Game On

Since I still have time to read news online, I still have time to post the interesting articles that I stumble across. Sorry to deprive ya'll of my rambling commentary (and possibly euphuistic writing style, if you agree with a certain friend of mine).

The court battle over the fate of several Mexican nationals on death row in Texas continues:
http://www.scotusblog.com/wp/move-to-head-off-medellin-execution/#more-7753

This is a tricky situation where the need to respect the "law" as a sort of meta-institutional ideal might trump expedient "justice" (at least in a retributive form, these guys were convicted of gang rape and murder).

Also back in the legal headlines is Joseph Heller, the plaintiff in the landmark DC handgun case. He's challenging the changes that the District of Columbia made in response to the Court's ruling in DC v. Heller (which I still want to flesh out in a blog post): http://www.law.com/jsp/article.jsp?id=1202423333307

This is only the first of what will most likely be many, many lawsuits that are designed to test the limits/clarify Justice Scalia's vague opinion.

Game Off

Folks: things have gotten a little crazy for me and I'm going to have to take a break from blogging for a bit. À plus tard.

FISA Flowcharts!

YES!!!! Created by Wes Alwan with information culled from Balkinization.

This Just In: A Need for Better Explanatory Graphics

A federal judge ruled that the military tribunals in Gitmo can proceed under the MCA, the Congressionally-designed legal proceedings that deal with "enemy combatants." When I first saw this, I was very confused. Didn't the Supreme Court rule in Boumediene that detainees had standing to bring habeas challenges in normal US courts? Well, turns out that many judges are reading Boumediene rather narrowly. So although detainees that are being held without charges can challenge their detentions in habeas proceedings in US courts per Boumediene, if formal criminal charges have already been leveled, as in Hamdan's case, under the MCA, an appeal can only occur once a final judgment has been rendered in a military trial. I'm still trying to wrap my head around all this but maybe this rudimentary flow chart that I worked out will be more helpful than the previous, clunky, clause-ridden sentence.

Hamdan was charged with war crimes --> MCA trial to go forward --> Hamdan moves to delay the trial, challenging the constitutionality of the MCA tribunals, asserting Hamdan's right to a habeas proceeding in US court, and arguing that the war crimes charges are actually ex post facto laws* --> a great Judge (who originally ruled against Bush's detention powers) rules that because there are pending criminal charges against Hamdan, under the MCA, his case has to proceed in Gitmo's military court and that any appeals must come after a final judgment has been rendered.

*The ex post facto claim went before a military judge as part of a separate defense strategy.

I guess the most important thing to remember is the distinction between Hamdan's defense arguments. On the one hand, his lawyers assert that he is being unlawfully detained. Thus, under Boumediene, he should get a habeas trial. On the other hand, Hamdan is challenging the constitutionality of the military tribunals to hear his case (mostly because of evidentiary deficiencies).

I find the ex post facto claim to be the most perplexing because it looks like the courts will sanction the MCA legal proceedings as long as criminal charges are made against the detainees. Will some of the 240 detainees pursuing habeas claims in light of Boumediene suddenly find themselves charged with war crimes, thereby nullifying their habeas proceedings and sending their cases straight to the tribunals? That the issue of ex post facto charges went before a military tribunal in Hamdan's case is also distressing. One of the biggest problems with the tribunals is that they have a vested interest in trying these cases, and, many cynics would say, returning guilty verdicts in order to vindicate the entire Gitmo detention program.

Say it Ain't So

Yesterday morning, I woke up to a flurry of emails from concerned participants in a Law Students for Obama list-serve that I’m on. A brouhaha had erupted over Obama’s vote for the recent FISA overhaul bill that gives immunity to telecommunications companies that provide information to the government via Bush’s warrantless wiretapping program. Plenty of people are pissed, and, in the wake of his vote, Obama even offered a justification to placate enraged supporters, consequently drawing even more scrutiny from commentators [and irate law students]. Is he succumbing to perceived political pressure from the right? Is it a shameless political move made in a desperate attempt to seem tough on national security? Is it political pragmatism? Does he really have such nuanced views about a program that operated covertly, and unconstitutionally, for years?

Frankly, I’m upset about Obama’s vote. Although I understand the argument that he needs to be pragmatic—e.g. not waste political capital fighting attack ads that portray him as “weak” on security—I think that this would have been a perfect chance for Obama to take a principled stance, go on the offensive, and reiterate his core message. Instead, he’s on the defensive, this time warding off criticism from his base instead of combating attacks from the right. Given that McCain wasn’t present on the Senate floor for the FISA vote, I don’t think that the right will get too much mileage out of all this. But I think that Obama’s FISA vote reflects, and possibly portends, some serious problems. Getting out of touch with your base on a key issue (Clinton, Dodd, et al voted against the FISA bill) might fuel the growing sentiment that Obama is wishy-washy and/or disingenuous. Why would Obama cast a vote that allows both ends to the political spectrum to brand him as a flip-flopper? Why is Obama wasting political capital defending his current position, and, in the process drawing even more attention to the disjoint between himself and the Democratic base?

But of course my real gripe is with the new FISA bill, a piece of legislation that will have some seriously negative repercussions for our civil liberties— not to mention that the bill would make it extraordinarily difficult to mount legal challenges against government surveillance measures (thanks to a fellow Obama list-server for the link).

On a final note, at least French intellectuals, not usually prone to optimism, believe that Obama is a sure thing (although the piece opens with some odd praise of McCain).

The "300" School of Foreign Policy

John McCain, on the Iranian missile test:

“There’s an age old Persian ambition to have great influence and perhaps domination of the region."

Thanks, Sen. McCain. Your words evidence a deep understanding of history and will certainly help deescalate current tensions in the Middle East. While you're at it, could you expound on your erudite discussion of the differences between Sunni and Shiite Muslims?

Jabberwocky, Reprise

For some reason, there seems to be a recurrent theme here: whenever the Bush Administration makes an argument for executive privilege (the unitary executive theory) and the need to keep documents classified, references to Lewis Carroll pop up. In this article we also get a nod to Kafka.

During a conference call today, an attorney who has a niche specialty in Open Records Requests and the Freedom of Information Act posited that democracy is more than just the right to vote, it's the right to challenge your government. There is a lot of truth to this statement because the American political and judicial system is predicated on a diffusion of power— one branch of government cannot usurp the powers delegated to another, and one party in a lawsuit cannot deny relevant information to the other party. Fundamental constitutional rights exist as a baseline that guarantees a minimum amount of liberty, and, consequently, political efficacy, for everyone.

This is only true in the abstract, however, because citizens, journalists, and even lawyers do no have unfettered access to government documents. In War on Terror cases, national security issues further cloud this neat theoretical picture (although something in the recent debates about balancing liberty and security strikes me as unoriginal). But even when compromises are made, certain forums—namely courts—are designed to balance and check competing interests under the auspices of nominally objective proceedings. There are provisions in FISA, for example, that allow courts to adjudicate national security-sensitive claims under secure procedural conditions. Seems fair and rationale, right?

What makes the recent executive privilege/wire tapping cases so maddening, as the Salon article illustrates, is that the Bush Administration seems to be mocking the judicial process by suppressing evidence that has already been released. Information that has been released but remains classified, the Administration’s argument goes, does not provide definitive proof of anything. So even though everyone knows, they don’t officially know, which is legally tantamount to not knowing. [insert Lewis Carroll reference].

And, after checking the headlines just now, it turns out that Congress gave the telecommunications companies immunity for participating in the Bush Administration’s secret wiretapping program. Dystopian reading list to come.

Down the Rabbit Hole

Re: the post about using literary references to bolster an argument, a three-judge panel for the DC court of appeals selected a brilliant Lewis Carrol quote to underscore the absurdity of the Bush administration's position that detainees can be kept in Gitmo with little or not evidence. Bush lawyers, employing the ever-popular repetition strategy (it works well in law school), contended that because accusations made against a Chinese Muslim appeared in three separate secret reports, they must therefore be true.

The court's answer, courtesy of the NYTimes:
"The court compared that to the absurd declaration of a character in the Lewis Carroll poem 'The Hunting of the Snark': 'I have said it thrice: What I tell you three times is true.' "

Avid readers, Disney-movie watching children, and hallucinogen aficionados around the world will understand the potency of this reference.

Big Fish to Fry, or Shoot

The last week in June is a wonderful week: the Supreme Court hands down its sexiest opinions of the year and I have a birthday. This particular week has carried some mixed blessings, however, both for me and the left-leaning followers of the court. Perhaps as a harbinger of things to come, I got into a nasty car accident yesterday in which my beloved Volvo crumpled underneath a burly Chevy pickup. Mixed blessing #1: I was fine, the car was totaled. The rest of yesterday and this morning has followed a similar pattern.

Mixed blessing #2: While waiting for my insurance agent to call me back, I checked out SCOTUSblog and was thrilled to read that the justices held Louisiana's child rape death penalty law unconstitutional. Soon after, the court struck down the punitive damages award in the Exxon Valdez case. Choice quote from Stevens's dissent:

"In light of Exxon's decision to permit a lapsed alcoholic to command a supertanker carrying tens of millions of gallons of crude oil through the treacherous waters of Prince William Sound, thereby endangering all of the individuals who depended upon the sound for their livelihoods, the jury could reasonably have given expression to its 'moral condemnation' of Exxon's conduct in the form of this award"

Mixed Blessing #3: The court ruled that we Americans enjoy an individual right to own guns. I live in Texas ipso facto I knew that already. So is this inherently a mixed blessing? Although we can now relish the joys of armed protection, we might have to grapple with some attendant paranoia that the grumpy guy stuck in traffic might be packing a Glock in his glove compartment.

Dereliction of Duty

This past week has been pretty hectic and I apologize for not getting any posts up. Here are some links to tide you all (y'all) over until I have some time to write:

1) Mike, this will partially answer your question about why the vote in Boumediene was so close. Basically, Kennedy has taken over the swing position from O'Connor.

2) It's Supreme Court week over at Slate.com and Dahlia Lithwick, Walter Dellinger, et al have some great commentary on this year's important decisions. I like this one in particular because it chides Scalia for attempting to use fear-mongering as a constitutional argument.

3) In the wake of the Boumediene decision, the Bush administration has been scrambling to figure out how to successfully prosecute cases against Guantanamo detainees in civilian courts. The solution? Re-write the evidence against the detainees.

4) I finished Warlock by Oakley Hall over the weekend. Everyone should read it, not just Pynchon fans. And thematically, it's eerily relevant to the war on terror.

Detainees 3, Bush 0; Also, I <3 David Souter

Huge news from SCOTUS today: the justices ruled 5-4 that Guantanamo detainees are entitled to "prompt habeas corpus hearings," holding §7 of the Military Commission Act unconstitutional. This is the THIRD rebuke that the Bush administration has received from the Court over the handling of enemy combatants. Asked about the ruling while making his final European tour, Bush said that he did not agree with the majority opinion and grudgingly stated that he would abide by the Court's ruling. I put aside my "work" work this morning in order to sift through the 130+ page behemoth of an opinion and here are my findings:

1) Justice Kennedy's majority opinion is a paean to the importance of habeas corpus. He offers a thorough historical exegesis of the writ to support the argument that only extraordinary circumstances allow for a justified invocation of the Constitution's Suspension Clause. The problem, he notes, is that the writ was never formally suspended— the Bush administration simply maintains that habeas does not apply to enemy combatants, and, in the event that it does, the Military Tribunals are an adequate proxy for protecting the detainees constitutional rights. Therefore, the majority in effect challenges the Bush administration to either invoke the Suspension Clause and deny everyone the right to habeas hearings on the grounds that the nation faces imminent wartime dangers, or acknowledge that habeas privileges apply to enemy combatants held in Guantanamo: the Suspension Clause "ensures that, except during periods of formal suspension, the judiciary will have a time tested device, the writ, to maintain the delicate balance of government that is itself the surest safeguard of liberty." As far as review is concerned, Kennedy writes that, "where a person is detained by executive order, rather than, say after being tried and convicted in court, the need for collateral review is most pressing." This is the crux of the detainee cases: there ability of detainees to bring evidence in their defense is limited, if not non-existent. The Military Tribunals are not an acceptable substitution for the minimum requirements of habeas precisely because they limit the detainees' ability to produce evidence and challenge their detentions. In one particularly well-written sentence Kennedy describes the court's position: "we do consider it uncontroversial that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application or interpretation of relevant law."

2) Over the weekend, I read "The Nine," Jeff Toobin's amazing book on the Supreme Court, and I now feel like I have some insider information about the justices' personalities (the book is kind of like US Weekly for SCOTUS nerds). That being said, it seems like Kennedy restrained himself in the Boumediene opinion. Whereas some of his other opinions are rife with flowery, abstract propositions about the fundamental nature of certain liberties, he sticks to a relatively concrete analysis of habeas. This approach allows the majority opinion to deflect some Scalia's originalist-grounded criticisms.

3) Here's why I love David Souter: in his concurrence, he emphasizes that the court is not playing politics but rather applying time-tested Constitutional principles in an effort to remedy the very real injustices that the Guantanamo detainees have endured: "Today's decision is no judicial victory, but an act of perserverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to the prisoners and to the Nation."

3) John Roberts is a smart man, and the first few lines of his dissent made me wonder if my liberal sympathies got the best of my reasoning. His principle line of attack is that the majority never answers the proper threshold question in this case: what rights do enemy combatants have? In particular, what due process rights apply to enemy combatants? Because I felt guilty about slacking off at work for two hours to read the majority and concurring opinions, I only got through the first couple paragraphs of Roberts's dissent. So what I'm about to offer is a very tentative answer to the two questions that he poses. First, it is implicit in Kennedy's opinion that enemy combatants are entitled to habeas privileges. There is precedent to support the applicability of habeas to foreign nationals captured abroad and held by the US military so this seems simple enough. Second, regarding due process, Roberts is mistaken about the priority of his threshold test. Procedural due process rights are typically invoked only after formal charges have been leveled as the parties begin the process of holding a trial. In these enemy combatant cases, however, the issue is rather whether or not a prisoner's detention may be legally justified. Before procedural due process can be invoked, the court must address the status of the detention. Roberts appears to confuse judicial hearings that assess the soundness of the indefinite detention with criminal trials. Again, this is a very cursory analysis, so I hope that some of my law school friends read this and weigh in.

More to come.

Housekeeping

I've gotten a couple of e-mails asking a) what the hell the title of the blog means; and b) what significance the descriptive quote has. So, here are some quick answers.

a) I just shortened the title to Exclusio Unius from the cumbersome Expressio unius est exclusio alterius, which is legalese/legal latin/incomprehensible jargon. If you haven't looked it up on wikipedia yet, it is a canon of statutory construction that means "the express mention of one thing excludes all others." I first learned about it in my 1L ConLaw class in the context of the dormant commerce clause, which is the theory that the individual states are prohibited from regulating interstate commerce because the constitution explicitly gives the federal government that power. Exciting! I like it because it gives me an air of authority that, with only one year of legal education under my belt, I don't exactly have.

b) My constitutional law professor was a man named Lino Graglia, a hard-headed, erudite Brooklynite. He subscribes to the school of thought known as constitutional originalism à la Justices Thomas and Scalia and if the name Robert Bork rings a bell, you might find it interesting that Graglia describes himself as "Borkier than Bork." Consequently, one of his pet peeves is 14th amendment jurisprudence, especially the infamous theory that the 14 amendment encompasses a "penumbra" that gives rise to emanations such as the right to privacy, the right to bodily autonomy, and, by extension, the right to have an abortion. I'm pro-choice, so I like the practical outcome of this theory, but I understand Graglia's point that it might be a bit of a stretch to divine a right to autonomy from the 14th amendment (more on this later). In class, he likened those justices who invoke the "mystical" penumbra to astrologists, and the quote that I use as the blog description is from his lecture on Roe v. Wade.

Airport Notes

I flew to Philadelphia this weekend and had hoped to get some posts up, but it turns out that you have to pay to get internet access in airport terminals— something like five bucks an hour. That's a 1 1/4 gallons of gas! Or a beer at the airport bar! Tired from a day of work/travel and overwhelmed by the sprawling Atlanta airport, I chose the beer. I would be interested to see what Cass Sunstein might think of that choice. He's got a new book in which he directs his behavioral economics gaze at libertarian paternalism. An interesting review of the book that also offers some insight into the direction that Obamanomics might be headed can be found here.

Anyway, I wanted to make a couple more comments about interdisciplinary studies, post-modern intellectual smorgasbords, etc.

1) One of my undergrad professors used to say that Friedrich Schiller was a crappy philosopher because he wrote poetry and that he was a crappy poet because he fancied himself a philosopher. An argument for intellectual purity?

2) Martha Nussbaum wrote a book review in the New Republic (couldn't get the link to work) about philosophers who tackle Shakespeare. Her conclusion: it can be done, just avoid the Phil 101 line of questioning. But there is a difference between the critical standards that Nussbaum outlines in her review and the pop-intellectualism of say, "The Simpsons and Philosophy." Both the complex, nuanced approach and the facile approach have their pros and cons. That's why most worthwhile book reviews consider the author's purpose and intended audience— does the author want to contribute to an ongoing academic inquiry? Or does he want to provide a general philosophical overview using a well-known pop-culture icon as an illustration?

3) Finally, re: TNR/NYRB/New Yorker type publications, do they cater to/breed dilettantes? And is that a bad thing? First, the articles written by academics can be so dense that only a similarly knowledgeable professional will catch all of the references; the rest of us wikipedia them and like to think that we're smarter for it. Second, the staff writers sometimes seem like they heavily rely on wikipedia and/or that Phil 101 course they took as an undergrad at some east coast liberal arts school. My thought, though, is that if you have varied interests, this is one of the best ways to be exposed to a lot of information/ideas/arguments short of going back to grad school.

Transition

I was eating lunch yesterday with a fellow summer intern from Yale Law School and we struck up a conversation about the merits of interdisciplinary approaches to legal education. We both agreed that although these often theory-heavy analyses stoke our intellectual fires, they might not be much help to those law students who want to be monster litigators, tax lawyers, etc. because the law is fundamentally a practical profession. But I still like to think that interdisciplinary study contributes to a deeper understanding of the law and has practical consequences for public policy. Heck, theory might be even be useful in practical, professional legal situations. For example, law and economics might provide some helpful analytic approaches to determine the best way to assign remedies in the event of a breach of contract. Likewise, law and philosophy and a knowledge of legal history would be handy if you find yourself arguing an 8th amendment case in front of the Supreme Court (ahem, Guantanamo. . . ). The glaring problem with my position is that theory/interdisciplinary analysis becomes more "useful" only as you work your way up the legal food chain, i.e. as you take on high profile clients/argue and brief cases at the federal appellate level.

So what about the study of law and literature?

M. Todd Henderson recently wrote a blog post talking about a law and literature class that he took with Martha Nussbaum when he was a student at UChicago. The ostensible goal of the course was to increase the students' capacity for empathy, an idea grounded in an Aristotelian-influenced belief that the study of literature provides insights into the human condition. By extension, increased empathy will spur judges and policy makers—those at the top of the legal food chain—to make better legal and policy decisions.

In a paper that analyzes judicial decisions for literary references (available here), Henderson concludes that literature has had a very small impact on judges, noting that in over 2 million opinions, there were only 543 references to works of fiction and that of those, only 236 "were employed rhetorically to evoke an emotional response in the reader". Henderson concedes that, "of course, a simple count of citations will not definitively answer the question of whether particular works of literature have influenced judicial decisions." This concession leaves the door open for the possibility that literature might have a significant impact on a judge's worldview and implicitly influence his rulings.

One explanation for the paucity of judicial literary references might be that that literature is not an accepted legal authority. Lawyers and judges continually refer to sources of authority, some of which carry more weight than others, and legal arguments are often judged on their ability to properly use this hierarchy. At times, however, the law “runs out,” and other sources of authority must fill the void. Social sciences like psychology and economics are popular, as are history and, to a lesser extent, philosophy. The appeal of these authorities— especially of the social sciences— is that they are easily transposed into syllogistic arguments. The critical study of literature, however, is different, because it allows for different historical, sociological, and philosophical interpretations of works of fiction. Additionally, because the law struggles to maintain at least the veneer of impartiality, it is highly skeptical of “subjectivity,” which receives far more sympathy in literary criticism. I would like to agree with Martha Nussbaum that, “the novel constructs a paradigm of a style of ethical reasoning … in which we get potentially universalizable concrete prescriptions by bringing a general idea of human flourishing to bear on a concrete situation.” But I also think that the law rejects literary insights into the human condition as being authoritative precisely because they don’t exhibit the same “transparent” universiality that the social sciences are perceived as having.

There are, however, near-universal, or at least Western, characteristics of the human condition that are poignantly described in literature. Shakespeare comes to mind and I’m willing to bet that a reference to Lady Macbeth will generally be construed in only one way. No surprise then that Shakespeare and his works are among those most frequently cited by judges. Other literary themes, embodied in a single word or phrase, are commonly accepted as having rhetorical force, “Orwellian” being the best example. Notwithstanding the dearth of literary citations in judicial opinions, the general acceptance of these literary themes/characters/insights provides advocates with valuable argumentative tools. And, for those advocates who argue for a particular conception of human flourishing, perhaps in an appellate court or a policy setting, literature may bolster their case: Ayn Rand for the conservative individualists, the Grapes of Wrath for the liberal socialists. Therefore, that judges don’t explicitly cite works of fiction in their decisions doesn’t preclude advocates from effectively using literary references to make legal arguments. So the study of law and literature might actually have some practical benefits to lawyers, even if it's only applicable in a few limited situations. And if Nussbaum is right that reading fiction improves ethical reasoning, well, there's an argument for all lawyers to start reading novels.

And that’s my long-winded discussion of literature and the law. I have to spend a lot of time in airports this weekend, so I hope to get another couple posts up soon.

First Draft

First, a [fluff] post inspired by Richard Posner, who still has time to write bad-ass book reviews in between handing down decisions on the Seventh Circuit and, well, actually writing books.

Pleasure reading is definitely one of the joys of post-exam life and summer in general. In the last ten days, I've plowed through Michael Chabon's "The Yiddish Policeman's Union" and Per Petterson's "Out Stealing Horses," two books that sated my appetite for both a "page-turner" and something more heavy (I know, they came out last year so many of you have probably already read them. I just didn't have time to get to them with law school or have the desire to spring for the hardcopy).

No surprise that Chabon produced the "page-turner," though I hesitate to use that description because it glosses over the complexity that you can glean from this funny, engaging mystery. I think that it's to Chabon's credit that his counterfactual historical premise doesn't come across as pedantic or self-conscious, which might put the book in the realm of really terrible "political" fiction. The idea of a Jewish pseudo-state in Alaska never seems too contrived to interfere with the plot and it provides a platform for more depth if you want to dig a little deeper in the historical/religious/political references. Not that I wasn't a little scared that the book would devolve into something ridiculous. For example, toward the end of the book, I was worried that the plot was taking a turn towards the utterly fantastic à la whoever the hell wrote the new Indiana Jones screenplay, but after perusing the "liberal news" online, I thought to myself, "maybe this isn't so far-fetched, especially considering the whole premise of the book." In any case, even if you think that Chabon gets too carried away with his counterfactual, it doesn't detract from how engrossing and fun the book is. And despite some messianic undertones, or perhaps because of them, it's hilarious.

Petterson's "Out Stealing Horses" is more psychological and personal, written in the first person narrative of an elderly Norwegian who man moves to a cabin in the woods to live out his dying days. This triggers a lot of introspection, some of it sparked by his intentional separation from other people, some arising unexpectedly from the impossibility of escaping human contact. It was a book that definitely fueled my already too romanticized desire to live in a cabin in the woods by a mountain stream, a dog frolicking in the snow, a couple of Dickens' novels on a side table near the fire, and a bountiful supply of fresh fish to catch and fry (not so much the outhouse idea, but then again, peeing in the snow does have a certain charm). But the beauty of this book doesn't lie in the return to nature motif. The protagonist's spartan lifestyle provides a backdrop that Petterson uses to explore thornier subject matter about family, the aging process, and the struggle for psychological quietude. It's a bit of a truism but I think that only an author from some bleak and magical country like Norway could write about personal tragedy and mortality with such grace.

I'm currently reading Oakley Hall's "Warlock," which will probably take me a couple weeks to finish, especially because I'm starting work tomorrow. Fun fact courtesy of James: Thomas Pynchon and Richard Farina were so obsessed with this book that they used to talk in "Warlock" language when they were students at Cornell in the late 50's. FYI, it's a Western, not a novel about witchcraft/medieval sorcery/dungeons and dragons/etc.

And yes, I'll get some legal stuff up soon.