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, § 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.

Wednesday, May 24, 2006

So Much Depends...

[EDITOR'S NOTE: Click here for a quick intro of Brittan]

I'm currently on a legal scholar's exchange program in Argentina. Recently we Yalies were taken to observe several judicial hearings.

I was struck by the court's refusal to accept an oath of office, effectively refusing to seat an elected representative who admits torturing and is accused of further crimes against humanity. This is against an international agreement, signed by Argentina (thus having the same weight as a constitutional provision) which should disqualify individuals like Sr. Luis Patti from holding public office. The final holdings should be interesting.

Yesterday Patti had a support rally that was televised live. He said "Human rights are an issue of the Left." One of my roommates jumped up like it was a goal in a futbol match, and the other sucked on her licorice drops with wide pupilled eyes. During the legislative hearing, opposing politicians were also yelling, but in sync with resounding cheers from crowds in the balconies. (If only the US had a heckling gallery in Congress!) We were supposed to be there, but the authorities had to limit the number of onlookers.

I hadn't expected the Dirty War to be such an open issue in judicial forums, but it's really everywhere. Trying to fix the problems resulting from this period seems to really infuse the jurists we've met so far with a palpable sense of purpose. It's really inspiring and makes meetings that I had expected to be somewhat dry and perfunctory into fascinating conversations. The signs of the scabs are all over the streets too -- in the graffiti and the art marring the walls and the cobblestones.

It's difficult for me to imagine that something like that occurred in this place. In other countries, it's been quite easy. Here, the pervasive beauty and lazy sunshine, along with the lovely people, can lure my mind into such a romantic reverie. But today, while standing on a balcony to watch the traffic, I did happen to notice the complete lack of green Ford Falcons (car predominantly used in the disappearances) and remembered that good genocide research ultimately comes down to the details.

William Carlos Williams was sitting by a dying patient and he happened to look outside the window. You probably have heard of the resulting poem, The Red Wheelbarrow":

"so much depends

a red wheel

glazed with rain

beside the white

This poem came to my mind at the moment I thought about the green Falcons. It was a strange juxtaposition...and I pondered how confronting morality on either a large or small scale can bring clarity -- figuratively or literally bringing out the colors of minutia.

One more final post on immigration: comparison of the House and Senate bills

If you care at all about this issue, I suggest you look at the NYTimes side-by-side chart. It is policy without tears. It's simple, quick, and will make you smarter. Go do it.

Jefferson papers: no recent Supreme Court ruling: lower courts may control?

And one more thing about the posts below: Brewster is regarded with a bit of suspicion, and was in the early 1970's; and so recent circuit cases may need to be examined to determine the state of the art here. Also, although Rehnquist signed onto Brewster, the case used an unfortunate severely-bastardized version of originalism in its discussion of the Speech or Debate Clause that even Renny can't have been happy with. The current conservative court makes it especially likely this case is on thin ice.

Of relevance may be
  • Minpeco (1988) 269 U.S. App. D.C. 238 (upholding Congressional Committee hearing privacy),
  • Paisley v CIA (1983) 229 US App DC 372, 712 F2d 686,
  • McSurely v McClellan (1985) 243 US App DC 270, 753 F.2d 88 (unworthy purpose of legislator does not revoke privilege),
  • United States v Kolter (1995) 315 US App DC 166, 71 F3d 425 (privilege cannot be destroyed just by forcing congressman to stand trial),
  • Brown & Williamson Tobacco Corp. v Williams (1995) 314 US App DC 85, 62 F3d 408 (congressional investigators can't be subpoenaed),
  • United States v Helstoski (1980, CA3 NJ) 635 F2d 200 (if criminal prosecution based on legislative acts, indictment must be dropped),
  • United States v Swindall (1992, CA11 Ga) 971 F2d 1531 (similar).
Note that most of these are U.S. Court of Appeals for the District of Columbia Circuit, presumably because most cases are first brought there; this is considered a particularly august circuit for whatever reason, so it's possible that its decisions carry an extra bit of weight.

It might not be too hard to get back to pre-Brewster (1973) law: just return to Johnson (1966). This doesn't help crooked Mr. Jefferson right now--although recall that former IL congressman Dan Rostenkowski got all the way to the DC Circuit in United States v. Rostenkowski, 59 F.3d 1291 (D.C. Cir. 1995)--but it might be relevant. Anyway, should the executive have followed Brewster, with its minimal separation-of-powers protections, or had its own, higher standard of constitutionality? A certain yls student was mercilessly savaged in a certain class by a certain short-tempered professor for something on this point that I can't recall...

Regarding Jefferson's papers, which is more likely: congressional bribery or executive intimidation?

This is one realization I'm having, as I gradually come to regard this seizure with a bit more suspicion. It's true, of course, that Jefferson is likely as crooked as a dog's hind leg, but the question is whether, from an ex ante perspective, you think abuse of an institution's prerogatives is more likely to take place in the executive or the legislative branch, and which power has better mechanisms for keeping itself in check.

This is a hard case, because it's symmetric: it's easy to imagine a Rep being bribed, and it's easy to imagine a Pres intimidating opposition members.

So I'm starting to lean towards a separation of powers argument here, and the fact that a single Rep or Senator can be expelled according to U.S. Const. Article I, Section 5, while it's a lot trickier to discipline a president short of inter-branch nuclear war.

We'll see.

The Gravel and Brewster cases: can Rep. Jefferson's papers be seized?

An excellent law review article on U.S. v. Brewster, 408 U.S. 501, is by Ervin, "The Gravel and Brewster Cases: An Assault on Congressional Independence," 59 Va. L. Rev. 175. I've been skimming it; if I find anything interesting I'll pass it on.

I note also that I misspoke below: U.S. v. Johnson was in fact affirmed by the U.S. Supreme Court in 383 U.S. 169. Johnson could not be prosecuted for being bribed to give a favorable speech before the House.

Rep. Thomas Jefferson Johnson strikes back: bribery will get you nowhere

Interestingly, there is a precedent for congressional brib-ees being entitled to a get out of jail card: U.S. v. Johnson, 337 F.2d 180, discussed the case of a U.S. Rep from Maryland, Johnson, who accepted money to give a speech before the House defending two alleged criminals, for the purpose of getting the DoJ to drop charges against them. For a description of the Speech or Debate Clause and this case, see 78 Harv. L. Rev. 1473. Johnson was found not prosecutable because of the S or D clause, and the court decided that political disgrace and the criminal liability of the brib-ors was enough of a deterrent. Smile. This case is cited by the U.S. Supreme Court, Dennis v. United States, 384 U.S. 855, another prosecution of the brib-ors, and the court again did not decide whether prosecuting a congressional brib-ee was permitted. The later SupCt case, U.S. v. Brewster, 408 U.S. 501, also discusses these issues, though I've yet to read it.

The House will be holding hearings: "
RECKLESS JUSTICE: Did the Saturday Night Raid of Congress Trample the Constitution?" Orin Kerr over at Volokh proposes these spluttering additional hearings:
"I BEG YOUR PARDON: Celebrating the vital role of Presidential pardons when members of Congress get into a wee bit of trouble with the law." Or how about this one: "JOB INSECURITY IN AMERICA: Do we really need to be reelected every two years, or can we be appointed for life like the Judges?"
The quality of debate is not high:
During his own briefing, [House Majority Leader John] Boehner joked with reporters that he was withholding his own strong reservations about the raid because of a staff request that he do so.
Anthropomorphification will get you nowhere:
“The institution has a right to protect itself against the executive branch going into our offices and violating what is the Speech and Debate Clause that essentially says, ‘That’s none of your business, executive branch,’” [House Minority Whip Steny] Hoyer said.
More name coincidences: does this seem like Eddie Murphy in The Distinguished Gentleman?

One more immigration post: protecting vulnerable persons

Here is a forward from a friend:
SA. 4036. Mr. LIEBERMAN submitted an amendment intended to be proposed by him to the bill S. 2611, to provide for comprehensive immigration reform and for other purposes; which was ordered to lie on the table; as follows:
On page 129, beginning on line 15, strike all through page 130, line 16, and insert the following:

(a) *PROTECTION OF VULNERABLE PERSONS.*--A person who is seeking protection, classification or status, as defined in subsection (b), shall not be
prosecuted under section 1028, 1542, 1544, 1546 or 1548, of this title, or section 275 or 276 of the Immigration and Nationality Act (8 U.S.C. 1325 or 1326), in connection with the person's entry or attempted entry into the United States until the person's application for such protection, classification, or status has been adjudicated and denied in accordance with the Immigration and Nationality Act.
(b) *DEFINITION.*--For purposes of this section, a person who is seeking
protection, classification, or status is a person who--
(1) has filed an application for asylum under section 208 of the Immigration and Nationality Act, withholding of removal under section 241(b)(3) of such Act, or relief under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment under title 8 of the Code of Federal Regulations, or after apprehension indicates without delay an intention to apply for such protection and promptly files the application;
(2) has been referred for a credible fear interview, a reasonable fear interview, or an asylum-only hearing under section 235 of the Immigration and Nationality Act or title 8 of the Code of Federal Regulations; or
(3) applies for classification or status under section 101(a)(15)(T), 101(a)(15)(U), 101(a)(27)(J), 101(a)(51), 216(c)(4)(C), 240A(b)(2) or 244(a)(3) of the Immigration and Nationality Act (as in effect on March 31, 1997).
(c) *SAVINGS PROVISION.*--Nothing in this section . . .
As noted earlier, 8 USC 1325 is the provision making it illegal to enter the US under false papers. Feinstein is opposing this amendment, but this is apparently an internal Senate political move--possibly from a previous commitment to Kyl related to earlier negotiations. If you think people should get a shot at asylum despite the use of false papers--and I think there are a lot of reasons why those fleeing from torture might use false papers for legitimate reasons--then please contact Feinstein, especially if you are a Californian, and suggest she change her position and support Lieberman's amendment:
  • 202/224-3841 DC
  • 415/393-0707 SF
  • 310/914-7300 LA
See this earlier post for Lieberman's contact info.

Immigration: the shift from Europeans to Hispanics and Asians

This is just an amazing picture. This shift was set in motion by the Immigration and Nationality Services Act of 1965, which dramatically changed the racial system of immigration into the U.S.

Lyndon Johnson stated, "This bill we sign today is not a revolutionary bill. It does not affect the lives of millions. It will not restructure the shape of our daily lives." And yet it has, and America is far richer and more turbulent because of it.

A co-sponsor of the bill, Emanuel Celler, also claimed:
There will not be, comparatively, many Asians or Africans entering this country... Since the people of Africa and Asia have very few relatives here, comparatively few could immigrate from those countries because they have no family ties in the U.S.
For better or worse, he was wrong. If you believe like I do that America isn't just a mere pan-European project, but something unique that has roots in the entire globe, you'll think this was a good idea.

PS: why do some people use the word Hispanic, and others Latino? In New Mexico, where I grew up, very rarely was the latter heard; and yet in California it is the opposite. Surely there's no difference between NM and CA in how many non-Spanish-descended Latinos---that is, non-Spanish inheritors of the Roman Empire in the New World, such as the Portuguese---there are. Or at least those who would want to claim the term Latino.

Hmm: says wikipedia:
Of a group consisting of a Brazilian, a Colombian, a Mexican, a Spaniard, and a Romanian; the Brazilian, Colombian, and Mexican would all be Latinos, but not the Spaniard or the Romanian, since neither Spain nor Romania are geographically situated in Latin America. Conversely, the Colombian, Mexican and Spaniard would all be Hispanics, but not the Brazilian or the Romanian, since Brazil was colonized by the Portuguese, and neither Portugal or Romania are extensions of Spain. Finally, all of the above nationalities would all be Latin, including the Romanian.
But again, this doesn't explain why the term is used differently in NM and CA, since they are fairly similar demographically, at least among those who would be fighting for the term hispanic or latino. So, I suspect this is arbitrary, a bit like the soda/pop division.

Kansas City Royals...

...are off to their worst start in franchise history: they are 10-33. This, for one of the worst franchises in baseball history. (The worst, btw, is Philadelphia: nearly 10,000 games lost in the past 120-odd years.)

The Royals have ripped off two eleven-game losing streaks already this season. (Nothing compared with their 19-gamer last year.)

The worst all time losing streaks:
  • AL: Baltimore (21) [to open the 1988 season!]
  • NL: Cleveland (24) [way back in 1899]
The New York Mets lost 340 games in three seasons back in the early sixties. The Royals would need to lose 130 games this season to match that.

Unfortunately, they're almost on pace. Projecting their record forward gives them 124 losses: this beats the worst season in modern history, the Tigers of 2003, by five games. (Cleveland in 1899 lost 134 games.)

Always look on the bright side of things: just a few years after their miserable three-season disaster, the Miracle Mets went on to win it all. And the Tigers have truly turned it around, and right now have the best record in baseball, being a game ahead of the world champion ChiSox.

The Royals made it to the playoffs 6 out of 10 years from 1976 to 1985, making it to the world series twice, and winning it in the final year. Someday maybe they'll be that way again. I'll stick with the Royals.

I'm just glad I'm not a Cubs fan.

Roof Bars: Drinking In the Skyline

Everything free in America (for a small fee in America): more immigration news

The Senate voted overwhelmingly yesterday to limit debate on the immigration bill. A final vote is expected later this week; passage by the Senate is considered somewhat likely. The Washington Post bravely leads with "Immigration Battle Likely" between the House and Senate: the House version is a bit sterner. Interestingly, the Hagel-Martinez three-tier category appears to still be live: "those here five years or longer, who could stay and pursue citizenship; those here two to five years, who could apply for green-card status after leaving the country; and those here less than two years, who would be ordered home." (Though the last group could of course still apply for visas from outside the U.S.)

The fight between Grassley (giving employers a safe-harbor protocol for avoiding charges of hiring illegals) and Kennedy (toughening penalties for hiring illegals) went to Grassley: SA.3986-3992 passed.

Three recent stories passed on:
  • From the AP, Feinstein's amendment allowing much more generous terms to illegal immigrants--effectively an asylum provision--was killed. Its detractors, somewhat fairly, labelled it a poison pill; certainly Republicans would not have supported the bill had it allowed all undocumented aliens to remain in the U.S. while undergoing a legalization process.
  • From the WSJ, a discussion of how much all this will cost. Heritage Foundation: $16b / yr. CBO: net of near zero (offsetting food-stamps with new payroll taxes). Total estimated increase in immigration: 66m new immigrants over the next twenty years.
  • See here for a discussion of the possibility of increased detention of asylum applicants. (About which I know very little, but should know more.)

Monday, May 22, 2006

Animal overpass or human underpass?

The NYTimes reports that chickens might soon be able to cross the road---a road which previously divided one of the last grizzly bear refuges in half---on a huge earthen overpass. A few small ones are already in existence, for example near Banff: they are being monitored by pressure sensitive pads and night-vision cameras to check which and how many animals use them.

This is related to the problem discussed by Jared Strasburg in Nature: even if animals aren't killed on the roads, the cutting of a population into two by a highway can further endanger the sexual diversity of a species.

A poem about modern woman: updating the Song of Songs

on my cheeks I wear
the flush of two beers

on my eyes I use
the dark circles of sleepless nights
to great advantage

for lipstick
I wear my lips
Rochelle Kraut, My Makeup
Compare this to, for example, the Song of Songs of the Old Testament:
Thy lips are like a thread of scarlet, and thy speech is comely:
thy temples are like a piece of a pomegranate within thy locks.
Thy neck is like the tower of David builded for an armoury,

whereon there hang a thousand bucklers, all shields of mighty men.
Thy two breasts are like two young roes that are twins,

which feed among the lilies.
It also is reminiscent of Petrarchan amatory poetry--see, for example, Sonnett XXIII, Canzone III, "Whether or not he should cease to love Laura":
Green robes and red, purple, or brown, or gray
No lady ever wore,
Nor hair of gold in sunny tresses twined,
So beautiful as she, who spoils my mind
Of judgment, and from freedom's lofty path,
So draws me with her that I may not bear
Any less heavy yoke...
Who, in all Memory's richest cells, e'er saw
Such angel virtue so rare beauty shrined,
As in those eyes, twin symbols of all worth,
Sweet keys of my gone heart?
There is also poetry where the woman praises and discusses herself from Petrarchan sources (see Ariosto) and Old Testament verse; so the difference between the old days and the new is not a mere subjective turn. The question about this objectification, this analogizing from a woman's body to animals or towers or keys of truth--how are the harms different, or greater or smaller, than Kraut's naturalism? Is Kraut happier than Solomon's beloved, or Laura? Are her eyes baggy from fending for herself?--and has this independence gotten her what she wants? Her cheeks are rouged with drink and her eyes are mascaraed with life, but why are her lips bare?--has she nothing to say? Why is she wearing her lips? Are they protective? Are Solomon's sulamitess and Laura and Kraut overconfident, or underconfident, or broken? Is there some other choice between angel and victim? Does human love risk perversion if not situated in a virtuous mean, if not complemented by the divine love?:
Set me as a seal upon thine heart,
as a seal upon thine arm:
for love is strong as death;
jealousy is cruel as the grave:
the coals thereof are coals of fire,
which hath a most vehement flame.
Many waters cannot quench love,
neither can the floods drown it:
if a man would give all the substance of his house for love,
it would utterly be contemned.
As a wise man recently said, "Eros and agape—ascending love and descending love—can never be completely separated. The more the two, in their different aspects, find a proper unity in the one reality of love, the more the true nature of love in general is realized."

This is the Catholic tradition that caritas is composed of both agape and eros in their right relation, against other intellectual traditions that eros is a perversion. (See, e.g., "Eros and Agape in Karl Barth's Church Dogmatics," 2 Int'l J. Systematic Theology, 189.)

To be a woman--to be strong enough to not be overcome as object, to be strong enough not to retreat into wearing one's self to escape analogy--to fulfill the nature of femininity in all its universality and particularity... As Oscar Wilde noted, "To be natural is such a very difficult pose to keep up." A hard job, for a man or a woman; oddly, maybe it's easier for both together.

Montenegrins Elect to End Union with Serbia

This ends the slow, slow breakup of Yugoslavia. From 1918 to 1991 to 2006, this relationship had a lot of ups and downs. But now it's over, really, really, good and over. Let the post-breakup sex commence.

Sunday, May 21, 2006

One of the best theo-philosophical blogs on the web

Per Caritatum, by Cynthia Nielsen. (The name means "by their carrotatoes," where a carrotato is a cross between carrot and a tater, "tatum" in Latin.)

хорошaя вещь: картина
плохaя вещь: она -- пресвитерианскaя священникaнкa
страшнaя вещь: рyчальное кольцо

An exact tie!!! Harvard and Yale Law Reviews equally good, to two-dozen decimal places

After using their methodology to carry out calculations of the relative value of the Harvard and Yale Law Reviews to over twenty significant figures, investigators threw their hands up and called it a draw. The Relative Value of American Law Reviews, Ronen Perry. Interestingly, the next best law review, the Columbia Law Review, got a 92.8 (out of the 100.000000... points H and Y got). This is pretty similar to the ratio of the next-best law school after Yale according to the USNews rankings, showing a fair bit of dominance of the field in both journals and schools, with the exception that Stanford is now putting up a fight for second. The same results occur in Larry Solum's reports on entry level legal hiring. If you're ever heard of Vilfredo Pareto's other famous idea, the circulation of elites, then this may seem familiar.

More on remittances

1998: Migrant Remittances to Latin America: Reviewing the Literature, Meyers (Inter-American Dialogue, Tomas Rivera Institute) [pro-remittance]

2003: Annual Report of the Inter-American Commission on Human Rights, (Organization of American States) [mixed review]

2005: Remitting Disaster (Will Wilkinson of the Cato Institute at Reason Magazine: on disaster relief through remittances) [pro]

2006: Investigacion: Remesas (Los Clubes Zacatecanos; see also this introduction) [pro]

Saturday, May 20, 2006

Highest-earning Mexicans come to the U.S.; wages of those who stay rise

This from a paper from NBER, "Immigration, Labor Supply, and Earnings in Mexico," Gordon Hanson.

Now 8.6% of Mexicans (born in Mexico) live in the U.S., and this has been steadily rising. This outflow puts upward pressure on those remaining in Mexico: as supply declines, demand for workers goes up. The estimate is that real wages have risen 8% in the past 30 years solely because of outmigration.

But this effect is most pronounced for those with the most education (high school and above): they are the most likely to leave for America, or, if they remain behind, are the biggest wage-gainers. Also, immigration is very region-specific, and, oddly, it's not the areas along the border that contribute most to legal and illegal immigration: it's central Mexican states that are a thousand km from the border--Zacateca, Michoaca, Guanajua. Furthermore, native-born American wages are only weakly correlated with immigrant inflows, so migration probably has little effect on the U.S. wage structure. However, the author puts the decrease in average wages at about 3%: if this hits predominantly poor Americans, this might be a significant effect. Unclear. More to come.

Gnarls Barkley: amoral gospel music

I am not cool enough to recommend this album, but if you like funkadelic hip-hop, check out Gnarls Barkley's debut, "St. Elsewhere." It's a collaboration between Danger Mouse (producer of Gorillaz albums and DangerDoom, and the legend behind the Grey Album) and Cee-Lo. But it's quite different from anything you've ever heard. And very good. Asks Sam Chennault, "Is it amoral gospel music, cinematic soul steeped in idiosyncratic underground hip-hop or left-field indie rock with a drum machine and a basketball fixation?"

Thursday, May 18, 2006

Will Hashemi be admitted to Yale? Don't let your alligator mouth...

...write checks your canary ass can't cash. Put yer money down at TradeSports. Currently running at 3-1 against Hashemi being offered a full degree-program spot on or before 31Aug06.

German toy manufacturer wrecked by Muppet

"A German stuffed toy manufacturer that has exclusive rights to produce the official World Cup mascot -- Goleo VI, a shaggy-maned lion in a football shirt -- has filed for insolvency because no one wants to buy it."

Why is this funny? And why aren't the soccer-lions wearing shorts? And why is only one of them bashful about it? And is this the most useless blog post ever?
Story from Der Spiegel.

Are Sen's "capabilities" the same as Raz and George's "perfections"?

Virtue ethics generally views virtue as a deep-down habit or disposition to do the right thing. It is a concord between reason and the emotions, and it does the right thing for the right reason, and contributes, as much as internal decisions can, to a flourishing human life. But external conditions can help us to become virtuous---a good teacher, wise parents, and a healthy moral ecology are all important. A virtue is thus a capacity to engage in the good life, and is both a prerequisite and a component of individual and civic flourishing. The community is engaged in the project of making its members virtuous, and its members then build a strong community. (See, e.g. this previous post.)

It is no surprise then, to find that Amartya Sen and Martha Nussbaum's description of the central human capabilities are quite similar to John Finnis's list of the human goods in his virtue-ethics classic Natural Law and Natural Rights. And, similarly, "perfectionism"---spelled out by Joseph Raz, Robert George, and other natural law theorists, and reflecting the belief that society has a role to play in making men moral so that they can actualize their own goods---leads to a doctrine similar to the capability approach, of creating an environment that helps individuals develop the tools they need to flourish.

The question, then: is perfectionism more inherently liberal than many natural lawyers would claim (Raz's contention), or is capability theory more sternly objectivist? Googling shows that this question has already been asked, regrettably but unsurprisingly. For example, see Perfectionism, Paternalism, and Liberalism in Sen and Nussbaums's Capability Approach, 14 Rev. Pol. Econ. 497, Severine Deneulin, for an attack on Sen from this latter point of view. Of course, I agree with the paper's minor premise, I just disagree with the conclusions...

Judicial independence and asylum law

A good note on the role of judges in asylum law from Judge Reinhardt. After noting the pretty ironclad independence of Article III judges, he then notes that in the asylum field, most judicial functions are performed by the executive branch (BIA, EOIR), and that the judiciary proper has a fairly limited ability to review them---this is essentially a New Deal administrative law situation. Immigration Judges are DoJ (now DHS) employees, the deportee does not have a right to counsel (and two-thirds are not represented), and the findings of the IJ are given a great deal of deference. (For a typical example of how procedurally Chevron-hard a circuit judge must work to overrule a lower finding, see Mohammed v. Gonzales, by Judge Reinhardt himself. A reversal of an IJ can occur only if "the evidence [that the asylum seeker] presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution," which is quite a high standard.)

Most importantly, Reinhardt's fears in 2001 about streamlining weren't misplaced: Ashcroft's plan in 2002 to cut from 23 to 11 the number of BIA appellate members is indeed generally considered to have been fairly political, with both the cut itself, and the immigration attitudes of the cut members, being somewhat suspect. (I should add that I have never seen an independent assessment of this, though, giving details and evidence of the biased cuts.) This is just what Article III was designed to prevent.

UPDATE: See ELS for a discussion of how shrinking relative Article III salaries may be undermining judicial independence. The salary ratio of being a partner at a big law firm to being a circuit court judge is now about 6.

Posner the contrarian

Hard to underestimate how odd Posner is. He just proposed allowing the CIA to spy inside the US (or, equivalently, creating a parallel agency to do that).

But in the past he's argued that law reviews are idiotic. He went against the tidal wave of Gladwell's Blink. He thinks nothing's wrong with the PATRIOT Act. He is against all medical privacy laws. He's pretty happy with the NSA wiretapping of Americans. He's said the last year of law school is a total waste. [Harvard Law Record 9, Jan. 16, 1998.] The media are morons, and most public intellectuals are, too. His blog is a regular feast of crotchety ill-mannered attacks on the received wisdom.

I wonder what he's like in person. For some reason I bet he lives on unfiltered cigarettes and rot-gut liquor. I want to have his child.

Immigration update: Senate amendments being voted on...

...Thursday 5/18. From an email from New Haven Legal Assistance:
S. Amend. 3985, is sponsored by Sen. Ensign (R - NV) and would make it so that undocumented immigrants who are eventually legalized under the proposed bill could not count any earnings they had while they were undocumented toward their Social Security retirement or disability or survivor's benefits. This would be the case even though the immigrant had paid into the Social Security system through payroll taxes.
S. Amend. 4064, is sponsored by Sen. Inhofe (R - OK) and would require that English be used in all official business of the United States, except when another language is specifically designated in law. While no one is opposed for the government to use English (!), the problem with this amendment is that it would make it less likely for the federal government to provide forms and other services in languages other than English. The amendment also makes it more difficult to obtain citizenship by increasing the English-language and civics requirements.
Again, although I have not thought about this much, I have no problem with an English-language requirement for citizenship. But if the system is being used by immigrants with few such skills, why would you make it harder for them to get forms they can understand? If you want to decrease immigration, lower the quotas; don't let people into the system, and then put incomprehensible obstacles in front of them. Plus, the social security provision just seems mean. Clearly you shouldn't get benefits you are not paying for; but if you are paying into the system, and eventually become legal, what is the point of denying you this money?

The infield fly rule and the common law: who is Pluck the Wonder Chicken?

For a discussion of the wonders of English and American jurisprudential style---its adaptability, its slow but steady solution of pesky problems, its gentlemanliness---see
The Common Law Origins of the Infield Fly Rule, 123 U. Pa. L. Rev. 1474 (1975). Very funny: the very first footnote is to the word "the," and the most mysterious footnote is in a discussion of tricksiness, and how the infield fly rule was designed to avoid it: the footnote text is "See, e.g., Pluck (the Wonder Chicken)." A jab at someone, perhaps? Google reveals nothing...

Am I the only person in the entire law school...

...who, seeing the standard abbreviation for the Supreme Court of the United States, thinks of this guy? That is seriously messed up. Actually, I was raised to think that he was the archenemy of all that is good. An evil nominalist conspiracy has taken over our judicial system!

Liability rules in Intellectual Property Law: covers vs sampling

Here's something odd: why are covers and sampling treated so differently? From the Indiana University Copyright Management Center:
A cover song may be created either by getting permission from the mechanical rights owner or through a compulsory mechanical license. Once the copyright owner of a musical composition records and distributes the work to the public, or allows another to do so, anyone that wishes to record and distribute that same work may do so without permission (subject to certain limitations) by issuing the copyright owner a notice of intention to obtain a compulsory license. The cover song is subject to a compulsory mechanical license which provides the copyright owner an automatic royalty payment for every recording created and sold. The cover artist may negotiate with the copyright owner to secure better terms than what the compulsory license affords the cover artist. However, the copyright owner cannot disallow the cover artist from reproducing and distributing that work if the cover artist is willing to pay the compulsory license.
This is controlled by P.L. 103-198, codified around 17 U.S.C. 107. Compare this with how to obtain permission to use sampled sounds in your own music:
Permission must be secured for the performance rights as well as for the mechanical rights. The performance rights are involved because a sample “performs” part of the songwriter’s composition. The mechanical rights are involved because a sample re-records a part of the original sound recording.
Why isn't the statutory "compulsory system" extended to sampling? Sampling rights would seem to be a great candidate for liability rules rather than property rules, given the transaction costs involved. You'd avoid ridiculous cases like this one, where a band, NWA, was held to have violated copyright law for a truly de minimis sampling from Funkadelic's "Get off Your Ass and Jam" for their song "100 Miles and Runnin'." The sample is warped almost beyond recognition, but someone spotted it. The above website brilliantly mocks the "no de minimis excuse" rule by showing just how much you can make out of the three notes NWA used. If you're interested in sampling, check it out. And of course see The Grey Album.

I'm not necessarily advocating making sampling licenses compulsory; it just seems like covers and samples should be on the same footing. Am I wrong? How much, by the way, do you pay in royalties for a cover song? "9.1 cents or 1.75 cents per minute of playing time or fraction thereof, whichever is greater." And, if you feel bad downloading music illicitly from something like Napster, see this cute graphic from the NYTimes on how you'd go about gettin' legal. Hat tip to Reynard.

The "economic consensus" on immigration

See the open letter by Alex over at Marginal Revolution: even I recognize some of the economists who have already signed on.

Supreme Court Clerkships: How much money would it take for you to have to put up with Scalia?

About $200,000 these days, according to the Post's discussion of how much a law firm will pay in bonuses to hire an ex-clerk. It's probably ten times as much for an ex-Posner clerk, given his crotchetiness. See also ELS: will law schools begin offering bonuses to potential professors who were scotus clerks? Amar would be pissed at this. What Law Schools Can Learn from Billy Beane and the Oakland Athletics, 82 Tex L. Rev. 1483 (2004). What about "What You Can Learn from Buddy Bell and the Kansas City Royals"?

Wednesday, May 17, 2006

News on immigration amendments: "Good fences make good neighbors"

ACCEPTED: Senate Amendment SA. 3979, which repairs deteriorated fencing near Douglas, Nogales, Naco, Lukeville, Yuma, Somerton, and San Luis, Arizona; constructs vehicle barriers in the Tuscon and Yuma Sectors; and constructs "not less than 370 miles of triple-layered fencing which may include portions already constructed in San Diego, Tucson and Yuma Sectors." The location is to be where most smuggling and illegal entry occurs, as determined by the Secretary of Homeland Security. The required completion date is 2 years from enactment.

ACCEPTED: Senate Amendment SA.3965, Cornyn and Kyl, which states: "(A) In general: An alien is ineligible for adjustment to lawful permanent resident status under this section if: ... (iv) the alien has been convicted of a felony or 3 or more misdemeanors." This is new: I believe the previous rule that is being modified is: "Any alien who is convicted of an aggravated felony at any time after admission is deportable," 8 U.S.C. 1227(a)(2)(A)(iii). [I think S.2611 is rewriting this entire section; there's similar language in 8 U.S.C. 1251(a)(4).] The definition of "aggravated felony" was helpfully supplied as a "particularly serious crime." There was certainly a strong justification for excluding those who committed aggravated felonies. But so many things are plain felonies---keep in mind that this could be a state law felony---that this rule could easily catch a lot of (fairly) innocent little fishies. In Arizona, for example, the common law crime of false pretences, "obtaining credit by false pretences as to wealth and mercantile character," is still a felony.

REJECTED: SA. 3963, Vitter. This would have effectively torpedoed any Bush plan for an amnesty by denying the possibility of adjustment to LPR for those who have overstayed their visas by more than two years.

PENDING: SA. 4036, Lieberman. One of the new changes in S.2611 is to treat entering the US on a fraudulent passport (a crime under 8 U.S.C. 1325 and 1326) as a particularly serious crime; this makes it hard on those who had to flee persecution in their home country using false documents. Lieberman's proposed amendment would at least guarantee that those entering illegally and making asylum claims have a chance to get in front of an asylum officer to have their story heard. For asylum lawyers, this is a particularly important amendment to get passed.

PREVIOUSLY ACCEPTED: SA. 3994, Salazar. "To prohibit implementation of title IV and title VI until the President determines that implementation of such titles will strengthen the national security of the United States." That would just require Bush to get out his pen. Passed 5/16/2006.

PREVIOUSLY REJECTED: SA. 3961, "To prohibit the granting of legal status, or adjustment of current status, to any individual who enters or entered the United States in violation of Federal law unless the border security measures authorized under Title I and section 233 are fully completed and fully operational." This was effectively a poison pill. Rejected ("not agreed to") 5/16/2006.

ALSO PENDING: about 70 other amendments. See Thomas.

Even if you have strongly ambivalent feelings about this legislation, like I do, I encourage you to read up on it, and if you find something you think is important or horrific, to call your Senator. Read, for example, this summary of problematic provisions of the new bill, and ask to talk to your Senator's chief of staff.
If you live in Connecticut, and would like to support Lieberman in his amendment to help asylees who flee torture on false passports, his fax number is (too-zeero-too) 224-9750.

A specialized Immigration Court of Appeals?

There's been more buzz about a suggestion that, as far as I know, got its first large-scale public reception about six weeks ago: making a specialized Immigration Court of Appeals---or consolidating all such appeals in, say, the U.S. Court of Appeals for the Federal Circuit---that would sit on top of the (executive branch) Board of Immigration Appeals. Right now, such cases are appealed directly to the circuit court of appeals in which the BIA hearing was physically held. (This is the result of the Ashcroft reform, which is generally, but not universally, considered a disaster, and is slowly being undone. It gives direct access to a very high court, but this leads to overworked judges, and lots of summary and unpublished opinions. If you have worked on an immigration case, you know that the inability until recently to cite an unpublished opinion is maddening.)

The bill S.2611---Arlen Specter's Comprehensive Immigration Reform Act of 2006, which was moved forward on May 15th to be placed on the calendar of the Senate, and is probably being debated as we speak---contains in Sec. 707 the demand for a GAO study on the possibility of:
(1) consolidating all such appeals into an existing circuit court, such as the United States Court of Appeals for the Federal Circuit;
(2) consolidating all such appeals into a centralized appellate court consisting of active circuit court judges temporarily assigned from the various circuits, in a manner similar to the Foreign Intelligence Surveillance Court or the Temporary Emergency Court of Appeals; or
(3) implementing a mechanism by which a panel of active circuit court judges shall have the authority to reassign such appeals from circuits with relatively high caseloads to circuits with relatively low caseloads.
Some possible fears.
  1. A recent New York Times editorial worried that judges nominated to whatever new court took over immigration appeals could be screened for their immigration beliefs by their political appointers. Normally one can't dissociate a judge's immigration attitudes from his broader beliefs, so politicos are forced to a thumb-up/down response to a package deal. (Of course if immigration attitudes are strongly correlated with other politically desirable judicial traits, this subject of law may already be capable of being screened--but I suspect that immigration is largely orthogonal to traditional left-right distinctions.) It's somewhat, um, utilitarian of the NYT to make this argument, given their past attitudes to judicial screening. During Clinton's years: anti-filibuster. During Bush: pro-filibuster. Pot-kettle-black: attacking the Republicans as hypocritical on the filibuster. Good God. Institutional memory hurts. If you think you can win on an issue, you usually call for divisibility; if you think you're likely to lose, you demand a package deal. I don't think the New York Times has faith in the ability of the liberal view of immigration to succeed in the marketplace of ideas--which is sad, because I probably agree with the NYT on this issue.
  2. It is sometimes desirable to have a split in circuits, since this may drive clarifications and developments in the law. Of course, it can also drive confusion and manifest injustice. This is, at root, the problem with federalism. It's both great and it sucks. Go figure. What are the underlying facts that support splits in immigration law? Decentralization makes some sense with regard to criminal, tort, and education law. But what subject could be more apt to national control than the issues of national borders? It's hard to trust liberals or conservatives to use this argument honestly, since both are fair-weather federalists at best.
  3. The danger of institutional capture is quite profound here. If you give lobbyists and activists a single target, they can train all their fire on it; similarly, an immigration-heavy court is vulnerable to infiltration and self-selection by those possible judges who have strong views on immigration. One good example of institutional capture is the U.S. Court of Federal Claims, which adjudicates damage claims against the federal government under, say, the Tucker Act and eminent domain and regulatory takings. This court is generally viewed by outsiders as "tilted ideologically to the right." W. John Moore, Just Compensation, Natl. J., June 13, 1992, at 1404. They are considered strongly libertarian, which scares environmentalists who worry about the danger of the regulatory takings doctrine. Another example of institutional capture is the Patent and Trademark Office, and what amounts to its appellate division, the abovementioned U.S. Court of Appeals for the Federal Circuit. Both have been strongly criticized as being profoundly expansionist, and this is ascribed to their having been captured by pro-patent forces. The very mission statement of the PTO reads: "The primary mission of the [PTO] is to help customers get patents." Not exactly ringing with awareness of the danger of the anti-commons!
There seem to be arguments on both sides: the main danger is that this is a stupid plan to correct for a previous stupid plan, the Ashcroft debacle. The GAO report will come out within 180 days of the passage of S.2611 (or something like it); so the battle to decide what our immigration appeals system looks like is really gearing up.

UPDATE: a colleague has sent me a letter from Harold Koh, dean of Yale Law School, to Senator Specter on this subject. I've been unable to find it online, so I put up the text below the fold. [[[continue reading...]]]

March 14, 2006
The Honorable Arlen Specter
Chairman, Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, DC 20510

Dear Mr. Chairman:

We are law school deans and legal scholars whose areas of scholarship
include federal courts, administrative law, immigration law, and
constitutional law. We write to express our profound reservations
regarding the legislative proposal found in Section 701 of your draft
bill entitled February 24, 2006, Chairman’s Mark. This provision would
place exclusive jurisdiction over all future immigration appeals in
the U.S. Court of Appeals for the Federal Circuit and eliminate the
role of the regional courts of appeals in such appeals. We urge that
this proposal be withdrawn immediately, so that it can be subjected to
the careful study that such a fundamental change in our legal order

Our concerns are based on: the strong, historically grounded
presumption favoring the use of Article III appellate courts of
general jurisdiction in our judicial system; the important values
underlying that tradition; and the often unforeseen negative
consequences that arise when specialized courts are established (and
especially when they are established hastily, as this bill would do).

We are, unsurprisingly, not of one view regarding the costs and
benefits of specialized courts. But we strongly share the view that
transferring categories of cases involving claims of personal liberty
that are currently heard in the regional circuits to a single,
narrowly focused, specialized, commercially oriented court should not
be done precipitously, or without hearings in which experts on
immigration, federal jurisdiction, constitutional law, and
administrative procedure can be heard. We are fully mindful of the
caseload pressures that some circuits are presently facing, due in no
small part to the upsurge in immigration appeals. Nonetheless, we do
not believe that the current situation warrants the radical step of
relegating all immigration appeals to the Federal Circuit, a court of
specialized jurisdiction that currently hears cases involving areas
quite distant from immigration law, such as patents and trademarks,
veterans’ claims, and other miscellaneous matters.

Legal scholars have in the past raised reservations about specialized
courts on numerous grounds. Generalist judges have the benefit of
applying their broad judgment and experience drawn from deciding cases
across many and varied fields of law, while specialist judges are
exposed solely or mostly to a single narrow field of law. This can
generate not only tunnel vision but also an ossification of views in
such judges. Moreover, specialized courts are considerably more prone
than generalist courts to being “captured” by opposing interest
groups or the agency they review. These are dangers that should not be
lightly undertaken when liberty is at stake.

The Honorable Arlen Specter
March 14, 2006
Page 2

In immigration cases, for example, judges are typically asked to
interpret the federal immigration statute, as well as complex and
interrelated questions of constitutional law, criminal law, habeas
corpus, state criminal statutes, family law and individual
liberty. The specialized judges of the Federal Circuit rarely, if
ever, now confront any of these types of claims. Thus, their
consideration of these multifaceted and important issues would arise
overwhelmingly, if not exclusively, in the immigration context. The
Federal Circuit judges would not benefit from the broader experience
of considering similar questions in a wide variety of contexts and
cases that has been one of the hallmarks and strengths of the
generalist tradition of Article III judging.

In addition, as a practical matter, the Federal Circuit would face an
initial caseload crisis and many novel transitional practical and
legal issues, as it confronts the large number of new immigration
appeals from throughout the country. This caseload increase could
dilute the quality of the Federal Circuit’s decision-making not only
in the immigration cases that would be added to its docket, but also
in the areas of its existing jurisdiction. Some of those transitional
issues may diminish over time. Specialized courts are, however, far
more vulnerable to fluctuations in caseload because of their limited
jurisdiction. These kinds of fluctuations can be even more extreme
with immigration cases, due to such factors as changes in patterns of
immigration enforcement and the impact of federal legislation.

Significant issues of fairness and the perception of access to the
courts would also be raised if henceforth, all immigration cases were
heard exclusively in the Federal Circuit. Immigrant petitioners,
unlike commercial litigants, are often not represented by legal
counsel and may be incarcerated during the pendency of any appeal.

We believe, therefore, that altering the appellate jurisdiction of the
regional federal courts to centralize claims in a single specialized
court ought to be, if anything, a response of last resort. This option
should be pursued only after the Judiciary Committees of Congress hold
hearings at which experts are called and thorough study is made. Such
a hearing would permit a thorough consideration of the costs and
benefits of the specific proposal, as well as consideration of the
experience with previous or current specialized courts.

For all the foregoing reasons, we urge you to delete 701 from the
Chairman’s Mark of the immigration legislation, and to consider that
proposal, if at all, at a time and in legislation where the broader
implications and various considerations raised by this proposal can be
fully expressed and evaluated before enactment.

We note that the proposal in section 707 of the Chairman’s Mark to
create a new certificate-of-reviewability gatekeeper system for
immigration appeals is also untested in relation to executive
detention, and it raises constitutionally-sensitive questions of
access to judicial review that would benefit from further study by
your Committee. By expressing our opposition to 701 we do not mean to
suggest any endorsement of section

The Honorable Arlen Specter
March 14, 2006
Page 3

707 or any other provision of the proposed bill, about which we
express no collective view.

If further information regarding our views would be helpful, Harold
Hongju Koh would be pleased to speak or meet with you.


Rochelle C. Dreyfuss
Pauline Newman Professor of Law
New York University School of Law

David A. Martin
Warner-Booker Distinguished
Professor of International Law
Class of 1963 Research Professor
University of Virginia School of Law

Gerald L. Neuman
Herbert Wechsler Professor of Federal
Columbia Law School

Richard L. Revesz
Dean and Lawrence King Professor
of Law
New York University School of Law

Peter H. Schuck
Simeon E. Baldwin Professor of Law
Yale Law School

Kathleen M. Sullivan
Stanley Morrison Professor of Law and
Former Dean
Stanford Law School

Harold Hongju Koh
Dean and Gerard C. and Bernice Latrobe
Smith Professor of International Law
Yale Law School

Henry Paul Monaghan
Harlan Fiske Stone Professor of
Constitutional Law
Columbia Law School

Judith Resnik
Arthur Liman Professor of Law
Yale Law School

Philip G. Schrag
Professor of Law
Georgetown Law School

David L. Shapiro
William Nelson Cromwell Professor
of Law
Harvard Law School

Institutions listed for identification purposes only

cc: Members of the Committee on the Judiciary

[Is it possible they got Secs. 701 and 707 confused, or that the bill has since switched them? The current 701 just increases the number of immigration personnel, which seems to me to be the only currently feasible half-step towards solving the problem. Sec. 707 is the reorganizational portion. Hmm.]