because I cannot conceive of a sensible account of anything that does not accept some “insights and perspectives” as good and others bad. It is not easy to “decide how to decide,” but we still have to do it. (Justice Scalia, of course, seizes on this statement of Tribe’s as an example of the sort of free-form no-rules adjudication he spends his essay pillorying.)

In an effort to help incoming law students grasp the “big picture,” I have summarized all of your 1L classes in one sentence. See below.

Contracts: Forms may battle, but everyone gets the benefit of the bargain.

Torts: Take due care or pay money; build a dam and forget the previous part.

Civil Procedure: Read the rules, aggregate the classes.

Constitutional Law: Substantive due process is dead–long live substantive due process!

Criminal Law: Just like Law and Order, with more Latin.

Property: Fee simple? Anything but.

I’m sure you don’t need me to tell you this, but the Court’s decision in Hamdan is available here.

I have been thinking all morning, and I believe I have one original thought on the matter: it is fascinating to me to watch how Justice Jackson’s concurrence in Youngstown has become elevated to the status of pure canon. I bet no one even remembers what Justice Black’s opinion said. Yet his was for the Court, and Jackson did not get the vote of a single other Justice.

Yet there’s Justice Kennedy, citing it with aplomb. I don’t disagree. I have said before, and will defend, that Justice Jackson’s opinion in that case is the high water mark of separation of powers jurisprudence. I just think it’s fascinating to watch.

The June LSAT was this weekend, and you know what that means: a bright, ambitious, not-yet-soul-deadened group of law-students-to-be have taken their first step down a path that will, as Yoda once said, forever dominate their destiny. I’ve got a couple of friends who took it last weekend, and now they’re enjoying the agony of waiting for results.

Well, enjoy that, because waiting for law school grades is even better, let me tell you.

For another group of students, one year older, they took the June LSAT a year ago (or, if they were lazy and shiftless, they took it in October or even–gasp!–December) and are just getting ready to start their 1L year. I’ve got some of those people on the ol’ AIM buddies list, too.

For all of these people, they’ve pretty much decided to go to law school already. So there’s no point in writing a post directed at them along the lines of “law school: is it right for you?” or “law school: good reasons not to go.” For better or for worse, they’re coming.

What I can do, though, is get them ready for what the process is like. Today’s topic: Succeeding at Orientation.

Resist the temptation to take notes unless your memory is just absolutely terrible. Orientation is to get your jitters out. There’s nothing important in there that you won’t be told several more times before it becomes operative.

You will probably have a nice sit-down lunch with a rising 2L or something in small groups; maybe an address by the poor sap they tricked into being Student Bar Association President. Their perspectives are valuable, so go ahead and listen, but remember that there’s no screening process for dispensing wisdom to incoming 1Ls. (Apply this logic to my post, also.)

You might have the opportunity, during this sit-down thing, to ask for some upperclass wisdom. If you feel like it, take advantage. But there are things which should be obvious: It is too early to ask about journals. In my orientation, someone raised the issue of clerkships. It is impossible not to look ridiculous if you do this. If you really feel like you need to ask about exams, then okay, but all you’re going to be told is “make your own outline, do practice exams, and try to write clearly.”

I remember fondly during my own orientation, we were assigned to read a fictional case to discuss in our first session of legal writing. It was an old chestnut–the No Cars In The Park law. The “decision” interpreting the law was about a page and a half in the back of our legal writing “textbook,” which was really just a manual put together and distributed at our bookstore.

Many people, for a reason I will never understand, chose to not just read this decision, but highlight, underline, take notes in the margin, and–I swear I am not lying–make briefs. If you’re thinking about doing this (for a fictitious “case” in a pass/fail course), let me promise you that you shouldn’t. It’s almost as if these folks didn’t think they had enough to do. Trust me, there will be plenty to do soon!

So that’s orientation. You’ll meet your sectionmates, who you will really get to know very well. And it will all be fine. Most of the student groups will probably host events at local bars or something–go ahead and go if you feel like it. I missed all of them because I got to the city late, and it didn’t kill me.

As orientation comes to a close, here’s a metaphor I can’t remember the source of. Keep it in mind.

1L year is like a horserace; except, when they open the gates, all the horses run in different directions because there isn’t a track. Some run in circles, some run in very straight lines in the wrong direction, and some horses just stand around and eat the grass. Then, 15 weeks later, winners of the horserace are declared.

Have fun.

As we all know by now, the Court will review two cases about the use of race in high school admissions next term. OT2006 is going to be a barn-burner!

I think the Court will, yet again, split the difference, this time with Justice Kennedy as the pivot. Generally, he is a foe of affirmative action; in the 5-4 Grutter decision, he was in the 4. He even wrote an independent dissent. So what’s different now?

Alex Kozinski is different!

The cases concern a Louisville district and a Seattle district; the Seattle district is coming to the Court on certiorari from the 9th Circuit, where Judge Kozinski sits and where Justice Kennedy used to sit. Kozinski wrote a separate concurring opinion, arguing forcefully and well about why the Seattle plan did not violate equal protection; basically:

The Seattle plan suffers none of these defects. It certainly is not meant to oppress minorities, nor does it have that effect. No race is turned away from government service or services. The plan does not segregate the races; to the contrary, it seeks to promote integration. There is no attempt to give members of particular races political power based on skin color. There is no competition between the races, and no race is given a preference over another.

Parents Involved v. Seattle School District, 426 F.3d 1162, 1194 (9th Cir. 2005) (Kozinski, J., concurring in the result).

That is: take a white student, selected at random. There is no way to know ex ante whether this system will help or hurt him in gaining admission to the high school he wants. It may help or hurt or, most likely of all, it may have no effect at all. As such, Kozinski makes a compelling case that trying to fit this into the “round hole” of previous cases by applying ordinary strict scrutiny is square-peg territory.

I was having a conversation yesterday with a friend about something along parallel lines; occasionally, the analytical framework we have bolted on to the structure of the Constitution fails to analyze a new, interesting case. In those situations, we ought to be intellectually honest about that fact, and I think Judge Kozinski has been. He and Kennedy are of similar mind on many issues, they are colleagues who like each other, by all accounts, a great deal, and I am guessing his opinion in the 9th Circuit case will convince Kennedy to uphold the Seattle plan even as he votes against the Kentucky one, which is a good deal worse.

The California General Assembly has just passed A.B. 2948, which would award California’s electoral votes to the national popular vote winner. I have several thoughts on this.

1. It’s an interstate compact, so Congress has to approve it, correct? I wonder if they will. The form of an interstate compact is pretty important, so that it’s binding on each of the states that enacts it–that way, no one has a “first mover’s disadvantage.” Ingenious!

2. Whatever you think of the electoral college, this is a fascinating way to circumvent it. Once this passes the required number of states for it to go into effect, the popular vote winner will always win the Presidential election–regardless of whether or not most states ratify this compact. It enacts a fundamental change in the way we elect Presidents, and requires substantially less support to do so than a Constitutional amendment (which is probably why supporters didn’t go that route). As a result, the electoral college truly becomes a goofy formality.

3. It still has to pass the state senate and be signed into law, but that seems very possible. It’s already gotten support in many other states, like Illinois, Colorado, Missouri, New York, etc., although this is the largest legislative victory so far.

If you like, you should check out the movement’s website for more info on their successes thus far. It seems like they really do have the momentum required to pass this in enough states to change the 2008 battlefield.

Brian Leiter has posted a draft of his new paper, on religious toleration. By coincidence, I just re-read portions of Locke’s “Letter Concerning Toleration” today, so I have some thoughts to offer. Rather than offer them in a private e-mail, I’m just submitting a trackback to his post; he never accepts my trackbacks, of course, so maybe he’ll never read this. But you will!

For those of you unfamiliar with Locke’s argument for religious toleration, it goes like this. Locke assumes Christianity is true. Thus, he is not going to make any arguments about how, well, who’s to say, maybe Jews are right, etc. (He does have an interesting section on distrusting Catholics and atheists, but let’s leave that out.) He starts from the proposition that there is one true religion and Protestant Christianity is it.

However, the state has only a monopoly of force at its disposal. All it can do is arrest you, punish you, kill you, try you in a court, etc. And none of these things will do any good towards promoting religious belief, because you must accept that belief freely or it is no good. So there’s really no point to forcing it on people, so don’t bother. It’s a very elegant argument that I happen to think is right.

Leiter sort of blows past it in one paragraph, just saying that Locke could never have imagined how effective the means of the state would eventually become at coercing people to believe things. I think this is not a good reading of Locke. I don’t read Locke to be saying that coercion couldn’t produce belief or something that looked like belief; rather, I think the best read is that, if that’s what you’ve got to do to induce belief, the resulting belief is pretty worthless. (Sure, you can lead a horse to water, and using modern technology, force the water down its throat, but if you think this is the best way to fix thirst, you’ve gotta be missing something.)

Bob Bennett, on Hardball just now, was very dismissive of the Pelosi/Hastert school of Constitutional interpretation. Along with Volokh’s skepticism, I’m starting to feel like they won’t win this thing!

I just can’t understand the political optics of it. Dennis Hastert is a smart fellow; you don’t get to be Speaker of the House by being dumb. This seems like a huge opportunity to tar Democrats with the scandal brush; but now it’s just all about the bipartisan condemnation of the search. Why? Is this some kind of ploy? What is happening here? Anyone?

As reported by Brian Leiter (and commenter Andrea in the post below), our rockin’ voting rights scholar Richard Pildes will remain at NYU, having turned down HLS.

I can’t write long, since today’s the last day of the writing competition here and I’m busting my rear on that, but I’m happy, obviously. Pildes, along with fellow NYU prof Issacharoff and SLS prof Pamela Karlan, wrote the best Law and Democracy casebook on the market. Plus, we’re all so darned handsome here in Greenwich Village, how can anyone leave?

Being a research assistant is a great job.

I’ve only been one for about a day and a half. And I should be working instead of writing this. But I’ll take some time to make a couple of arguments on its behalf.

First, there’s not much commute involved. I live three blocks from the law school library, and all of my work happens in my mind and on a keyboard. As a result, I don’t have to get up very early; or if I do get up early, my day seems really long. The only time the distance between my apartment and the various libraries in the Village makes itself felt is when I carry books to and/or fro.
Second, I get to think about pretty cool stuff. Professors can write about what they want, so they write about things they think are interesting. And if it’s interesting to a professor, for whom the years in the academy have had a pronounced “jading” effect, it is likely going to be very very interesting to a bright-eyed law student.

Third, flexible hours. There is no meaningful difference between an hour’s work that comes at 11am and one that comes at 11pm so long as your mind is rested and sharp. If you work best in the mornings, work then. If not, don’t. Nice.

Fourth, free learning. You can’t help but get a pretty “deep” education about some of the issues you’re researching or writing about, because you’re working in bite-size chunks, usually. So you can be thorough.

Fifth, comfortable shoes. Speaks for itself.