Roman Declarations of War

Recently, I've been reading The History of Diplomatic Immunity, by Frey and Frey. Their section on Ancient Rome describes the final act of the declaration of war:

"The third stage, the indictio belli, took place on the thirty-third day when a messenger formally declared war and then hurled a magical spear, which had been dipped in blood or pointed with iron, into the land of the enemy to counteract his power. . . . As the Romans extended their power beyond the Latin communities, certain parts of the fetial ceremony became difficult to enact. . . enemy land into which the spear was to be thrown was often either remote or inaccessible. The Romans surmounted the latter difficutly by adopting a curious legal fiction. They had a prisoner of war purchase a piece of land in the Circus Flaminius district and then declared that land hostile territory. The fetials [diplomatic priests] could then cast the spear into it."

This curious example of territoriality is hardly unique in the area of diplomatic law. For instance, there is a longstanding legal fiction that embassies are part of the sovereign soil of their home countries. This fiction serves to limit the power of the surrounding country to enter or to enforce their local laws. Thus, the US embassy in Saudi Arabia can serve alcohol, allow women to work with men, etc. In both cases, the fiction of sovereignty is granted essentially for diplomatic convenience. In the case of the fetial ceremony, it saves the time and effort of travel. In the case of modern embassies, it provides diplomats with a "safe" environment from which they can conduct diplomacy without fear of intimidation or undue discomfort from the host state.

Both examples are pretty strange; the guest countries do not actually weild any power in that territory except by the grace of the host country. But the fetial ceremony is particularly odd because it conveys sovereign status onto soil that belongs only to a citizen of the foreign state. The citizen is made a symbolic representative of the state to which he belongs. His property is foreign soil.

My guess is that the fiction was only valid for this purpose. But what if it weren't? What if a foreign sovereign's property were actually the sovereign soil of his host country--would that make a difference in other areas of law? Let's examine it in the Roman context:

In-home protections against the government were pretty strong, so it wouldn't particularly matter whether a foreigner's home were on foreign soil--representatives of the state (soldiers, presumably) wouldn't be permitted to enter even if it were Rome's sovereign territory. However, in the event that someone broke this rule, it would presumably be an act of war. This would effectively be an extension of the idea that persecuting the citizens of a country can be a justification for going to war (kind of like the so-called "passive personality" principle of jurisdiction). In this case, it would protect the real property of the foreign citizen in addition to his bodily integrity.

Other possible implications: taxation might be affected if the area bore crops. Presumably only the sovereign country could tax the land (although the host country could, I guess, enact some sort of tax on crops traveling off the property). Another area might be emminent domain, which (if such a concept existed at the time) would not apply to territory owned by foreigners. And crimes committed within the house would be under the jurisdiction of the sovereign state. These rules are essentially the same as the current rules for treatment of embassy property.

You're an ancient Roman lawyer representing a foreign citizen. What other implications might this symbolic doctrine have?

George W. Bush Commemorative Coin

Today, the U.S. Mint announced the production of the new George W. Bush commemorative coin. The coin, celebrating the President's many achievements in office, will appear in decorative proof versions as well as in mass circulation.

The initial value of each coin is Pi dollars, although, like all US currency, this value will decrease substantially with time. In an unusual move for the US Mint, the coins will be legal tender only for citizens of the United States and Poland. Citizens of other countries will still be able to purchase US debt in larger denominations, like the new $1 Trillion bill, which was created especially for this purpose.

In an press release that accompanied the announcement, the Mint said it hoped the new "W" dollars would simplify and improve our monetary system. Said the statement, "We hope that these coins will do for our economy what the President has done in every area under his control."

Can I be President?

A recent article by Gabriel Chin (http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1157621#PaperDownload) suggests that John McCain cannot be president because he is not a "natural born citizen" under the United States Constitution. This article contradicts the opinion of Laurence Tribe and Theodore Olson, who have concluded that McCain can be President, either because his birthplace, the Canal Zone, was under exclusive U.S. jurisdiction, or because he obtained citizenship by statute in 1937.

Obviously this discussion is irrelevant. No one is going to kick McCain out of the race because he isn't a US citizen; the courts are not going to touch this with a ten-foot pole. But it does present an intriguing question: Can I become President?

I was born in Riyadh, Saudi Arabia, to two American citizens. Because my parents are American, I was born a US citizen. Because my father was not a Saudi citizen, I am not a Saudi citizen, nor am I a citizen of any other country.

I had always been told that I could not be President because I was not born within US territory. However, an alternative interpretation of "natural-born" would include those who were born as US citizens, excluding only those who become citizens through naturalization. The recent discussion appears to follow this model.

The text of the constitution isn't clear on this issue, although "natural-born citizen" does seem to read most logically as "becoming a citizen naturally," rather than by operation of naturalizing process. Nor is the purpose exactly clear. One might think that being born to American parents would be enough to ensure that one is not under the allegiance of a foreign power, or that one knows America quite well. On the other hand, the founding generation might well have wanted to keep the nation out of the traitorous fingertips of those of us who, despite being born as US citizens, were raised and brainwashed in Saudi madrassas.

(Note to FBI readers: Actually, I went to a British school known as "The Puffin School," and my most traiterous impulse is a tendency to spell the shade "grey" instead of "gray.")

So, what do we think? Absent practical considerations (electability; my tendency to make cutting jokes about Pennsylvanians), can I become President?

The Louisiana Rejoinder

Not entirely sure what to think of this yet, but Louisiana Governor Bobby Jindal has quickly figured out a second possible punishment for sex offenders -- forced castration.

The bill that he signed today provides that

on a first conviction of aggravated rape, forcible rape, second degree sexual battery, aggravated incest, molestation of a juvenile when the victim is under the age of 13, or an aggravated crime against nature, the court may sentence the offender to undergo chemical castration. On a second conviction of the above listed crimes, the court is required to sentence the offender to undergo chemical castration.

Two problems immediately pop up. First, the general "wow, this is overbroad" argument. There's no provision to deal with Romeo and Juliet situations, nor to deal with issues surrounding the mentally retarded, who may often fall into the same mental age range as the victims and who, in some cases, are actually the victims of the abuse but are considered the perpetrators under law because of their chronological age. Something more narrowly tailored might have been intelligent.

Second, it's unclear to what degree the chemical castration will actually prevent perpetrators from getting erections -- what good does it do to make them infertile if they can still get it up? Moreover, what happens if/when the chemical treatment wears off? (Interesting article written in 2001 on repeat sex offenders who had already had chemical castration.) Large doses are needed to tamp down male sexual desire, and even then they sometimes don't work. The chemicals do, however, give significant medical side effects on a regular basis.

And, of course, these arguments set aside two general criticisms of sex offender laws: (a) they actually do very little to deter what are often irrational crimes and (b) they reflect an inaccurate popular perception that sex crimes are usually performed by strangers.

I'm not in principle opposed to sex offender laws, and castration does seem a reasonable punishment, if reasonable is defined as "seems right to an average person." But this sort of law, while it may appeal to our sense of justice and vengeance, doesn't really have any rational, calculated thought behind it, and that worries me.

On a lighter note, another historical article reports on castration:

The controversial "Chemical Castration Bill" was accepted into law yesterday. This now provides for chemical castration as the standard punishment for each and every crime or infringement upon the law. It is being hailed as the best determent for crime ever. "I believe it to be an idea whose time has come," said Senator Dale Bumpers from Arkansas. "The American people are finally fighting back against criminals."

Polling on Kennedy

Given yesterday's decision in Kennedy, I'm interested in whether US popular opinion tracks with the states' alleged "evolving standards of decency." My guess is no.

I'd like to put a poll in the field to gauge whether people believe the death penalty should be available for a variety of crimes. This data doesn't appear to exist except for "murder," loosely defined.

Does anyone here know about how to hire pollsters? Equally important, does anyone know how much it costs, and how to get funding? I'm talking to a couple of conservative groups to try to get some money, but I don't have ballpark numbers. I'm thinking I'd need about 1000 nationwide responses, which I would guess means making about 5,000-10,000 calls.

Child Rape and Devolving Standards of Decency

For those of you who haven't seen it yet, the Kennedy decision came out today. It is available here:

http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-343.pdf

Justice Kennedy wrote the opinion. Justice Alito wrote a dissent, joined by Justices Roberts, Scalia, and Thomas.

I don't have time to comment on this extensively at the moment, and we've discussed many of these issues already on this blog. I will say that if we're going to have the death penalty in this country at all, it's puzzling to me that we don't apply it to child rape. I suppose some people feel that murder is substantially worse than child rape, so as to excuse killing the perpetrator of one but not the other. I just don't see it. It's difficult to compare such egregious acts, but to my mind at least SOME murders that are still constitutionally eligible for the death penalty are less morally bankrupt than child rape. The protection of children is, after all, a universally recognized moral precept. In fact, while many of us can probably imagine being driven to murder by extraordinary circumstances, I suspect the vast majority of people cannot imagine being driven to commit the type of atrocity seen in Kennedy.

Of course, it is always possible that the next step will be to prevent the execution of criminals convicted of only one homicide, without aggravating factors. This is already effectively the law in many jurisdictions. I would argue that this is essentially a matter of efficiency--we simply can't afford to match our murder rate with our execution rate. But someone, right now, is writing a brief arguing that it's because we've evolved past killing murderers. Will the Court take their rationale so far? I wouldn't have thought so before this morning.

The majority commits many of the errors Mr. Pollard and I discussed in our previous posts. They use the "evolving standards of decency" argument, based at least in part on a state law "consensus" that is largely of their own creation. And they completely ignore the fact that "evolving standards of decency" can create more, rather than less punishment, see, e.g., Sexual Harrassment. Thus, they continue the one-way ratchett of 8th Amendment Jurisprudence.

Justice Roberts voiced this concern at Oral Arguments, and the other Justices make a half-hearted attempt at arguing the point. But it's hard not to think that the Majority Justices are just substituting their own standards of decency for those of the rest of the citizenry. Do we really imagine that the majority of citizens in this country are against executing child rapists? If not, where are these "evolving standards" coming from? I submit that they are largely the product of the Court itself.

But perhaps I am not giving the Court enough credit. Maybe our laws have become so complicated that they have actually come to life, and are evolving on their own.

Apocalyptic campaigning

University of Arkasas Professor Accused of Racism, Bites Back

Apparently, Richard Peltz has been telling his classes that he would give black students an extra point on their final exams if they scored as high as white students. If he wants to rail against affirmative action, that's fine by me. If he wants to complain that some of his friends didn't get into good law schools because unqualified black students took their spots... fine. But when he starts saying things like an extra point for blacks if they can defeat the bell curve and score as high as their white counter-parts, I believe that departs from the realm of free speech and crosses into the territory of termination from his tenured professorship for cause.

Ironically enough, Peltz is the one suing! He's suing some former students. He's suing the W/ Harold Flowers Society, the state's black lawyers association. He's suing everyone he can think of! Certainly, there was some outrage over Peltz's comments. If, in fact, Professor Peltz did outline a scheme under which he would give "an extra point" to black students who did as well as white students on his exams, then he has not doubt clearly violated his responsibilities as a professor and placed the University of Arkansas at risk for lawsuits - by black or white students - alleging a violation of the Equal Protection Clause. Some noted First Amendment scholars have come to Peltz's defense, essentially arguing that whatever Peltz said constitutes free speech.

Stepping back, the posture of this whole case is terribly strange: If Peltz prevails in his case against the students, it will arguably result in a chilling effect on campus speech! Students may be forced to abstain from taking collective action to speak out against professors who have breached their duties to the University and possibly run afoul of their contractual obligations.

I am a staunch supporter of the First Amendment. But this, my friends, is an inappropriate vehicle in which to address First Amendment concerns. Professor Peltz isn't a martyr for the cause of free speech. His case isn't one that deserves anyone's time or energy. He's an idiot who, on the basis of his STUPID blacks get a bonus scheme (ostensibly because of their inherent mental inferiority), set himself up for reprisals and termination. And now he's the one suing, purely to cover his ass. So hats off to you, Professor Klan.. I mean... Peltz.


Read the FULL ARTICLE here.

Quo vadis, jurisprudentia?

The last couple of posts, and their associated comments, have tried to deal with the very basic issues of how a judge/justice justifies their decisions and decision-making process. And God knows this sort of transcendental nonsense is what we all cut our legal teeth on as first-years.

Before we go much further down that road and drive each other nuts, I'd like to note a couple of things. First, I'm bemused that in two days we've essentially rehashed out the same debate that has gone on since at least the pre-Socratics and has been summarized most deftly by Hans Albert as the Munchhausen Trilemma, named for a story in which the famous Baron pulled himself out of a swamp by his own hair:

The Trilemma asserts that no theory of justification can avoid falling back on one of three impossibly frustrating fallacies:

1. an infinite regression, which appears because of the necessity to go ever further back, but isn’t practically feasible and doesn’t, therefore, provide a certain foundation;
2. a logical circle in the deduction, which is caused by the fact that one, in the need to found, falls back on statements which had already appeared before as requiring a foundation, and which circle does not lead to any certain foundation either; and finally:
3. a break of searching at a certain point, which indeed appears principally feasible, but would mean a random suspension of the principle of sufficient reason.

--Albert, H., Traktat über kritische Vernunft, p. 15 (Tübingen: J.C.B. Mohr, 1991).) [Shamelessly cribbed from Wikipedia, fount of all knowledge.]

The first prong is, of course, Jeff's "pigeons all the way down" infinite regression. The second is the standard crit / Realist argument against any given theory from the Classical Legal Thought era -- or, for that matter, against most Originalist arguments today. The third prong is reminiscent of the Legal Process school -- and of Vern's (nee Roberts's) claim that the best we can do is employ a good set of rules-of-thumb (aka methods of interpretation aka heuristics) to try to reach a set of shared values.

This third solution to the justification problem is probably the best (and, for what it's worth, is Albert's preferred solution), but is certainly unsatisfying if we still look to the law to provide some level of consistency. The New Problem is that people apply different heuristics according to their personal beliefs about how well a given heuristic describes the world. Law as Politics, q.e.d.

So here's my second point, and a challenge. In the past century, we've floated through CLT, Realism, Legal Process, CLS, and L&E -- and currently we're in a sort of limbo, where the primary goal for any legal theorist is to come up with a new good set of rules-of-thumb (Originalism, for example). But nothing has really, truly, emerged as the dominant philosophy since the late 1970s saw the heyday of L&E and CLS, both of which are theories in the European critical tradition (though they often come out in opposite directions). What theory should come next in the dialectical progression? How the hell do we evaluate rules of thumb in any allegedly "neutral" fashion? Where is jurisprudence headed next?

My own vote is for some form of virtue ethics, that irritatingly hard-to-pin-down form of philosophy that's been around since before Aristotle. One central tenet of modern virtue ethics asserts that the Enlightenment obsession with the scientific method went horribly astray when it branched out into the ethical and judicial arenas. Instead of employing the critical method when analyzing a given heuristic, a modern advocate of virtue ethics might instead suggest something like this:

"...cultivat[e] a benign acceptance -- perhaps temporary and tentative, but real -- of any belief that can pass two tests: you have no particular, concrete grounds to doubt it (as distinct from the abstract principle to doubt what cannot be proved); and you have good reason to think all men who understand the problem share your belief." W. Booth, Modern Dogma and the Rhetoric of Assent, at 39-40 (1974).

The virtue ethics perspective is rightly criticized for relying too heavily on the assumption above that experiences can be held in common in sufficient numbers to create a formal ethical/legal structure. But every moral theory of justifying law relies on intuitive heuristics in one sense or another, because no body of thought can legitimately prove its own principles. Why don't we pick a version of ethical principles that at least admits its own fallibility at the outset?

Anyway, there are a few random thoughts on the subject. I'm done playing the CLS devil on Vern's posts, because while I find that CLS is the natural (for me, anyway) result of the Enlightenment's critical world-view, I'm much more interested in where we go next.

Postscript - my apologies to Vern for my botched Latin and to Isaac for any botched philosophy.

Pigeons All the Way Down, or Ejecting the Umpire

How unfortunate that my first post here should be a reaction. Co-contributors have requested that I exhibit decorum, and forgo the string of profanities that characterized (distinguished!) my earlier on-line missives. The limitation has drastically reduced my creative output. Sea legs are forthcoming. In any event, my colleague has spurred me to write by invoking my least favorite judicial fallacy—that of the umpire.

I will toe profanity's onomatopoetic edge by calling the myth of the Supreme Court umpire "transparently asinine."

My colleague is, of course, a wise man, who has said nothing incorrect. He merely seems not to share my terrific outrage every time a would-be Justice suggests to a Senate committee that we would save time and anguish by replacing him with a computer, so irrelevant is his own personal (or, perish the thought, political!) judgment to the hard mechanics of sussing out judicial truth.

Below, Vern posits that most law is simple. I agree with the fundamental premise. To paraphrase a professor of mine, perhaps indeterminacy is overrated. I once worked in a Senate office when a decision came down, the implications of which we rather disliked. But the decision was unanimous, and if you've ever read Chevron, it's not hard to see why. The agency was legally entitled to its interpretation. It was, as they say, within the strike zone. Delightful.

But when we ask Nominee Roberts about the role of judges, we could not possibly care less about this kind of case. We take those decisions for granted. No, we want to know about the dark art of Constitutional interpretation. To expand on the baseball metaphor, Constitutional law is baseball in which the umpire and the pitcher cannot see one another and may not even think they are playing the same game.

The now-standard response for judicial nominees—that the purpose of judges is to call balls and strikes—is, at best, coy and, at worst, intellectually dishonest. The former is a judge sidestepping the fact that we want to know how he or she will decide the hard cases. The latter is a judge somehow believing that there are none.

Consider the Court's recent Eighth Amendment work, especially Roper and, more recently, Baze: You could spend your life staring at the text of the Eighth Amendment and the common law it has sprouted, but you're still left with the words "cruel and unusual punishment." As some have suggested elsewhere on this page, if you can locate the shoulder- and belt-heights of that phrase, you're underthinking.

Do we examine the standards at the time of codification? (This goes to Vern's earlier thought-experiment and the limits of textualism.) Current understandings and standards? Personal standards? Local standards? National? Global? I have my answers, but I do not delude myself that they are rooted in anything other than my own politics.

I don't think the Chief Justice does either, except during confirmation hearings.

Is the vast majority of the law completely determinate? Absolutely. But when we ask your judicial philosophy, we're not curious to know what reasoning you'd apply when signing a unanimous decision, or whether you agree that speed limits present bright-line legal distinctions. We want to know how you'll interpret Constitution when you can see neither pitcher, nor ball, nor batter.

It's time to retire the "umpire" charade for high-level judges. Tell us about your first principles, your politics, your reactions to other hard cases. It's crucial to know what happens when the ball hits a pigeon because, in the world of Constitution, it's pigeons all the way down.

Any Justice who tries tells you that he or she could be replaced with a machine should well be replaced. And not with a machine.

Public Choice Theory and False Consciousness

In an article called “The World Trade Constitution,” 114 Harv. L. Rev. 511 (2000), law professors John McGinnis & Mark Movsesian assert that “Because free trade creates wealth for each nation, one would expect national majorities to favor free trade policies over policies that benefit special interests at the majority’s expense.” The article proceeds from this premise to explain why anti-free trade policies nevertheless often prevail in the U.S. and other democracies and how the World Trade Organization’s review and rejection of such policies reinforces democracy in WTO member nations.

Basically, the point here is that concentrated interest groups—the steel industry, for instance—have disproportionate power in democracies for “public choice” reasons, and use this power to enact policies that benefit them “at the majority’s expense.” The benefits of free trade (cheaper goods) benefit the undifferentiated mass of consumers, but these benefits are too small to make it worthwhile for individual consumers to take political action in support of free trade policies; the costs of free trade, however, are borne disproportionately by concentrated groups who have the means and motivation to take political action. So there’s a political market failure. And market failures should be remedied, right? So when the WTO dispute settlement body (a group of particularly unelected judges (horrors!)) declares a member’s democratically-enacted law in violation of its WTO obligations, and authorizes trade sanctions severe enough to coerce that nation to repeal or substantially alter the law, it’s actually reinforcing democracy, not undermining it. After all, free trade policies benefit national majorities, and WTO obligations are only violated when national legislation protects domestic industries and acts as a restriction on international trade. So striking down WTO-inconsistent legislation reinforces the systematically under-represented preferences of the pro-free trade majority. Note that this same stuff happens in U.S. constitutional theory—J.H. Ely and Carolene Products “discrete & insular minorities” against B. Ackerman and public-choice theory’s “diffuse and anonymous” victims of interest groups.

It’s not that the majority is actually pro-free trade. After all, these laws, enacted by democratic, majoritarian processes, aren't pro-free trade. Note the populist appeal of protectionist sentiments (“the Nafta took our jobs” and so forth) in the current presidential campaign and in Congressional opposition to the U.S.-Colombia trade agreement. Rather, the majority ought to be pro-free trade: “one would expect” it, because it’s in their economic self-interest.

Why would someone vote against their economic self-interest? Only because of market failures; because they don’t understand the import of all those little triangles and squares of “deadweight losses” and “transfers” on the graphs showing what happens to your utility when you don’t have free international trade. Democratic majorities are poorly informed; perhaps there are lobbyists afoot, subverting the people’s true will; whatever the reason, democratic majorities are clinging to anti-trade sentiment. And it reinforces democracy to override democratically-enacted legislation when such legislation is mistaken, because the people (at least a majority of the people) actually want good laws that make them better off, instead of stupid laws that benefit special interests.

On Baseball and Pigeons

A confession: I agree with Chief Justice Roberts. For the most part, the law is, in fact, about calling balls and strikes.

Absolutely no one agrees with me on this who isn't currently serving on the bench. Nevertheless, I believe it's true. There is almost always a right answer.

The vast majority of the law gets no attention because its results are utterly self-evident. No one speeds through red lights because he thinks the law is indeterminate. Most people just obey these laws without question. The people who disobey them almost always plead out. The few that challenge their verdicts are shut down pretty much instantly; their cases are processed without much ado, and their appeals are easily dismissed.

That's about 99.99% of the law.

After that, it gets a little trickier. There might be a good-faith argument for ambiguity in the law. Nevertheless, usually these ambiguities are fairly easy to resolve. You look at a dictionary, at the rest of the statute, at common sense, at the legislative history (maybe). There's a reason most trial court decisions are upheld, that most appeals court decisions are upheld, that most appeals court decisions are unanimous, and that most SCOTUS cases aren't decided 5-4. It isn't all laziness and congeniality--it's that, usually, there's a pretty obvious right answer.

And, yes, the higher you go up the chain, the more ambiguous the cases get--because otherwise they wouldn't have gotten up the chain. But still, most of the job of a judge is calling balls and strikes. And there are some tough calls, but that doesn't mean there isn't a strike zone.

But in 2001, in a game between the Diamondbacks and the Giants, Cy Young winner Randy Johnson threw a fastball against Calvin Murray. And three fourths of the way to home plate, it struck, and killed, a pigeon.

Of course, in baseball, you can just call for another pitch. But imagine if the umpire didn't have the option. How would he call it? He'd have to calculate the speed and spin of the ball, and look at the batter's stance, and so on. And maybe, if he were a really good umpire, he could take a pretty good guess. And then the game could go on, and no one would be able to really prove him wrong, so that would be ok. It wouldn't be a disaster, and the guess would probably be reasonably fair. But it would be a guess.

And sometimes (very, very rarely), Congress hits a pigeon.

Bagatelle -- Unusual Law School Traditions

Normally I'd just post this on Competing with the Dead, which is a strict web log rather than a discussion forum, but as it mentions our own law school's fine (and ridiculous) Gilbert & Sullivan tradition, I thought I'd post it here as well.

• The ABA Journal's call for comments on the subject "What Unusual Traditions Does Your Law School Celebrate?"

The best one by far is post 5:

• Each year the Cumberland School of Law at Samford University honors the memory of Rascal, the only recipient of the Doctor of Canine Jurisprudence degree at the annual Rascal Memorial Procession. According to Cumberland tradition, Rascal was a mongrel pup who faithfully attended classes at the law school’s former home in Lebanon, Tennessee, beginning in 1933, and in 1937 he was presented the rare degree of Doctor of Canine Jurisprudence. Rascal passed away in 1940, and was buried with much ceremony beneath the window where he attended classes. When Cumberland moved to Birmingham, Alabama in 1961, Rascal’s tombstone and a few spadefuls of dirt were brought to the Samford Campus, and again interred at Blackacre, on the west side of Robinson Hall. This year, on, Thursday, March 6, students, faculty, and friends of the law school--and their pets processed from the foot of Samford’s Centennial Walk to the Blackacre patio area. After a eulogy by Professor Howard Walthall, mourners and pets enjoyed a hotdog lunch served by Cumberland faculty, plus awards and party favors were given.

Why do we have “attempt”?

For those of you who haven't taken criminal law, a short primer on “attempt.” Attempted crimes are subject to an incredibly complicated mess of tests: we ask such questions as “how close is the actor to committing the crime” (the dangerous proximity test, which can itself be split into two sub-tests, "how far along" v. "how far yet to go"), “how much do specific acts bespeak a committed intent to commit the crime” (the equivocality test, adopted in very few jurisdictions), “do we allow the defendant to walk away” (the voluntary abandonment test), etc. In general, we want to encourage people not to follow through on a plan to commit a crime, but neither do we want to interfere too early and start criminalizing mere fantasies.

Summary of Attempt Law: We want to give people time to change their mind, and, if they don't, rope enough to hang themselves for the attempted crime.

But attempt doctrine simply doesn't make sense, for a couple of reasons. Let's take two examples. In the first, the police have shadowed a person who intends to shoot a victim (we think). If they want to get him for attempted murder, when should they stop and arrest him? In the second, the defendant is arrested after shooting at the victim – and missing. Do we charge him with attempted murder (meaning that we assume from the fact of the shooting that he intended to kill) or with something more along the lines of criminal threatening (meaning that we assume he shot to miss)?

The first case, where the police know about the suspected acts and simply follow the defendant until he's about to commit the crime, at which point they arrest him for attempt and start trying to figure out which test to apply, is bizarre. Why do we encourage the police to allow the suspects to continue further down the path of criminal conduct? Wouldn't it heighten the deterrent effect if we had them interfere at an earlier point? Even if they can't actually arrest the suspect for anything, their interference would say to the suspect “you are being watched and suspected of attempting X crime – if you do continue, you are at a very high risk of getting caught.” Many studies (and common sense) indicate that heightening police presence has the largest marginal deterrent effect; doing away with the attempt doctrine would encourage the police to make their presence known earlier on and, theoretically, deter those who are deterrable. To analogize: many people speed despite the deterrent effect of a theoretical speeding ticket, but few people actually are cocky enough to speed past a cop car with flashing lights.

The second case, where we convict the defendant who shoots and misses, illustrates how the attempt doctrine allows us to do something that we can't do anywhere else in the law – it allows us to assume that a 100% failure rate is a 100% success rate. We are completely unsure as to whether the shooter was attempting to kill or attempting to scare, but we do know that, if he was attempting to kill, he completely failed. On the other hand, if he was attempting to scare the victim, he (presumably) completely succeeded. The risk of real harm was zero, while the risk of IIED (or some other inchoate tort) was 100 percent. Because we have so clear a split in risk, it's not clear why we feel we have to call upon criminal law in this second scenario – why not just rely on tort law unless we can show an independent evidentiary basis for malicious intent?

In both of the “classic” scenarios, it doesn't look like the attempt doctrine makes a lot of sense.

Furthermore, we have completely separate doctrines in place that allow us to get the more important inchoate crimes. Burglary, for example, is defined at common law as the breaking and entering the dwelling of another with the intent to commit a felony inside; we have specifically defined the crime to let us get around the worst of the mens rea problems. Similarly, assault is now often defined as an unlawful attempt, coupled with a present ability, to commit a violent injury on another – another doctrine that, while incorporating the attempt concept, shifts the primary focus to the “threatening” nature. In tort law, we broaden the assault concept to cover still more situations. We deal with stalking by essentially banning any course of conduct that reasonable people would see as credibly threatening. None of these laws are perfect, of course, and all are subject to over- and under-inclusivity critiques, but they essentially perform the same functions as “attempt” laws without the ridiculous incoherency of the doctrine.

Why do we still have “attempt”? Well, institutional inertia is certainly to blame in large part. There are also problems of sentencing – in certain cases, a conviction for “attempt” is more substantial than a conviction for the exact same acts under another theory of punishment (while the Model Penal Code treats solitication, attempt, completed crimes, and aiding & abetting in basically the same way, many states grade the punishments differently).

But my suspicion is that the longevity of the attempt doctrine has more to do with diction than anything else. The ordinary observer gets confused by the various theories of the inchoate crimes, some of which have unclear names and all of which have tortured definitions. “Attempt,” on the other hand, is a word that people believe they understand (even though they generally don't).

Still, diction is a poor reason to stick with a sorry doctrine.

Why do we care what the states think?

In Coker, the court paid special attention to the fact that 49 states didn't have the death penalty for rape. At least some of the argument in Kennedy also focused on this question. Here's my question for the Court: Why should we care? Why are the laws of the states particularly helpful in deciding what is "cruel and unusual"?

Here's two problems with consulting the states:

First, the laws of the states might be shaped by the Court's decisions more than by evolving attitudes. States might create laws not because they think they're "decent," but because they want to shape a law that won't get struck down by the Court. So, for example, states might pass laws that make death unavailable for all rapists, because it thinks Coker applies when the victim is a child, and not just when the victim is an adult.

Second, states might make decisions about their criminal law based on considerations completely divorced from what is "cruel and unusual," or even what is "decent." An execution in California costs $109 million a head. If a state legislature banned the death penalty for financial reasons, it doesn't say a lot about whether it considers the penalty "cruel and unusual."

Decisions to ban a punishment based on either of these considerations might, of course, make the punishment objectively more "unusual." If fewer states are killing people for crime X, it's less usual, whatever the reason. But it isn't necessarily more cruel. And the Eighth Amendment demands both.

When the Court is deciding whether a punishment is "cruel," the criminal law of the states seem at best substantially removed from the question at hand.

It might be more sensible (if somewhat unorthodox) for the Court just to take a poll.

Update: Kennedy Case Transcript

Transcript Available Here

Child Rape & Evolving Standards of Decency

Louisiana wants to execute Patrick Kennedy for the violent rape of his 8-year-old daughter. Though I may be a card-carrying liberal who has long been critical of the death penalty, I cannot deny my lack of moral outrage or concern over a state’s desire to dispose of a 300lb man who brutally raped his own child. I cannot deny harboring the sentiment that, if there ever was such a time for the death penalty, then surely this is it. Certainly, I never could have sat on Kennedy’s jury, because I could never see it as my place to decide who lived and who died. But if someone else wants to kill Patrick Kennedy, I am admittedly equivocal. As terrible as this sounds, murder sometimes happens. It happens accidentally. It happens in self defense. It often happens where the killer never truly intended such a tragic outcome. Rape, however, does not merely happen. Rape is not an accident. Rape is not self defense. Rape is never the tragic, unforeseen result of some fight or argument gone bad. A grown man who rapes his own daughter does so with complete knowledge of what he is doing. Perhaps this is why the execution of Patrick Kennedy doesn’t bother me nearly as much as the execution of certain convicted murders does. My sentiments aside, his case will reach the Court for oral arguments on Wednesday.

Many opponents of the death penalty – and Kennedy’s lawyers - suggest that the “evolving standards of decency” argument clearly militates in their favor: only five states allow the death penalty for the crime of child rape. The limited number of states where child rapists can be executed is not dispositive, but owes, rather, to post-Coker confusion. In Coker, the court ruled that the death penalty was a disproportionately severe – and hence, unconstitutional – punishment for a convicted felon who raped an adult woman. Many states assumed that Coker foreclosed the prospect of passing legislation under which rapists would be death eligible. Coker, however, dealt with the rape of an adult woman. Indeed, Justice White’s decision repeatedly returns to the phrase “rape of an adult woman.” Coker did not pose the question of whether or not the death penalty was an appropriate punishment for rape of an 8-year old child. As such, several states, Louisiana included, have concluded that there is room, even in this post-Coker world, for a statute that allows for execution of child rapists. If I recall correctly, no states had a child-rapist death penalty statute in 1990. Now, five states have such a law. Missouri has filed an amicus brief asking the court not to foreclose a national debate on the issue of capital punishment for child rapists. This does not go so far as to suggest that our evolving standards of decency favor executing child rapists, but rather, that neither side can claim that argument as a trump.

Kennedy’s case cannot be decided based on the Coker precedent. The facts of the situation are easily distinguishable from the aforementioned. The case will, indeed, include a lengthy discussion of our evolving standards of decency ala Roper v. Simmons and Atkins v. Virginia. There will be some wrangling over whether or not America should consider the jurisprudence of other nations in our discussions of the constitutionality of our death penalty. Though doubtful, the court may consider how such laws make it more likely that child rapists will – sensing they have nothing left to lose – murder their victims. Possibly, the court will strike down the law as vague or overbroad, in that it allows the death penalty for anyone who rapes a child under 13....whereas anyone who murders a child is not instantly death eligible without proceeding through a lengthy balancing of aggravating factors and mitigating circumstances. Our murder/death penalty jurisprudence is well developed. Our child rape/death penalty jurisprudence is not. In other words, the law may lack appropriate safeguards to ensure that it is narrowly applied and only in appropriate circumstances. Because the Louisiana law does not include such checks against its application, the Court may – in a 5-4 decision – rule it unconstitutional.

Bears Behaving Badly

A Primer on How Bears Stalk Their Prey

In 2003, all was well in the forest. The markets were strong. There was a housing boom. There were lots and lots of picnic baskets. But some Bears wanted more. Not happy with their lot in the forest, these Bears set up a fund to take advantage of the booming US housing market. They called it the Bear Stearns High-Grade Structured Credit Strategies (Overseas) Ltd. (High Grade Overseas Fund). Now these were highly regarded Bears of great skill and industry, and they used their sterling reputation to convince investors that this new fund would be both incredibly safe and incredibly lucrative. Its targeted credit quality was 90% AAA and AA-. the safest tranches of Collateralized Debt Obligations (CDOs). Now, I don't know about you, but if a bear tells me that he's creating a new fund that invests in only the safest tranches of CDOs, then I'm probably on board. After all, this Bear must be pretty remarkable. Most Bears can't even read, let alone create new investment vehicles. Other people must have felt similarly. They sank more than $1 billion into the High Grade Overseas Fund.

Unfortunately, the Bears who ran this fund assembled and leveraged tranches of CDOs in such a fashion that unreasonably magnified their aggregate exposure to risky components of those tranches and structured investments in such a way that their aggregate embedded leverage – sometimes 30x - far exceeded what was disclosed to investors. These tranches, while individually favorably rated at AAA to AA-, were assembled in such a way that dramatically increased risk. Fast forward to 2006, and the Bears found themselves in trouble. Investor confidence was plumetting. Everyone knew the market was headed for a correction, possibly a recession. Meanwhile, these Bears had a dramatically overvalued fund, and could not risk a slew of investor redemptions, which would have exposed the funds true lack of liquidity. So what did they do? They created ANOTHER fund. Only this time, it was the High Grade Enhanced Overseas fund. This fund was safer. This fund could weather the market downturn. This fund was new and improved. This fund was... yes.. . enhanced! The ostensible goal: get investors to convert from the original Overseas Fund to the Enhanced Fund. And my. how the money did flow. Another $500 million. Clever Bears. They were still afloat.

These Bears were crafty. They had complete control over the reported Net Asset Value of the Overseas Funds, which were perceived by investors as never having a losing quarter from inception until the summer of 2007. What happened in the summer of 2007, you ask? Read on.

As there was no public market price for a portion of the Overseas Funds’ assets, the investment manager would generally value the Funds’ assets himself. This process is necessarily subjective, but should have involved numerous safeguards, including: a variety of rigorous computer models; communication with brokers and third parties who have had actual instances of buying or selling like securities; and periodical reevaluations of the firm’s model to reflect changing market conditions. But you know Bears. They sometimes behave badly and disregard fiduciary duties. Well, these were some bad Bears. They marked the price at whatever they saw fit. Their models never accounted for dramatic - and negative - changes in CDO values worldwide during late 2006 and early 2007. On paper, the Overseas Funds were booming. On paper, these Bears assured investors that the Overseas Funds only contained 6.1% of sub-prime mortgage investments. In reality, the Bears were losing money faster than they could count it. In reality, embedded sub-prime exposure was dramatically higher than the percentage reported.

Now some people might say, "Trusting a Bear? Are you crazy?" These Bears anticipated such a reaction. So they hired an accounting firm, Deloitte & Touche. And what did Deloitte say? They said - to paraphrase - "Calm down everyone. I know these Bears. They're good Bears. They run a clean operation. We've given them clean audit opinions. Nothing to fear here. Not from such well-respected Bears." And on the saga went. With Deloitte assuring investors of the veracity of its fiscal reporting methods, these Bears were able to stay in business. But I think the Bears were worried. They knew someone - perhaps that forest ranger who was always chasing Yogi - was on their trail. They panicked.

The Bears started using the Overseas Funds as dumping grounds for some of the most toxic investments on the Bear books. The Tahoma Squared CDO offering, for example. Very risky business. But the Asset Management Bears saw dollar signs. They had arranged and managed the CDO. They might as well collect one set of fees there... then sell that debt to.. you guessed it... the Enhanced Overseas Fund! From February 2007 through May 2007, the Bears caused the Overseas Funds to purchase some incredibly risky debt. The Bears are managing a risky offering and can't find a buyer.... they can just sell it to the Funds!

But Bear misconduct leaves big footprints. So what do Bears do when they think they're about to get in big, big trouble? They form a new spin-off that - on the surface - seems like it has nothing to do with any of the Bears. And they call that spin-off Everquest Financial, Ltd. And they sell Everquest all that crappy debt they had previously dumped into the Overseas Funds. And Everquest says, to paraphrase, "Thank you! You are such generous Bears! Yes, please! Sell us more of those super risky sub-prime tranches of CDOs. Oh, you generous Bears! Here, have a 16-million share stake in our company and $148 million." Wait a second! The manager of the Overseas Funds - Mr. Ralph Cioffi - was also the co-CEO of Everquest! Oh my! Was he having this conversation with himself, doing one character in his Bear voice and another character in his Everquest voice? And, if so, what does an Everquest even sound like? Apparently, according to the leading scholars on Everquests, an Everquest sounds... you guessed it... EXACTLY LIKE A BEAR! Oh bother.

I'm sure you can all guess what happened next. Everyone in the forest, including BusinessWeek, started asking some tough questions about this ursine scheme. What was Everquest? It was just a bunch of Bears engaged in a pathetic attempt to cover-up their misconduct. Weren't there clear conflicts of interest everywhere? This smelled like fraud. This looked like breach of fiduciary duty. And whatever happened to all the picnic baskets!??!? As the scandal blew up, the Bears kept talking. If you back any Bear into a corner, and he feels too weak to bite off your head or punch you in the face, he'll probably start talking real fast. He'll probably say things like.. "Who could have ever expected such a calamity! Oh, this is a disaster! Oh, we'll fire some Bears and make it all ok. We're good Bears, really. We'll get rid of the bad Bears who did this! Oh no, that previously reported 1% loss for April 2007.. well.. there have been some slight revisions... it's really a 6% loss... no.. check that... ummm... 10%... no... no.. wait... 19%. Nothing left to see here folks. We're finished. We're just going to get a court-ordered liquidation down in the Cayman Islands.... and since we have a bunch of Bears and Bear friends on the Bear Board.. we can basically do whatever we want...."

And then, the big bad Bears got sued by the Funds' newly appointed liquidators, who are represented by those Bear-hating lawyers at Reed Smith. But apparently, these aren't just your average Bears. They have some friends with deep pockets who appear willing to bail them out, indemnify them, and shoulder the cost of what will no doubt be some very ugly litigation. At last check, the public are up in arms about the prospect of having these dangerous Bears in the federal court in Manhattan. And I, for one, can't blame them. These are some bad news Bears, and if I were a judge, I sure as hell wouldn't want them in my courtroom.

- Jonathan Pollard

Jonathan Pollard also writes for the Hedge Fund Law Report. To subscribe to the HFLR, please email editor@hflawreport.com.

A Lawyer's Guide to the Sartorial Arts

Many of our readers are law students about to be thrust upon high society for the first time. The following essay gives some fairly straightforward advice on how to dress.

A Lawyer's Guide to the Sartorial Arts

Once upon a time, when the world was civilized, gentlemen rarely dressed themselves. Surrounded by valets and manservants, a gentleman needed only to extend his arms to be bedecked in sartorial splendor, like Snow White being dressed by bluebirds.

These days, trained bluebirds are hard to find, and a well-heeled valet almost impossible. The man of today must select his wardrobe himself. This is often a daunting task. Invitations are frequently murky, using strange code-words like "come as you are." What if you customarily read your mail in the nude? While wearing fisherman's waders? If you receive the invitation at a renaissance fair, are you expected to wear your wimple? These questions, and more, confront the gentleman new to society.

The first step, of course, is to consult a higher power. Turn around, observing the room closely. Do you see a woman of any description? Is it possible that she is your wife? If so, your problems are solved. Consign yourself into her hands with the faith of a newborn child.

If you appear to be unmarried, is it feasible to acquire a wife before the event? Sound marriages have been founded on less. Many a lifelong attachment has been formed when a good-natured young lady took into hand a gentleman wearing a black belt with brown trousers. An historical anecdote: the late President Herbert Hoover routinely wore his underwear on the outside of his clothing, until he was taken in hand just before an important fundraiser. Afterwards, he wore her underwear, but on the inside. This was a sufficient change to win him the presidency.

If you are unable to secure a spouse, you will have to go it alone. The first step is to examine the invitation. Often, key information will be printed on the bottom of the card. If your invitation is verbal, it is acceptable to ask the hostess. If you have not received an invitation, you are a soulless gate-crasher and will burn in Emily Post's private hell. Her pitchfork may be sterling, but the tines are sharp.

Once you know what your hosts expect, it's just a question of interpreting the sartorial code. This will present no problems for a professor of semiology. For others, the task may be more difficult. Let's take a look at some of the most common dress codes.

"Informal/Casual"

Where appropriate: Barbeques, Nascar Races, Bear Baiting

This generally means "wear anything." Shorts or jeans are probably fine. Some rules of decorum may still apply, depending on your hostess. If your hostess is ladylike, casual slacks and an oxford shirt should be acceptable. If your hostess is of the "trailer-trash" variety, try ripped shorts and a golden spoon dangling in your chest hairs. Stay away from cellophane or anything edible, unless you know this will be welcome. Remember: know your audience.

"Semi-formal"

The most dangerous dress suggestion. Its meaning is cloaked in a sort of eldritch indeterminacy. James Thurber, prone as always to genial confusion, once received an invitation to a semi-formal event at the Algonquin. He arrived wearing a dinner jacket, black tie, and no pants.

Essential advice for the young bachelor: emulate Thurber in your letters, and Benchley in your dress. For the most part, semi-formal means a jacket and slacks. A suit (without tie) is also acceptable.

"Business Casual"

This effectively means that you got a little undressed on the way back from the office. A suit (grey or pinstripe) is fine, and it is acceptable to remove your tie. It is not acceptable to untuck your shirt. Save it for the cab-ride home.

"Black tie"

Elegant and understated, this costume is the zenith of sartorial dignity. A slender black bowtie rests upon a well-starched ruffled shirt. A cummerbund (or, better, a vest) softens the sharp lines where the shirt meets the trousers. Cufflinks should be gold or mother-of -pearl.

The black tie ensemble is also known as a "dinner jacket," as it was traditionally worn ever night for dinner. This time will come again. When the 100,000 righteous sit down at the hand of the Father and tuck in to the celestial repast, this is what they will be wearing. Until then, black tie is worn at weddings, balls, and state dinners.

NB: In New York and Los Angeles, it is now considered "acceptable" to wear a dinner jacket with a black shirt and no tie. No good can come of this.

"Tuxedo"

A vulgar term for "black tie," taken from a country club in Tuxedo Park, NY. The semantic distinctions between "tuxedo" and "black tie" are fine, but important. Here's an easy rule of thumb:

If you are a gentleman attending an evening's soiree, you are wearing "black tie."

If you are a pimply high school junior squiring your cousin to your high school "promenade," you are wearing a "tuxedo."

"White Tie"

Also known as "ultra-formal" by hois pollois (a gentleman always declines his Greek).

This is the full-length avian getup. In the modern era, this "penguin suit" consists of a jacket with penguin-like "tails," a "bird's eye piquet" shirt and vest, and a white bow-tie. Be careful not to confuse your flightless birds. Even at the most elegant balls, dazed bachelors may occasionally be seen dressed as emu or ostriches. More rarely, a particularly confused young man will appear as "Big Bird," a flightless creature that inhabits the biome of Sesame Street.

For many white-tie functions, "National Dress" is also acceptable. Lord Byron, descending from an amorous tryst, once walked into a ball clad only in a bedsheet. Swiftly wrapping it around him, he claimed it was the national garb of his home country, Boga Boga. His costume was mentioned with admiration in society pages across Austria.

Weddings after 8 o'clock in the evening are white tie, both for the wedding party and for guests.

"Morning Coat"

Daytime formal wear. A typical "morning coat" consists of a grey (not gray) coat with matching grey and black striped pants, a pearl grey vest, and an ascot. In a pinch, substitute a grey and black four-in-hand tie. Shirt should be white, with wing collar.

A "morning coat" is the appropriate garb for weddings held before noon. Invitations to such events often spell this phrase "mourning coats," to emphasize the spiritual and romantic death of the affianced. Despite this tradition, it is seldom appropriate (however merciful it may be) to bury the groom.

How to Enjoy the Ballet: 10 tips for Lawyers

Let me be clear, right from the beginning: I’m not saying that lawyers can’t enjoy the ballet. I’m just saying that we enjoy it in a different way than normal people. I don't think we have to be ashamed of that. After all, we get paid an obscene amount of money not to think like ordinary human beings. We should embrace those strange, lawyerly emotions, and appreciate high culture from the distorted perspective we all share.

In that spirit, I present 10 tips for enjoying the ballet from a legal perspective. Many of these ideas occurred to me while watching The American Ballet Company’s performance of Sleeping Beauty at the Kennedy Center. However, they apply equally to any production—or, indeed, to many of our experiences with the fine arts.

• 1. Read the program.

This is the first thing I do at the ballet. I ignore the parts about the production; those are boring, unless of course you are stalking a member of the cast. Instead, I like to turn to the sponsor pages. This is the who’s who of Washington power. Want to know who the most powerful members of Congress are? They’re listed in the Honorary Members section. Want to know the most powerful lobbying companies? Try the high-donor’s section, where companies like The Altria Group (née Phillip Morris) demonstrate their commitment to the fine arts.

I also like the ads for outragously expensive watches—obscene watches, watches with nothing on the face but a big, honkin’ diamond. The new Rolex: Because you’re too damn rich to know what time it is.

• 2. Network.

Look around you. Ok, sure, none of the politicians in the program are here. Those people wouldn’t go to the ballet if they handed out free money during intermission. But there are a hell of a lot of lawyers and executives sitting around. Strike up friendly conversations. Pump hands. Be generally positive about the performance, without giving specific details. You’re here because your fiancée likes it, but it’s a delightful performance, really. Are you and your wife enjoying the show, Mr. Exxon-Mobile? My, that’s an impressive wristwatch.

• 3. Nitpick

Unimportant details: they’re how we make a living. There’s no reason to stop thinking about them just because you’re on your own time.

I like to watch for tiny errors. At the last performance I attended, one of the lead ballerino’s hair-bands came off. I watched it like a hawk for the next five minutes. One of the actors (who played a sort of grand vizier) noticed it too. As each new ballerina came onto the stage, he would warn them about it with a glance and a twitch of his fingers, well concealed in his larger movements. Finally, while several dancers spun in front of him, drawing the eyes of the audience, he picked it up and stuffed it into his sleeve.

• 4. Write liability clauses.

These people live entirely on their bodies. If they break a toe, they lose their livelihood. Can you imagine the liability? Try. Then try to construct a clause to avoid it. For extra points, negotiate the contract in your head. Be sure to get to yes.

• 5. Sue fictional characters.

You are in the jurisdiction of Magic Kingdom, which mirrors the procedural and substantive law of New York. An evil fairy godmother puts your kingdom to sleep for 100 years. As a result, your kingdom loses out on 100 years of GDP and technological advancement. Do you have a claim? If so, are punitive damages available?

• 6. Defend fictional characters.

Can the evil fairy godmother succeed on the defense that she is a foreign sovereign, entitled to immunity? She appears to be queen of the flies. Is this sufficient for a claim of immunity under the FSIA? Should she claim it, or try to avoid service of process? Discuss in low whispers, while ignoring the glares of fellow patrons.

• 7. Ask questions about details that sane people do not wonder about.

Remember, you never know what tiny detail might break the case. Exactly how many shoes do these people go through every year? Can they be resoled? Do they start to smell after a few performances? Do performers buy their own shoes, or are they provided by the employer? If so, are there appropriate economic incentives to promote an efficient use of resources? Internalize any relevant externalities.

• 8. Multitask.

Let’s face it, none of us has time to do just one thing at once. Bring work. Read by the house lights. During intermission, check your blackberry compulsively. This has the double advantage of maximizing your use of time and making you look important. You’ll notice, however, that the really important people do not have Blackberries out. This is because they are the puppet masters, and the Blackberries are the strings, to be pulled at their leisure. Guess where this metaphor leaves you.

If you run out of work, play Brickle.

• 9. Strategize.
  

You’re probably here because of a girl. If so, there are two possible approaches—fascination and boredom.

If you prefer to “appreciate culture,” be emotional but not excessively so. No crying, but you can beam genially and occasionally squeeze her hand as the music swells. The idea here is to appear multi-faceted and full of manly emotion.

If you prefer to be long-suffering, slouch slightly, but smile absently whenever she looks up. Compliment her dress and say how glad you are that she’s enjoying it so much. The idea here is to make her aware of your sacrifice, without appearing passive aggressive. Remember, you’re happy she’s happy, even if you’d rather be snorkeling naked in piranha-infested waters.

• 10. Lose your hat.

This gives you an excuse to say, “Damn, I left my hat at the ballet” for the next two weeks. It sounds like complaining, but really you’re saying “Look at me, I went to the ballet.” Further evidence that you aren’t the colorless barrister everyone thinks you are.

F*CK THIS SH*T

The constitutional law professor Michael Seidman likes to tell this story to his first year students:

"There was a man in DC a couple of decades ago who was up on trial for armed robbery. His lawyer put him on the stand, and the prosecutor put him through an excruciating cross-examination. He was really tearing this guy apart, making him contradict himself, just making him look as guilty as hell. Finally, the guy got sick of it.

"And so he stood up, said "Fuck this shit," and left the witness stand.

"Now," says Seidman, "that didn't work out so well for him. But, in a very important way, in that moment he was a free man."

Why am I repeating this story?

I respect the law more than most people. To be honest, I revere it. I believe that the rule of law is vastly important. And, if I sometimes fear that the concepts of "rights" and "duties" are merely noble lies, I believe those noble lies are at least the work of humanity's better angels.

But I also believe that, when it comes to the law, everyone has a limit. You might call it "natural law," or "higher principles." Or you might call it a sort of weighted utilitarianism. Whatever the name, it's the point at which you can no longer follow the law, or its constraints and procedures, and remain a human being.

Here's an example. Most people don't think we should torture people. But most people can only take that so far. What if it's a terrorist who knows the location of the bomb that's going to take out NYC? What if a mad dictator will torture 1000 people if we don't torture this one person? What if our family's lives are on the line?

Another example. You don't think people should steal. But should Jean ValJean really be punished for stealing a loaf of bread, when his sister's family was starving?

In the law, we often use this kind of extreme argument to discredit interpretive rules. And, when presented with such arguments, people inevitably try to distinguish the situation presented from their argument--they weasel out of it by saying "it's different," or "that would never happen."

But most of the time, the real answer is this: Neutral principles only take you so far. Eventually, your principles will run against something they can't deal with, and you just have to make an exception.

Or, more succinctly, "Fuck this shit."

I am not a legal realist by inclination. I don't think judges should use their political preferences when deciding cases, and (unlike the cls crowd) I don't think they have to, most of the time. Easy cases are the rule. And in the hard cases, we should follow the law to the best of our ability to discern it.

But, whether it's "the constitution is not a suicide pact" or Brown v. Board, even the justices of the Supreme Court have limits. We should realize that, and accept it, and maybe even embrace it. It isn't a failing, unless it's a universal human failing. And maybe we wouldn't want them to be any other way.

After all, the law exists, first and foremost, to serve humanity's needs. And, yes, it should be noble, and consistent, and true to its first principles. But it should also be human.

A Gedankenexperiment in Constitutional Interpretation

Let's suppose that, tomorrow, we all decided to amend the constitution. We completely rewrite it—not just adding a clause or two, but explicitly erasing the whole thing, and rewriting it from scratch. We go through the entire Article 5 process, and pass, not just an amendment, but an entirely a new constitution.

And, here's the catch—it's IDENTICAL to the one we had before.

What would this mean for constitutional interpretation?

I confine my remarks to the textualist school, because I think the results are the most interesting. However, note that the differences between the interpretive schools are much less meaningful when so little time has passed since the constitutional event.

Approach 1: The words of the constitution should be interpreted by their current meanings in 2008.

Approach 1 assumes that the people signing off on the constitution are interpreting it in light of the current (2008) meaning of the words. Thus, only those meanings are relevant. Under this approach, Justice Scalia would pick up a new dictionary (I like the AHD-4) and reconstruct the meanings of the various provisions from scratch.

Approach 2: The words of the constitution should be interpreted as before.

Textualism doesn't have to ignore context. If the 2008 Constitution is the same as the previous one, maybe the people of 2008 America intended to create the same constitution they currently have. They didn't want to change anything. Instead, they are ratifying the constitution as it currently exists—that is, with the Supreme Court's precedent to date.

Followers of this approach would have to explain why the American people signed off on the unchanged constitution. But there are a number of possible reasons for this. Maybe they just wanted to get rid of the "dead hand" problem by creating 2008 buy-in. Or maybe they just wanted to share an extraordinary moment of civic-mindedness—a formal affirmation of the centrality of the Constitution, and of our participation in it as American citizens (put this way, I wouldn't mind signing it myself).

The strangest thing about this approach is that it might have the effect of prohibiting the Court from overruling its pre-2008 precedent, because their prior interpretations have been ratified as more than mere interpretations- they are now "part of the Constitution" in a way that prevents a textualist from rethinking them. Suddenly Roe becomes part of the Textualist canon.

Approach 3: Only well-known Supreme Court precedent is good.

The idea here is this: we can only import precedent as part of the "original meaning" of the 2008 constitution when the American people know about it. If they don't know about it, they can't be signing off on it, and we have to look at the 2008 meanings of the words.

With this approach, the most well-known cases are probably still good—the blockbusters of Supreme Court jurisprudence. Polls might help determine which cases count. At the very least, I would suggest Marbury, Roe, and Brown—the cases most people know about. Also probably good are free speech cases prohibiting prayer in schools and other cases on currently hot-button issues. You might also toss in anything that appears routinely on television, like Miranda.

Approach 4: The constitution means what people thought it meant in 2008. Prior precedent is only good insofar as "the people" know about it, and non-existent precedent can be good if people think it exists.

In this approach, we largely follow the approach in 3 regarding superprecedents and the like. However, we modify that approach by relying only on popular ideas of what the constitution currently "says." That is, it doesn't matter what the current law is, it only matters what people think it is. That, and only that, is what the 2008 generation ratified.

Although this approach is, perhaps, more theoretically defensible than Approach 3, it is decidedly more difficult to implement or predict. Want to have an abortion? Well, we can't only look at Roe and that line of cases—instead, we look at the (probably simplified) popular idea of what those cases say. That might well be "you can always have an abortion." Likewise, people might think they have a right to produce obscene pornography, because it is extremely prevalent, is similar to protected material, and is rarely prosecuted anymore. These rights become "constitutional" rights, because they are what people think they are ratifying in 2008.

Similarly, there might be things that people think are part of the Constitution, as currently interpreted, but in fact are not (I am indebted to Conrad Deitrich for this idea). This would include not only construed or penumbra rights (association, privacy), but rights that are purely popular fictions ("I know my rights, you can't do this to me.") These might include, for example, a right to absolute control over a child's education, or a right to commit suicide.

Also included might be certain statutes so old that people think of them as constitutional, like various procedural provisions of the Judiciary Act, or even the current system of trial and appellate courts.

Approach 5: Total reset to 1789 (and times of relevant amendments).

This last approach would be appropriate if one viewed the passage of the 2008 Constitution as a repudiation of Supreme Court precedent. Under this approach, we would eliminate all precedent and rebuild from an originalist viewpoint. The more tenuous interpretations (Griswold, Roe, some of the New Deal cases) would likely be eliminated under this approach, whereas older precedent (and the more recent textualist cases, like Crawford) would remain more constant. Scalia and Black decisions would be enshrined, and Douglas would vanish from the face of the earth.

Zimbabwe, Moral Leadership, and Cities on a Hill

Here we sit, still awaiting word from Zimbabwe, and gently urging Mugabe and his Zanu-PF to respect the will of the people. There are whispers, no doubt, about whether or not America retains the moral authority to counsel other nations on respecting the will of their people. There is no doubt talk of Florida in 2000, or even the current democratic primary in which one candidate still hopes – ostensibly - to overturn the popular vote and seize her party’s nomination. There are grumblings about our misbegotten war in Iraq, and our lessened moral standing in the world as of late. The question, then, is what can America do – if anything – to help Zimbabwe? Clearly, I do not suggest sending in men with guns, or financing men with guns, or anything remotely relating to guns. I suggest food.

In brief, Zimbabwe’s future is not void of hope. Yes, Mugabe could attempt to retain power through violence and bloodshed. Yes, Mugabe himself could flee, but leave his cronies and militias to divvy up the country and vie for power, resulting in the onset of civil war. But perchance, as many hope, the elder statesman will take many of his men and all that he has looted these past three decades and move on to some rural retirement elsewhere, perhaps in South Africa. If Mugabe leaves Zimbabwe peacefully, the nation’s future becomes infinitely brighter. Zimbabwe is – in the physical sense – a rich, lush, fertile country. Vast swaths of land have produced only a fraction of the crops the can truly yield, all an unfortunate result of Mugabe’s disastrous land redistribution program. With respect to its citizens, Zimbabweans are a proud people. The educated classes have fled, with many of them re-rooting in western nations like England and Canada, but thousands would return from the diasporas en masse to see their country rebuilt in this post-Mugabe era. The prospects are not entirely dim. But the single biggest problem facing Zimbabwe this instant is food. Some may argue that a bloody civil war is the country’s most pressing concern. Well, much of the feuding will be over food. Sheer uncertainty over the nation’s greatly diminished food supplies will yield to widespread turmoil and more food riots than we have already seen. In Zimbabwe, food is critical; food is politics; food is bloody.

Our country – great as it is, and blessed as we are to be Americans - can move with incredible haste to launch an unnecessary war in Iraq that kills thousands, squanders billions, and disrupts an entire region of the globe, yet, when faced with the opportunity to exercise true moral leadership and lift up our brethren in the broken corners of the globe, we find ourselves suddenly impotent and possessed of no shortage of excuses for our inaction. Food. I am talking about food. Let us call a spade a spade. American food aid is – in large part – simply a boon to giant American agribusinesses. Conversely, the past decade has seen a dramatic shift in EU food aid policy. Instead of subsidizing their own agribusinesses and exporting surplus food – obtained at heavily subsidized costs and delivered in a system fraught with woeful inefficiencies – to starving nations, the EU now purchases more than 90% of its food aid supply from developing countries. How much of America’s food aid supply is purchased from developing regions of the world? Less than 2%.

The greatest beneficiaries of American food aid are giant American agribusinesses and companies that ship the food to its final destinations. Cui bono? Cargil or Conagra. Who benefits? Ask the American shipping companies that manage to haul in some 40% of all the money allotted for food aid in order to pay their inordinate shipping costs. Our system, as it stands, is expensive, inefficient and slow. What’s more, we are one of only two nations that actually sells – or dumps – a portion of its food aid, rather than simply donating it, to starving countries.

It is time for America to begin a long-delayed overhaul of its food aid policies. Specifically, we must move to a system of purchasing food supplies in or near those regions to which it will be distributed. We need to move to a system of local and triangular purchases within those same regions, and rely upon the expertise of well-established, reputable international agencies. In a terrible twist of irony, it was George W. Bush who, in 2005, sought to alter a decades old policy under which all American food aid had to be purchased and shipped from American soil. The Bush administration wanted to greatly relax these restrictions, to allow up to 25% of American food aid to be purchased in foreign countries, most specifically developing nations and those closest to the recipient of the aid. The proposal was, of course, voted down by congress.

So we want to rattle sabers, form new defense agencies replete with countless layers of bureaucracy, and rush headlong – without discussion, debate, or reflection – into a never-ending war in Iraq where the benefit of our presence there will not be realized for decades, if ever. Apparently, some suggest that when we feel a moral imperative to act in the name of justice, duty, honor and preserving the global peace, we are capable of such swift maneuvering. Well, if that is, indeed, the case, then I’ve got one for you. A new agency dedicated purely to American food aid policy. And from that agency, a policy grounded in a true desire to ameliorate world hunger and see the benefits – the very tangible benefits – of bringing food – and subsequently, some small measure of stability – to those nations that struggle with feeding their people. An agency committed to effective polices, under which emergency aid can be rendered immediately, not in five or six months time. An agency committed to purchasing locally near the end recipient of the aid. An agency that may some day go so far as to promote south-south trade relationships among developing countries, which would go a long way toward easing the food shortages that plague many developing – and particularly African – nations.

With proper aid, Zimbabwe can recover and rebuild. It will take years, but in only one or two growing seasons, Zimbabwe’s capacity to feed its people from its rich soil could be much improved. Right now, Zimbabwe needs food. Right now, America is in dire need of some action – some olive branch to the world – to demonstrate that we remain a force of moral authority, a nation of goodwill, a nation truly bent on lifting other peoples up from broken places. To borrow a phrase from President Bush’s pre-Iraq war lexicon, I believe we are faced – both in Zimbabwe and in all starving countries – with an urgent duty. It is time for us to better align our actions with our rhetoric about what our nation truly stands for.

- Jonathan Pollard

Postscript: Please spare me all the “love it or leave it” Trace Atkins nonsense. I obviously have lived a blessed life and love America dearly. In the words of James Baldwin, “I love America more than any other country in this world, and, exactly for this reason, I insist on the right to criticize her perpetually.”

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