Sunday, July 23, 2006

Better Late . . .

A couple months late, I have an entry for the funny billboard contest. Welcome to South Africa!

Saturday, May 27, 2006

Why so few minority Supreme Court clerks?

The Empirical Legal Studies blog links to a Legal Times story with a discussion.

Wittgenstein in love: Tegan and Sara

I'm sometimes amazed at how varied the sound of the Indigo Girls is--they really succeed, and sometimes succeed astoundingly, in a lot of genres. But if you want to broaden that sound, keeping the similar pervasive minor-third female harmonies but exploring a bit more musical territory, you may want to check out Tegan and Sara. Not only are their songs tremendously catchy, but they frequently link up lyrics and music in elegant ways. Below the fold are the words to one of my favorite of their songs, "Where does the good go?" It questions, in an almost Wittgensteinian manner, what remains when you and I are subtracted from us, and how vulnerable that remainder is. (Admittedly, to really see the Wittgenstein, you have to have read his Philosophical Explanations description of an arm movement as human action, and also be thinking a lot about an old ex-girlfriend, and listen to the song about ten times in a row...but it's there. Trust me.)

where do you go
with your broken heart in tow
what do you do
with the left over you

and how do you know
when to let go
where does the good go
where does the good go?

look me in the eye
and tell me you don't find me attractive
look me in the heart
and tell me you won't go
look me in the eye
and promise no love is like our love
look me in the heart
and unbreak broken it won't happen

it's love that leaves and breaks the seal
of always thinking you would be real happy
and healthy, strong and whole
where does the good go
where does the good go?

where do you go
when you're in love
and the world knows

how do you live
so happily
while i am sad
and broken down

what do you say
it's up for grabs
now that you're on your way down
where does the good go
where does the good go?

Which are better, California or French cabernets?

A blind taste test pisses off many.

"The Orphan Feast": Ascension

Great post over at Commonweal about the Feast of the Ascension.

Akhil Amar writes on the Jefferson papers raid

In Slate, Amar finds it unlikely JJ will get much relief from the constitution. On this theory, U.S. v. Johnson, discussed previously, must truly be an outlier.

Friday, May 26, 2006

"I crave the law...I stay here upon my bond": von Jhering and Rober Cover

Law, which in the field of self-interest is prose, becomes in the field of idealism poetry; for the struggle for law, the battle for one's legal rights, is the poetry of character.
Von Jhering, The Struggle for Law, III
Von Jhering in The Struggle for Law praises "the devotedness and energy in the assertion of legal right," the bubbling vitality of each individual that supports the state from within, like the Turgor pressure of each cell that gives a plant stem its stiffness, or the colliding molecules that force a gas outwards by pressure, keeping the gas from collapse.

But why do people fight for their rights?--why do they fight not only when they are likely to win, but even when what has been lost is likely small compared to the cost of the fight? Why struggle even when struggling is against your immediate self-interest?
What is it, then, that works this wonder? Not knowledge, not education, but simply the feeling of pain. Pain is the cry of distress, the call for help of imperilled nature. This is true, as I have already remarked, both of the moral and the physical organism; and what the pathology of the human organism is to the physician, the pathology of the feeling of legal right is to the jurist and the philosopher in the sphere of law; or, rather, it is what it should be to them, for it would be wrong to say that it is such to them already. In it, in truth, lies the whole secret of the law. The pain which a person experiences when his legal rights are violated, is the spontaneous, instinctive admission, wrung from him by force, of what the law is to him as an individual, in the first place, and then of what it is to human society. In this one moment, and in the form of an emotion, of direct feeling, we see more of the real meaning and nature of the law than during long years of undisturbed enjoyment. The man who has not experienced this pain himself, or observed it in others, knows nothing of what the law is, even if he had committed the whole corpus juris to memory.
This assertion of legal right as a call of the pain of one's imperilled nature--the victim's cry for vindication--is the converse of Robert Cover's Violence and the Word, 95 Yale L.J. 1601, the law's cry for retribution:
Legal interpretation takes place in a field of pain and death. This is true in several senses. Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life. Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur. When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence. Neither legal interpretation nor the violence it occasions may be properly understood apart from one another. This much is obvious, though the growing literature that argues for thecentrality of interpretive practices in law blithely ignores it.

Taken by itself, the word "interpretation" may be misleading. "Interpretation" suggests a social construction of an interpersonal reality through language. But pain and death have quite other implications. Indeed, pain and death destroy the world that "interpretation" calls up. That one's ability to construct interpersonal realities is destroyed by death is obvious, but in this case, what is true of death is true of pain also, for pain destroys, among other things, language itself. Elaine Scarry's brilliant analysis of pain makes this point:
For the person, in pain, so incontestably and unnegotiably present is it that "having pain" may come to be thought of as the most vibrant example of what it is to "have certainty," while for the other person it is so elusive that hearing about pain may exist as the primary model of what it is "to have doubt." Thus pain comes unshareably into our midst as at once that which cannot be denied and that which cannot be confirmed. Whatever pain achieves, it achieves in part through its unshareability, and it ensures this unshareability in part through its resistance to language . . . Prolonged pain does not simply resist language but actively destroys it, bringing about an immediate reversion to a state anterior to language, to the sounds and cries a human being makes before language is learned.
The wounded feeling of legal right indeed craves the law, as Shylock says; but the law is not merely analogy, it is a physical, bloody pound of flesh, and is thus a wound as well. If indeed God decrees that every crime must be repaid by blood, it can only be said that the judgments of the Lord are true and righteous altogether. But for those who must actually translate the victim's cry into the criminal's cry, truth and righteousness will always be viewed through a mirror, darkly, until the end of days.

Economy in year you graduate strongly effects your income for life

From Marginal Revolution (surely the fastest moving blog on the net), I note Austan Goolsbee's new NYTimes article: the economic conditions at the time of your graduation from college have a huge impact on your life earning potential, and those who graduate in the middle of a recession never catch up to those who finish school five years later but during a healthy economy.

This probably doesn't apply to my college graduation---or even my graduate school graduation---since I've jumped ship to try out law school. Now, what matters are the economic conditions in the spring of 2008. Anybody know what the history of end-of-presidential-term economies is? Where are we on the Kitchen and Juglar cycles? If I'm going to buy Mrs. Strasburg that huge diamond ring I know it'll take to overcome women's natural aversion to my very person, I'm going to need boom times.

Thursday, May 25, 2006

"You think you're radical, but you're not so radical": new albums from The Flaming Lips, Paul Simon, Tool, The Raconteurs, The Fray, etc.

Paul Simon: "Surprise," a collaboration with Brian Eno. No longer doing world music, it now seems he's using "found sounds," odd coaxings from instruments and objects, backing up Simon's trademark ability to use his smooth voice to pass off anything as a melody, something random you'll find yourself humming an hour later, wondering why it doesn't sound as good as the original. This isn't an immediately attractive album, like "Graceland," "Rhythm," or "You're the One," but I think it'll grow on me.

The Walkmen: "A Hundred Miles Off" continues their strange mixture of circus music and screaming, with emptied-out grating guitars with the reverb pedal set to 11. I love these guys: saw them live once at the 930 club in DC, and I thought the lead singer was going to burst a vein or explode the front row's eardrums. "Hundred" doesn't seem as loud as "Bows and Arrows." We'll see.

The Flaming Lips: with every album they sound more---maybe that's just me---like Yes. And late Yes. "You think you're radical, but you're not so radical." Anyway, "At War With the Mystics" is pretty good, and not obnoxious usually. But what's up with releasing a cd explaining your cd? How cocky do you have to be to believe that anyone will actually listen to Mystics Explained? Explain the goddamn pink robots to me. I'm still waiting for that.

Phoenix: French popsters. Hugely infectious tunes. They get my butt bouncing in my seat. An Iberian New Pornographers. "It's Never Been Like That."

Angels and Airwaves: new project of ex-blink-182 member. "We Don't Need to Whisper." Like Vangelis but harder hitting. Stadium rock even the Promise Keepers would love. Very odd.

The Wreckers: why not either go back to some real twang, and listen to some old Hank Williams (Sr.), or go all the way, and drop the conventions of New Country? If you stick with the format, you'd better have some stunning melodies, like Garth Brooks, or be able to discuss the limitations from within, like Dwight Yoakam. I'm not hearing it here.

The Subways: straight-ahead Brit-Punk. Good. Describing "Young for Eternity," the lead singer noted, "We really wanted to create an emotional journey with this record." This scares me a little.

As Fast As: "Open Letter to the Damned." These are instant classics. Each one is a rock radio hit, and they certainly exceed a mere assembly of influences.

Keane: new single, "Is It Any Wonder?" No longer avoiding guitars, they go a bit overboard here. The wa-wa guitar sound is hard to work in with the lead singer's plaintive boyish requests for love, which is why the two never occur at the same time, leading to a pretty disjointed song. Go back to piano.

The Fray: good, solid, adult alternative. Good piano. Nice. Just enough character to avoid getting a frowney-face from me. "How to Save a Life."

The Raconteurs: Yay! Slightly more organized and filled-out White Stripes--complete with Jack White. "Broken Toy Soldier" is a good shift from pure garage rock. There's a tiny bit of power pop: "Together" is a great track, and could be from Cheap Trick.

Janita: Finnish soul singer. Anything I didn't mention? Oh: a cover of Depeche Mode's "Enjoy the Silence." Really cool. Reminds me of Jill Scott of The Roots fame, both in her voice and how oddly hot she is. "Seasons of Life."

Pearl Jam: after a long gap, they're back with a new, higher energy album with some of the rawness of "Ten" and "Vs." But what's up with self-titling late albums, as some sort of "wow, we really understand ourselves now" or "time for a new beginning!" move? Was Blur's "Blur" really more blurry than previous Blur? Are they claiming the hallowed mantle of campy self-ignorant self-awareness, worn by Cheap Trick, Duran Duran, Toto and blink-182? Are they a band that actually will succeed in renovating itself with a later eponymous album, like Supergrass or Broken Social Scene? Are they a band hoping to be taken seriously again with a final gasp, like The Cure? Shouldn't they have gone for a funny, biting self-titled title like REM's "eponymous" or Grandaddy's "The Sophtware Slump"? Come on, Pearl Jam. Call it "11" or something. Oh, sorry: the music is great. Especially "Parachutes" and "Come Back."

Snow Patrol: "Eyes Open" too slow. Sorry. :(

the twilight singers: "Powder Burns." From Greg Dulli of the Afghan Wigs. I don't know the Wigs much; but this album controls the horizontal, and it controls the vertical. Heavy hitting melodies set in deep oceans of atmosphere. Occasional entrance of transylvanian strings and midnight-in-the-garden-of-good-and-evil piano. His voice slides a bit much for me, and is a bit nasal; but, hey, my favorite singer is Geddy Lee, so I can get used to anything. This album is like Iron & Wine, but plugged in, and with a backbone. (Not really, but kind of.)

Slaid Cleaves: why do I dislike Jack Johnson so much but like Slaid? I guess JJ seems like pure adult alternative, with nothing but a miserable singer-songwriter existence, characterless and without context, no history to keep him from writing the Curious George soundtrack. Slaid Cleaves, with more albums to his name ("Unsung" is his new one) has an alt-country legitimacy, a slight lilt in his voice, a hint of roughness, and some strange ability to flesh out his guitar and piano foundation with just the right hints of slide guitar and synths. A bit like Ryan Adams on prescription medication.

: Norwegian crazy people. "Skeleton" is their debut, I believe. Indie rock. Piano and squeaky voice, then punk strums and grunting. Unique. Almost enjoyable. Could be brilliant; not sure. DNA tests will prove The Figurines are Radiohead and Interpol and Sigur Ros's three-way lovechild.

Saint Etienne:
The Streets:
The Constantines:
Sunset Rubdown: reviews to come!

Constitutional Interpretation and the raid on Rep. Jefferson's papers

[See - previous - posts.] [Boehner states this will likely end up at the Supreme Court.] [Post discusses context of FBI corruption probes.]

In Gravel, a Rep who opposed the Vietnam war entered the Pentagon Papers into a committe report, for which his aide was subpoenaed. Just like yesterday's House demand for Jefferson's papers back, in March, 1972 the Senate adopted Senate Resolution 280, submitting an amicus curiae brief to the Supreme Court demanding the executive back off. The Court, however, held that his aide had the same protection as Rep. Gravel; but Gravel himself had little protection. While the Rep couldn't be questioned for anything actually said in a hearing or on the floor, he could be questioned about everything except that, including how he got the Papers, who he got them from, what he did with them, deliberations leading up to the speech, staff discussions, and so forth.

In Brewster, a Rep was charged with soliciting and accepted a bribe from a mail-order company in exchange for a beneficial vote on postal rates. The Court held that the only action of Brewster's that was actually protected was his physical vote-casting. If you can prove bribery without relying on Brewster's vote (whether the two are intertwined or not--see Johnson), you can nab him.

The key holding in Gravel and Brewster is that the Speech or Debate Clause is held to protect "legislative activity," and legislative activity is held to only be actually speaking on the floor or voting there. Chief Justice Parsons in his Gravel dissent summarized the previous judicial holding of Coffin v. Coffin: "legislative activity" is
everything said or done by him, as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules.
So the majority took a formalist approach (looking at the terms of the Speech or Debate Clause in isolation, and then deciding if this is speech or debate), and the dissent took a functionalist approach (the historical and structural purpose of the Speech or Debate Clause is to protect legislators from harrassment).

Another example of these two approaches is Commerce Clause theory: a formalist would first try to determine what commerce is; a functionalist would ask what the Clause's purpose is. In this example you can get either result with either method: a functionalist trying to limit the CC would say the historical purpose was to keep the states from erecting trade barriers; a formalist trying to limit the CC would say commerce is trading merchandise; a functionalist trying to expand the CC would say the purpose is an Amar-like "spillover" test; a formalist would say that commerce is "anything." Similarly for the term limits cases, and campaign finance jurisprudence.

In the same way, here I think you can use functionalism and formalism to get either a pro- or anti-Jefferson result. But I think that functionalism trends in an anti-Brewster (and so pro-Jefferson) direction, while formalism is neutral. Clearly the functionalists have the better argument that a broad legislative protection is more appropriate than a mere on-the-floor privilege. And historically the formalists have a case that speech and debate included more than just actions on the floor. (See White's dissent in Brewster.)

Maybe, though, you need to look at more than one text to discover the underlying structural considerations and avoid a mess. Consider the following doctrinal goulash:
This Court has generally been quite sparing in its recognition of claims to absolute official immunity. One species of such legal protection is beyond challenge: the legislative immunity created by the Speech or Debate Clause, U.S. Const., Art. I, ยง 6, cl. 1. Even here, however, the Court has been careful not to extend the scope of the protection further than its purposes require. See, e. g., Gravel v. United States, 408 U.S. 606, 622-627 (1972); see also Hutchinson v. Proxmire, 443 U.S. 111, 123-133 (1979); Doe v. McMillan, 412 U.S. 306 (1973); United States v. Brewster, 408 U.S. 501 (1972); United States v. Johnson, 383 U.S. 169 [**543] (1966); Kilbourn v. Thompson, 103 U.S. 168 (1881). Furthermore, on facts analogous to those in the case before us, the Court indicated that a United States Congressman would not be entitled to absolute immunity, in a sex-discrimination suit filed by a personal aide whom he had fired, unless such immunity was afforded by the Speech or Debate Clause. Davis v. Passman, 442 U.S. 228, 246 (1979); see also id., at 246, n. 25 (reserving question of qualified immunity).
This is from Forrester v. White, 484 U.S. 219 (1988). Against this vapidity ("we have been careful, blah blah"), one might try to set up an Amar-like intratextualism, finding balancing texts in the constitution that give some indication of an overarching structure. Here, it's pretty simple: juxtapose the Expulsion Clause with the Speech or Debate Clause, and it would seem that the constitution has already made a choice in these matters. The responsibility for disciplining congressional members for bribery is on congress itself, through their expulsion power; this is broadly preserved away from the executive by their priviliege of speech and debate.

If you are against independent counsels, where quasi-executive canines hunt the president, should you be against the executive's power to question congressmen's actions? If you're afraid of an investigation having no natural internal limits (the president firing his attorney general, or congress ending hearings), and you're afraid of cross-branch investigations (special counsels under the control of another branch), shouldn't you then want to draw the Speech or Debate Clause protection broadly, even broadly enough to encompass possible crimes? Why should the possibility of an uninvestigatable crime matter more in construing the Speech or Debate Clause than it does when we refuse to tolerate leashless independent counsels?

Interestingly, if we return from Brewster (1973) to Johnson (1966), it's likely that a fair bit of Buckley(1976)-esque campaign finance legislation goes out the window. The appearance of impropriety will be hard to punish if being improperly boondoggly is the main job of a legislator. (This is explicitly discussed by White in his Brewster dissent.) If you're like me, you'll think the loss of Buckley is a mixed bag, but more blessing than curse.

Why do we believe that there is an executive privilege for secrecy, which is not even in the constitution, when we narrowly construe the speech and debate privilege, which is?

What about the argument that congress didn't exempt congress from bribery laws, and so the executive can attack? It doesn't matter what congress does: congress doesn't get to choose. This is a constitutional provision. Congress no more gets to set what the privileges attaching to the Speech or Debate Clause are than it gets to determine what the Qualifications Clause amounts to.
Congressional resolutions were within protection of speech or debate clause; action seeking injunctive and declaratory relief against House of Representatives resolution excluding Congressman from membership and declaring his seat vacant could be maintained against employees of House of Representatives, but had to be dismissed against those defendants who were Congressmen. Powell v McCormack (1969) 395 US 486, 23 L Ed 2d 491, 89 S Ct 1944.