ProfessorBainbridge.com

Don't "Adopt a Parish"

Hugh Hewitt suggests that we "adopt a parish" that has been affected by Katrina. I appreciate the sentiment. As a Catholic, however, I am only going to contribute to the national office of Catholic Charities, not local Gulf Coast parishes. Why? Because of the decision recently reached by the judge supervising the Diocese of Spokane's bankruptcy case (Spokane declared bankruptcy because the diocese can't pay all the legal claims arising out of the priest abuse scandal.) Here's a news summary of the holding:

U.S. Bankruptcy Judge Patricia Williams of Spokane ruled Aug. 26 that civil property laws prevail in a bankruptcy proceeding despite any internal church laws that might bar a bishop from full control over parish assets. Diocesan lawyers had argued that in church law parish assets belong to the parish itself, not to its pastor or to the bishop. They said that, while the diocesan bishop was nominally the owner in civil law, even in civil law he only held those properties in trust for the parishes themselves. ...

Last December the Spokane Diocese filed for bankruptcy protection under Chapter 11 of the federal Bankruptcy Act, citing $11.1 million in assets and $83.1 million in liabilities, mostly from people seeking recompense for childhood sexual abuse by priests. It did not include parishes, parish schools or cemeteries in its list of assets.

Victims' lawyers claimed that the bishop had more than $80 million in assets under his control if he included the diocese's 82 parishes, 16 diocesan and parochial schools, and various cemeteries and other properties that he claimed he held only in trust. {Ed: What exactly do the lawyers want to with the [expletive deleted] cemeteries? Dig up the bodies and sell the land?}

And here's the real kicker:

Stockton attorney Larry Drivon, who represents hundreds of Californians suing the Catholic Church over childhood sexual abuse, said the Spokane ruling sends a warning to other Catholic dioceses considering bankruptcy to avoid payment of multimillion-dollar jury verdicts in sex-abuse cases. "They are not going to get anywhere in bankruptcy," he said. "This is exactly what we've been saying since Day One, that all of the Catholic assets within the diocese are available to pay these plaintiffs," Drivon said.

Drivon said the ruling also meant that money held in restricted funds within dioceses for special projects, such as construction of a cathedral, can be used to pay judgments in sex-abuse cases, contradicting what some church officials have told donors. "They have told their parishioners, 'Don't worry about the funds that you gave us for the cathedral, because these funds are separate and cannot be used for lawsuits.' Well, they can," Drivon said.

In other words, giving money to a specific parish these days for a specific purpose like Katrina relief is no longer safe from the claims of sex abuse litigants. I firmly believe that the Church needs to compensate the victims of priestly sex abuse, but I also don't want money I give to hurricane relief being diverted to other purposes and, in particular, I don't want it to end up in some trial lawyer's contingent fee.

Update: Hugh acknowledges the risk, but thinks it is minimal because none of the Gulf Coast dioceses are yet in bankruptcy and the money will all be spent quickly. As to the latter, however, there will be needs for months if not years and one hopes people will keep giving to meet those needs. In addition, because they may anticipate long-term needs, not all parishes will spend the money immediately. There may not be much risk, but I'm disinclined to take any risk on this issue.

Law and Lawyers Post-Katrina

An email from a friend reports something I hadn't even considered; namely, the devastation Katrina will cause to the legal system.

5,000 - 6,000 lawyers (1/3 of the lawyers in Louisiana) have lost their offices, their libraries, their computers with all information thereon, their client files - possibly their clients, as one attorney who e-mailed me noted.  As I mentioned before, they are scattered from Florida to Arizona and have nothing to return to.  Their children's schools are gone and, optimistically, the school systems in 8 parishes/counties won't be re-opened until after December.  They must re-locate their lives.

Our state supreme court is under some water - with all appellate files and evidence folders/boxes along with it.  The 5th Circuit Court of Appeals building is under some water - with the same effect.  Right now there may only be 3-4 feet of standing water but, if you think about it, most files are kept in the basements or lower floors of courthouses. What effect will that have on the lives of citizens and lawyers throughout this state and this area of the country?  And on the law?

The city and district courts in as many as 8 parishes/counties are under water, as well as 3 of our circuit courts - with evidence/files at each of them ruined.  The law enforcement offices in those areas are under water - again, with evidence ruined.  6,000 prisoners in 2 prisons and one juvenile facility are having to be securely relocated.  We already have over-crowding at most Louisiana prisons and juvenile facilities. What effect will this have?  And what happens when the evidence in their cases has been destroyed?  Will the guilty be released upon the communities? Will the innocent not be able to prove their innocence?

Our state bar offices are under water.  Our state disciplinary offices are under water - again with evidence ruined.  Our state disciplinary offices are located on Veteran's Blvd. in Metairie.  Those of you who have been watching the news, they continue to show Veteran's Blvd.  It's the shot with the destroyed Target store and shopping center under water and that looks like a long canal.  Our Committee on Bar Admissions is located there and would have been housing the bar exams which have been turned in from the recent July bar exam (this is one time I'll pray the examiners were late in turning them in - we were set to meet in 2 weeks to go over the results).  Will all of those new graduates have to retake the bar exam?

What a disaster. And what very scary questions! I can't imagine how they will even begin to sort all this out.

In related news, via Conglomerate, I learned of a blog that is tracking the whereabouts of Tulane and Loyola law professors and students post-Katrina. So far, thankfully, the news seems to be about as good as it could be under the circumstances.

Juries and Scientific Evidence

The recent Vioxx decision spurred a lot of discussion in the blawgosphere (including a couple of posts by yours truly; e.g., here) about the ability of juries to handle scientific evidence. An empirical study of that very question was just published in the Journal of Legal Studies: Dale A. Nance and Scott B. Morris, Juror Understanding of DNA Evidence: An Empirical Assessment of Presentation Formats for Trace Evidence with a Relatively Small Random-Match Probability. As I read it, it's not good news for my position.

Here's the abstract:

In cases involving scientific evidence linking the accused to a crime (a "match"), expert testimony sometimes can provide a suitably reliable estimate of the chance of a coincidental match. Controversy attends the question whether, and in what form, to allow testimony reporting that probability. Further controversy concerns the implications of laboratory proficiency tests for the presentation of testimony about the chance of lab error. This large-scale empirical study, using members of an Illinois jury pool, confirms earlier research suggesting that, contrary to some predictions, jurors tend to undervalue forensic match evidence. Our results differ from most prior research, however, in showing that variation in the way the random-match probability is presented and explained can reduce the undervaluation, that it can do so without inducing significant inferential fallacies, and that incorporating information about comparatively large lab error rates, when it has any discernible effect, increases jurors' willingness to convict.

Here's the money quote from the conclusion:

There is now significant evidence that, when measured by Bayesian norms, juror assessments can be improved by providing appropriate instruction that offsets the otherwise extant, but reasonableindeed laudable tendency of jurors to discount the probative value of a scientific technique the results or implications of which they do not fully understand.

...our results tend to support a view of trial law as more urgently concerned with assisting the jury to understand the evidence, in this case a DNA match, than with shielding the jury from evidence, such as a calculated random-match probability, that some worry might lead them astray by triggering irrational mistakes or submissive credulity favoring the prosecution.

I have to admit that this study appears to support Beldar's analysis of the Vioxx case rather than mine. It looks like ability to present scientific evidence (at least of this sort) may well be a much bigger factor than the jury pool's intrinsic ability to assess such evidence.

Bias against conservatives in law school hiring

The NYT reports:

[A] study, to be published this fall in The Georgetown Law Journal, analyzes 11 years of records reflecting federal campaign contributions by professors at the top 21 law schools as ranked by U.S. News & World Report. Almost a third of these law professors contribute to campaigns, but of them, the study finds, 81 percent who contributed $200 or more gave wholly or mostly to Democrats; 15 percent gave wholly or mostly to Republicans.

The percentages of professors contributing to Democrats were even more lopsided at some of the most prestigious schools: 91 percent at Harvard, 92 at Yale, 94 at Stanford. ...

Law professors' politics may be similar to those of other academics, but they are not representative of people with similar credentials and incomes. In the 2000 election cycle, according to data from the National Election Study produced at the University of Michigan, 34 percent of people with advanced degrees and 44 percent of those earning $95,000 to $200,000 gave exclusively to Democratic candidates. For law professors, the new study finds, it was 78 percent.

Jim Lindgren comments:

... a professor at the Harvard Law School told me that in 1988 he asked every member of the Harvard Law School faculty with even a hint of conservative or Republican leanings whether they favored or had voted for Bush in 1988. Only one had (1 out of 60-80 faculty); all others favored Dukakis. He also said that in about 2 or 3 dozen entry-level faculty hires from the mid-1970s through about 3 or 4 years ago (when they hired an entry-level conservative), the Harvard Law School had not hired a single Republican.

Now consider this thought experiment: [Imagine that in 1988 all but one of the Harvard Law faculty had favored Bush1 over Dukakis. And] Imagine that over the same period of a quarter century [mid 1970s through early 2000s], the Harvard Law School had hired at the entry-level only those who leaned Republican. Imagine how different the Harvard Law School would be, how different legal education would be, how different the government (and public policy) would be, populated with lawyers trained by an overwhelmingly Republican Harvard faculty. Somehow I think it would be a different world.

Yep. And the MSM/legal left would be screaming bloody murder about discrimination.

Actually, I don't think it's discrimination, so much as a problem of critical mass. I took on this issue in an October 2003 post, opining:

... for a candidate to survive the [law school faculty hiring] winnowing process, somebody has to pull their resume out of the slushpile and make sure it gets flagged for close review. Because most law schools lack a critical mass of libertarian and conservative faculty members, there is nobody predisposed to pulling conservative candidates' AALS form out of the slushpile (and a fair number of folks inclined, whether consciously or subconsciously, to bury it). Meanwhile the latest left-leaning prodigy from Harvard or Yale has a mentor at one of those schools who makes calls to his/her buddies and ideological soulmates at other law schools. The recipients of those calls then flag the prodigy's file, giving them a critical leg-up in the process. It is one of the few moments in the process when somebody is affirmatively trying to hire someone rather than just trying to get rid of the pile. And that, my friends, is why there would be a disparate impact even if there were no deliberate bias.

My TCS column on this subject blasted a couple of favorite arguments of liberals:

Many liberals advance some version of the "conservatives are stupid" argument, only occasionally dressed up in less pejorative forms. For example, here is Duke Philosophy Department chair Robert Brandon's take on the question:

"If, as John Stuart Mill said, stupid people are generally conservative, then there are lots of conservatives we will never hire. Mill's analysis may go some way towards explaining the power of the Republican party in our society and the relative scarcity of Republicans in academia. Players in the NBA tend to be taller than average. There is a good reason for this. Members of academia tend to be a bit smarter than average. There is a good reason for this too."

In fact, however, data from the widely used General Social Survey (GSS) consistently show that Republicans are better educated than Democrats (on average, they have more than half a year more education and hold a higher final degree). In addition, Republicans score better than Democrats on two tests included in the GSS.

Another explanation one sometimes sees is that liberals are better people than conservatives. As George Will observed:

"George Lakoff, a linguistics professor at Berkeley, denies that academic institutions are biased against conservatives. The disparity in hiring, he explains, occurs because conservatives are not as interested as liberals in academic careers. Why does he think liberals are like that? 'Unlike conservatives, they believe in working for the public good and social justice.' That clears that up."

What about all those conservatives who have taken low paying jobs at think tanks like Cato, Heritage, or AEI? Or the public interest lawyers working at low paying jobs at places like the Pacific Legal Foundation? My firm belief is that those institutions provide a pool of individuals who would be perfectly happy to settle into the academy, if they had a fair shot at finding an academic job.

I concluded:

What is to be done? Proponents of diversity, as measured by race, gender, sexual orientation, or what have you, long complained about the "old boys network" that dominated law school hiring. (Oddly enough, as the proponents of such diversity have achieved their own critical mass on most law school campuses, one tends to hear this complaint less often. Indeed, from what I see and hear, there seems to be something a "new boys and girls network" at work.) It's time for us conservatives and libertarians to take up that complaint. We shouldn't ask for affirmative action in favor of our fellow travelers, but we should insist that the pool of candidates not be artificially constricted by either the old or the new networks.

I still think that's about right.

Update: Ann Althouse and Pejman Yousefzadeh have more. Brian Leiter thinks the McGinnis study is "meaningless."

Update: Todd Zywicki blasts three commonly made arguments - rural/urban divide, regional selection, and willingness to apply the scientific method - to smithereens. He then concludes:

... it seems utterly absurd that people are still making uninformed armchair speculation about the causes of the prevailing ideological imbalance in the academy. Is it self-selection? Conservatives are greedier? Conservatives are dumber? When it comes to addressing the issue of other "underrepresented minorities" on college campuses, the record overflows with high profile blue ribbon panels of leading scholars and administrators. No stone is left unturned and no penny left unspent to try to determine why women are "underrepresented" in teaching math and science, or the underrepresentation of minorities. I think maybe it is time to take even a small percentage of those tens of millions being spent at places like Harvard and Columbia and perhaps do a study of the causes of the ideological disparity in the academy, rather than simply speculate and pontificate. At the very least, such a study would eliminate some of the more preposterous hypotheses (such as the idea that conservatives generically like money more than liberals or that conservatives lack the intellecutal frame of mind to succeed in academia).

Well said.

Impeding Science

Here in the US, it is mostly the left that complains (with some justice) that the right is impeding the march of science. (My po st about UC admissions was intended as a comment on political correctness rather than on creationism, which most folks seem to have missed.) At least US social conservatives are trying to save human lives (even if those lives have not yet been born). This week's Economist reminds us that elsewhere, such as in Great Britain, it is the left that is trying to impede science - and with some success - through an animal rights campaign that can only be described as eco- terrorism:

AROUND 30 years ago, the Hall family diversified from dairy and sheep farming into breeding guinea pigs for use in research laboratories. Six years ago, they became the target of animal rights activists. They have been abandoned by frightened suppliers and employees and lost their entire dairy herd, which was slaughtered when their tormentors made it impossible for the milk to be collected. The nadir came last year, when activists stole the body of Gladys Hammond, mother-in-law of one of the Hall brothers, from its grave in the churchyard at Yoxall in Staffordshire.

This week, the family gave up its struggle, saying that by the end of 2005 they would stop breeding guinea pigs at Darley Oaks Farm. They hope this will at last lead to the return of Mrs Hammond's remains.

As for me, I will always come down on the side of people (even if they haven't been born yet). It's clear that animal research can help improve the quality of human life:

One disease under study is cystic fibrosis, which is caused by one of around 200 defects on a single gene. It has no satisfactory treatment, and sufferers cannot expect to live much past 30. Researchers can now create mice with the same genetic defects and test potential treatments on them, or study the progress of the disease. This research could not be carried out on tissue cultures, as the disease affects several organs, and nor could it be done on humans?at least, not without killing them to study the results.

Eco-terrorists are at work here, but our problems don't seem to be as severe as those in the UK. I can't help but wonder, however, how long it will be before this particular brand of terrorism arrives in full force here.

Is Roberts a Neo-Confederate?

Of course not, but SCOTUS nominee John Roberts' increasingly desperate opponents have seized on a 1980s article:

A fastidious editor of other people's copy as well as his own, Roberts began with the words "Until about the time of the Civil War." Then, the Indiana native scratched out the words "Civil War" and replaced them with "War Between the States."

So, naturally, the Washington Post decided this required full coverage in an article blessed with the neutral and objective title: In Article, Roberts's Pen Appeared to Dip South. And, of course, Post reporter Jo Becker hastened to find some academic ready to condemn Roberts (one wonders how many she had to call):

While it is true that the Civil War is also known as the War Between the States, the Encyclopedia Americana notes that the term is used mainly by southerners. Sam McSeveney, a history professor emeritus at Vanderbilt University who specialized in the Civil War, said that Roberts's choice of words was significant.

"Many people who are sympathetic to the Confederate position are more comfortable with the idea of a 'War Between the States,' " McSeveney explained. "People opposed to the civil rights movement of the 1960s and 1970s would undoubtedly be more comfortable with the words he chose."

John M. Coski, the historian and library director of the Museum of the Confederacy in Richmond, said the term was commonplace in the South until the 1960s or early 1970s. He said some people use "War Between the States" out of habit, others think it quaint or iconoclastic, and still others use it because they believe the Confederacy was right to secede.

"You can't always draw the inference that someone who uses the term does so with an ideological intent, but at the same time you can't be blind to the fact that some people do," Coski said. {Ed. Nicely done Professor. You managed to sound objective, while still taking a swipe at Roberts by implying that he might be one of those nasty neo- Confederates.}

This ought to have been a non-story, but of course some of the left-liberal interest groups are all hot an bothered about it. Civilrights.org (an umbrella group) thought it deserved a press release.

I'm on recor d as having no use - none, nada, zilch - for Confederates - neo or paleo or otherwise. If Roberts had changed "the Civil War" to "the War of Northern Aggression," the way the old fart who taught my 10th grade US History course at Hampton High did, I might take a different view (they should have called that course CSA History, even though over 1/3 of the class were African-American descendants of slaves). As things stand, however, this is a MSM-created tempest in a teapot. As Steven Taylor wrote:

... to bring this up in the context of the Roberts nomination, and to quote Professor McSeveny in a fashion that is supposed to raise the specter that Roberts is a closet racist who opposed the civil rights movement, it a tad, well, ridiculous.

And what is that headline supposed to mean? Are we being a tad condescending here, or what?

I will grant that the article goes on to provide an alternative explanation, but it seems quite clear, from the very fact that this piece of information was deemed worthy a story at all, that the reporter and editors and WaPo favor the anti-civil rights angle.

Exactly.

The Beeb and Gender

According to a couple of articles on the BBC's website, men are smarter than women, while women are more vindictive than men in divorce. If I were the Beeb's editor, I would have taken Ann Althouse's advice:

The rule is: always portray whatever you find in the female as superior.

Thomas More

Matthew Mehan's got a very fine roundup of biographies and source materials on St. Thomas More. Because More is the patron saint of lawyers and scholars, I have a special veneration for More, and I was impressed by the amount of material Mehan's puilled together. Clearly I've got some reading to do.

More on Merck and Juries

Many bloggers/blawggers were taken aback by the recent verdict against Merck in the first of the Vioxx trials, mainly because it seemed that the jury failed to grapple with the scientific evidence and the tough causation issues presented by that case (see, e.g., Megan McCardle, Larry Ribstein, Ted Frank, and me, to name just a few). Among other things, all of us asked whether this verdict calls into question the jury system (as I put it, "nothing since the OJ criminal verdict has shaken my faith in juries as much as the details coming out of the recent verdict against Merck in the first Vioxx suit").

The seriousness of the problem is driven home by a WSJ($) op-ed today, in which Betsy McCaughey observed:

Before the trial began, according to the New York Times, Mr. Lanier knew that the autopsy was a problem, and he told his legal team that he was going to "browbeat" the pathologist into supporting his theory linking Vioxx to Ernst's death. How plausible is that theory? "To say that Vioxx did it because a blood clot you didn't find caused a heart attack that left no evidence of heart muscle damage is absolutely speculative," says Dr. Jeffrey Borer, chief of Cardiovascular Pathophysiology at Weill Cornell Medical College. According to an expert on arrhythmia, Dr. John Somberg, professor of Medicine and Pharmacology at Rush Medical College in Chicago. "It is more likely that [Ernst] had a primary arrhythmia" without suffering a heart attack first. Blaming the death on Vioxx, he says, "is very far fetched."

How could a jury believe such a far fetched tale? The jury may have been swayed somewhat by Mr. Lanier's fondness for quoting the Bible and his star quality in Texas as a Baptist preacher, populist Republican, and anti-abortion, anti-corporate crusader. But the fundamental problem, in every state, is that juries drawn from the general population, as wonderful as they are in most cases, lack the expertise to decide medical questions accurately. They often fail. How often? Up to 80% of the time, according to the Harvard Medical Practice Study of litigation in New York state. Similar studies in Utah and Colorado show that verdicts against defendants in medical malpractice cases are seldom justified by evidence. The same lack of expertise hampers juries from reaching fair decisions in trials involving medical products. The results conflict with our commitment to justice and fail to provide fast, fair remedies to actual victims.

So what do we do about it?

Like some others, I suggested that the time may have come to rethink the jury system. Self-described "crusty, longwinded trial lawyer" Beldar has been leaving eloquent defenses of the jury in the comments section of my and other blogs, however, upon which he has now elaborated in a blog post well worth reading. Beldar has been emphasizing two arguments: (1) juries are smarter than a lot of people give them credit for being and (2) maybe Merck's lawyers didn't do a very good job of presenting the evidence to the jury (a possibility I had noted but not emphasized). Hence, he argues that Merck lost

... not because the jurors were stupid or incapable of understanding them [i.e., Merck's scientific arguments], but because they found the arguments and evidence offered by Mrs. Ernst's lawyers and witnesses more persuasive, more accessible, more credible, more sensible.

Maybe.

In any case, in her WSJ op-ed McCaughey offers an alternative that would retain the juries that Beldar praises, while still strengthening barriers against junk science and support for good science; namely, specialized courts:

The jury's verdict shows that our system is failing to provide justice reliably in medical cases. The remedy? Specialized state medical courts, where judges stop lawyers and hired-gun witnesses (for the plaintiff or the defendant) from misleading juries with theories disguised as science, something Judge Ben Hardin failed to do in the Ernst case. ...

In state medical courts, the right to a jury trial, which is guaranteed in most state constitutions, would be preserved. The difference is that medical cases would be assigned to a few judges, who would hear similar cases again and again, recognize the same patterns of fact, and become expert at keeping "junk science" out of the courtroom. Judges would also be given training in scientific evidence and call neutral expert witnesses to help jurors assess conflicting testimony. In many states, this reform could be achieved administratively, without legislation. (New York, for example, has already established 170 specialized courts without legislation.)

I think this is an idea well worth exploring. In an article I co-wrote with my friend Mitu Gulati, How Do Judges Maximize? (The Same Way Everybody Else Does - Boundedly), I explained that generalist judges often have difficulty handling technical issues and therefore tend to resort to decision-making heuristics that tend to increase error rates. Quoting law professor Eric Posner, for example, we observed that:

[C]ourts have trouble understanding the simplest of business relationships. This is not surprising. The judges must be generalists but usually they have narrow backgrounds in a particular field of the law, and they often owe their positions to political connections, not to merit. Their frequent failure to understand transactions is well-documented. One survey of cases involving consumer credit, for example, showed that the judges did not even understand the concept of present value. [Citing Jeffrey E. Allen and Robert J. Staaf, The Nexus between Usury, “Time Price,” and Unconscionability in Installment Sales, 14 UCC L. J. 219 (1982).] The judges struck down contracts because the credit price was higher than the cash price, not taking account of risk and of the time value of money. The authors showed that the implicit interest rates were reasonable. Even when judges do not misunderstand basic ideas, we must take their interpretation of facts on faith. Judges’ reasoning can be evaluated only against the canned facts described in the opinion, which themselves are the result of a fact-finding process that does not inspire confidence. ... Skepticism about the quality of judicial decision-making is reflected in many legal doctrines, including the business judgment rule in corporate law, which restrains courts from second-guessing managers and directors, and the many contract doctrines that restrain courts from second-guessing parties to contracts.

We then argued that this is one reason for Delaware's dominance of corporate law. Delaware has a court - the Court of Chancery - that more-or-less specializes in corporate law. As a result, those judges develop considerable expertise in dealing with the sort of business issues Posner says other judges struggle with. As Mitu and I explained:

Delaware chancellors face a different set of incentives than do federal judges faced with securities fraud claims (or state judges elsewhere faced with limited liability issues). As is true of everyone, the rationality of Delaware chancellors is bounded. As with all judges, Delaware chancellors are time-and resource-constrained. Yet, the Delaware chancellors have considerable incentives to develop specialized expertise in dealing with complex corporate law issues arising in the context of sophisticated financial transactions. In contrast to federal judges who only decide securities cases episodically, Delaware chancellors decide a lot of corporate law cases on an on-going basis, which makes it rational for them to devote effort to mastering both doctrine and the financial world to which the doctrine applies. Because of Delaware’s prominence in corporate law, the reputation of a Delaware chancellor depends mostly on his or her ability to decide corporate law matters quickly, thoroughly, and accurately. Hence, the payoff to devoting effort to such cases is far higher than is the payoff to a federal judge for devoting effort to securities cases. Conversely, given the small size of the Delaware judiciary and their state’s prominence in corporate law, there likely would be a considerable reputational hit if a Delaware chancellor tried to rely on heuristics.

Setting up courts to specialize in technical medical and scientific issues, as McCaughey proposes, thus strikes me as a perfectly plausible compromise that retains the benefits of the jury system (if any) while still being likely to constrain bad science and bad arguments.

Just War and Assassination in War and Peace

There is an interesting discussion in the comment thread to my post on Pat Robertson's comments about Hugo Chavez in which some folks are debating the Christian morality of war versus assassination. I've directed those folks to Marvin Olasky's thoughtful op-ed on the subject, but I wanted to flag it as potentially being of general interest.

Olasky opines:

The televangelist should have remembered Spiderman's message that "with great power comes great responsibility." By his blurting, Robertson aided Venezuelan autocrats such as Vice President Jose Vicente Rangel, who sarcastically said that assassination advocacy was "very Christian" and went on to argue that "religious fundamentalism is one of the great problems facing humanity." ...

... it's hard to see either general or specific biblical warrant for his fatwa. In general, as Paul wrote to Timothy, Christians are to pray "for all people, for kings and all who are in high positions."

Hugo Chavez is an evil tyrant, but so were many Roman emperors -- and Paul told Romans to "bless those who persecute you. ... Repay no one evil for evil, but give thought to do what is honorable in the sight of all." Last time I looked, "assassin" was not on the general list of honorable callings. Wartime is different, but last time I looked, we weren't at war with Venezuela.

Applying Old Testament history to current politics is sometimes exegetically tricky, but the wartime assassinations in Judges 3 and 4 - - Jael hammering a tent peg into Sisera's brain, Ehud the left-handed man thrusting his sword into the fat belly of the king of Moab -- also do not provide warrant for taking out Hugo Chavez. Nor do any of Christ's words or deeds suggest a WWJA (Who Would Jesus Assassinate?) list.

... God is the God of history. He raises up leaders and strikes them down. The Christian goal is to follow biblical principles, including "just war" ones, and not to create new orders. Christians who are careless bring dishonor to God's name by making many believe there is no difference between the pre-eminent religion of peace and the many religions of violence.

Olasky's comments suggest that the right inquiry would be to ask whether just war theory justifies assassinations. I'm going to ask a friend of mine who specializes in the law of force to opine on that question, but here's some preliminary thoughts.

First, here's an analysis arguing that assassination of political leaders during wartime is not inconsistent  with just war theory.

... what if the leaders are removed from the area of hostilities? Are they fair game? International law says they are. Therefore, the idea of assassination being morally wrong loses all meaning during war because the political leaders are legitimate targets. The moral equivalency of the "assassin" is the same as that of the coalition soldier fighting in the desert. It is the dysfunctional agreement during war: both sides try to kill the other side's forces, including the leaders.

I assume from Olasky's apparently careful phrasing that he would agree. On the other hand, however, here is a source positing that some will question that claim:

Political leaders such as Saddam Hussein or Fidel Castro, some have argued, are different: they are not obviously combatants, even where he has ultimate control over the military. Similar difficult questions concern countries where the commander of the military is a civilian, as in the United States. The question is of course further complicated by the problem of assigning combatant status at all when there is not a state of war, especially as regards the problem of terrorism, which takes place in what William Banks calls the "twilight zone between war and peace" (671).

Even if just war theory would permit assassination of enemy leaders during wartime, does it follow that it permits peacetime assassinations of the leader of a state with whom we are not at war? The second source cited above opines:

... it appears that the policy of assassination or targeted killing, though it may be morally legitimate in certain limited circumstances, must in general be considered impermissible under the Just War Doctrine. The principle of respect for human life does not in general allow premeditated, extrajudicial killings of specific individuals. Only in urgent situations or extreme circumstances, where there is no other means to avoid a given imminent harm, can assassinations be permitted. And to the extent the target is a political rather than a military leader, the presumption against assassination must be even stronger.

Presumably, those presumptions would have even more force in peace than in war, or at least I infer that Olasky would so conclude.

On the other hand, as Eugene Volokh notes, albeit without specific reference to the just war tradition, perhaps assassination would be licit as an alternative to war. As such, of course, the assassination would have to satisfy the core precepts of a just war (I've taken the list of element of Catholic just war from this source):

• Just cause. War is permissible only to confront "a real and certain danger," i.e., to protect innocent life, to preserve conditions necessary for decent human existence and to secure basic human rights.
• Competent authority. War must be declared by those with responsibility for public order, not by private groups or individuals.
• Comparative justice. In essence: Which side is sufficiently "right" in a dispute, and are the values at stake critical enough to override the presumption against war? Do the rights and values involved justify killing? Given techniques of propaganda and the ease with which nations and individuals either assume or delude themselves into believing that God or right is clearly on their side, the test of comparative justice may be extremely difficult to apply.
• Right intention. War can be legitimately intended only for the reasons set forth above as a just cause.
• Last resort. For resort to war to be justified, all peaceful alternatives must have been exhausted.
• Probability of success. This is a difficult criterion to apply, but its purpose is to prevent irrational resort to force or hopeless resistance when the outcome of either will clearly be disproportionate or futile.
• Proportionality. This means that the damage to be inflicted and the costs incurred by war must be proportionate to the good expected by taking up arms.

As applied to Chavez, the analysis presumably would run as follows:

Just cause. What is the "real and certain danger"? As far as I can tell, Chavez is no saint, but there does not yet seem to be any real threat to innocent life or basic human rights.

Competent authority. Note that the competent authority here, namely the President, is bound by (although presumably could exempt himself from) executive orders banning assassination of foreign leaders.

Comparative justice. It's hardly clear that Chavez has done anything to us or his own people to justify an intentional extra-judicial targeted killing.

Right intention. Again, what's the just cause?

Last resort. We barely seem to be engaged with Chavez these days, let alone exhausting all alternatives to war.

Probability of success. Who knows? But they tried to kill Castro for years with often humorous failure to show for it.

Proportionality. Again, what has Chavez done that would justify taking him out?

In sum, even if assassination can sometimes be justified either in the context of or as an alternative to just war, it hardly seems that the Chavez case rises to the necessary level.

Hence, I agree with Olasky that Robertson has been irresponsible and even unChristian in his comments.

Stevens on Judging

At the annual ABA meeting, the NYT re ports, SCOTUS Justice John Paul Stevens gave an interesting speech (the full text of which is available here):

Addressing a bar association meeting in Las Vegas, Justice Stevens dissected several of the recent term's decisions, including his own majority opinions in two of the term's most prominent cases. The outcomes were "unwise," he said, but "in each I was convinced that the law compelled a result that I would have opposed if I were a legislator."

On the one hand, I believe that judges should not act as legislators. So I commend Stevens on that score. On the other hand, however, because Stevens eschews traditionalism (my favored mode of interpretation), textualism, and originalism as methodologies of judicial review, he in fact is left largely unconstrained in his decision making. Accordingly, as we saw in yesterday's post on judicial review, there is nothing to prevent Stevens from acting as a legislator rather than a judge and, in fact, many observers would say that in cases like Kelo that was precisely what Stevens did.

As usual, by the way, Althouse just nails it:

Of course, you understand, that a judge who talks like this ? Scalia does it too ? is really bragging about how principled he is.

Precisely.

Dahlia Lithwick Punts

Dahlia Lithwick quotes some very smart conservatives who have recognized that the whole idea of a "living constitution" is just a way for unelected judges to justify imposing their own personal policy preferences on society:

Here's Jonah Goldberg on the allure of a dead Constitution: "A 'living Constitution' denies us our voice in this regard because it basically holds that whatever decisions we make?including the 13^th, 14^th, and 15^th Amendments?can be thrown out by any five dyspeptic justices on the Supreme Court. In other words, the justices who claim the Constitution is a wild card didn't take their oath to uphold and defend the Constitution in good faith because they couldn't know what they were swearing to."

Goldberg goes on to quote Justice Antonin Scalia's dissent in the recent Ten Commandments cases: "What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority, is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that?thumbs up or thumbs down?as their personal preferences dictate."

Dahlia herself is smart enough to recognize that the living constitution is an essential - maybe THE essential - tool of the liberal project. Unfortunately, or so it seems, she's not quite smart enough to figure out a viable defense of the living constitution. So she punts to her readers:

So, I turn to you, dear readers, smart thinkers, and posters of great wisdom in the Fray, to ask simply: Is the living Constitution dead? Are the critics correct?was it all just a great drunken binge of Brennan and Thurgood Marshall's? What is left in its place? Is there room for a Brennan- esque defense anymore? Or am I correct in guessing that Scalia is right this time? Send replies to [email protected] . The best of your answers will be coming soon to a Jurisprudence near you.

At least she recognizes that she wasn't likely to come up with anything useful on her own. Personally, I doubt whether her readers will come up with anything either. The only good constitution is a dead constitution, IMHO.

But I should note that Dahlia's research is pretty skimpy. Her column references a Nexis search for the term "living constitution," which she says produced mainly conservative critiques. If she had skipped over to Nexis' sister service, Lexis, and searched the law reviews, she would find (as I did) over 1000 law review articles in which the term "living constitution" appears, many by some of the leading liberal legal scholars of our day. Maybe she should have spent a little more time on research before just punting.

Alternatively, she could have just popped onto Amazon and bought pre-ordered a copy of SCOTUS Justice Stephen Breyer's new book Active Liberty, of which the WSJ says:

In a book slated for release next month, Justice Breyer -- among the more liberal members of the court -- gives a detailed insight into his philosophy of deciding cases, namely that the Constitution should be viewed in light of its overarching goal, which he sees as creating a participatory, democratic society. In the process, he offers a rejoinder to a longtime intellectual opponent, Justice Antonin Scalia, who advocates "originalism," or a more literal interpretation of the Constitution's meaning at the time of its writing.

... A judge's task, he says, is construing the Constitution in a way "that helps a community of individuals democratically find practical solutions to important contemporary social problems." He calls that freedom to participate in government "active liberty," a complement to passive liberties that protect the individual from interference by the government.

I don't buy Breyer's argument, of course, for precisely the reasons the Journal identifies:

Rep. Tom Feeney, a Florida Republican on the House Judiciary Committee, offers an answer: "Nobody but a subjective, biased judge can determine what active liberty means." Mr. Feeney, who has been a leader among House Republicans seeking to restrain the judiciary, says a better title for Justice Breyer's approach would be "jurisprudential mysticism," since "he thinks he can somehow discern through a crystal ball or a Ouija board what active liberty should produce."

But if I could find it, why couldn't Dahlia? (Kevin Drum found Breyer's book too, mentioning it in a post that attacks originalism, but doesn't offer anything in its place.)

Meanwhile, in related news, it looks like the issue is going to come up in SCOTUS nominee John Roberts' confirmation hearings:

Specter warned Roberts at the beginning of the month that he'd be questioned about the Supreme Court's attitudes toward Congress. In Tuesday's letter, Specter said he wants the nominee to talk to him about "manufactured rationales used by the Supreme Court to exercise the role of super legislature and make public policy decisions which is the core congressional role under the Constitution." (Link )

Competitive Federalism in the EC

Cambridge law professor John Armour has posed to SSRN a new paper making the case for the EC to rely on compeititve federalism in developing its corporate law rather than regulatory harmonization. As long-time readers know, this squares rather nicely with my preferences with respect to US law, but I suspect the article will be of interest even to those without such predispositions.

Here's the abstract:

This paper makes a case for the future development of European corporate law through regulatory competition rather than EC legislation. It is for the first time becoming legally possible for firms within the EU to select the national company law that they wish to govern their activities. A significant number of firms can be expected to exercise this freedom, and national legislatures can be expected to respond by seeking to make their company laws more attractive to firms. Whilst the UK is likely to be the single most successful jurisdiction in attracting firms, the presence of different models of corporate governance within Europe make it quite possible that competition will result in specialisation rather than convergence, and that no Member State will come to dominate as Delaware has done in the US. Procedural safeguards in the legal framework will direct the selection of laws which increase social welfare, as opposed simply to the welfare of those making the choice. Given that European legislators cannot be sure of the 'optimal' model for company law, the future of European company law-making would better be left with Member States than take the form of harmonized legislation.

You can download a short essay of mine defending competitive federalism in US corporation law here.

It's not a First Amendment Issue

Michael Graham got fired from his ABC radio job for making some derogatory remarks about Islam. Now he's claiming:

The First Amendment and I have been evicted from ABC Radio in Washington, DC.

Sorry, but no.

Speaking as a business lawyer, I hate these sort of arguments. The First Amendment limits only the power of government, in general. The First Amendment, absent state action, therefore generally does not prohibit a private employer from firing one of its employees.

This sort of rights talk, claiming to have Constitutional protections one obviously lacks, is particularly disappointing coming from a conservative. I thought one thing almost all conservatives agreed upon was that judges and courts had taken cognizance of too many social issues better left to politics and/or markets. The kind of lose talk in which Graham engaged undercuts that understanding by implying he has some sort of legally cognizable right under the First Amendment to continued employment.

My point is not, of course, that Graham should have been fired. (James Joyner's got a nice analysis of that question.) My point is only that I hate to see conservatives invoking the lex-centric rights language of the left rather than relying on markets and politcs for redress.

Update: LaShawn Barber really gets it, writing:

... The amendment protects citizens from government suppression of speech. It’s a “debate” I’ve had with people who actually thought they had a right to comment on this blog. Sounds ridiculous, doesn’t it? Most got it, but some were too dimwitted to grasp the concept.

ABC Radio is a private entity and within its rights to fire Graham for “cause,” however it’s stipulated in the employment contract. I do think ABC’s actions are un-American and cowardly.

Well put.

Revlon Duties

In the Toys R Us Shareholders Litigation, Delaware VC Strine holds that the directors of Toys R Us did not breach their "Revlon duties" instructuring the sale of the company. Originally, the Toy R Us board had intended only to sell on division. The process of seeking a buyer for that division had turned up four potential bidders. The board subsequently decided to sell the whole company, but did not reopen the bidding process to seek additional potential bidders. Plaintiffs objected to that failure, which Strine dismissed in harsh terms:

I begin by noting my disagreement with the plaintiffs about the nature of players in the American M & A markets. They are not like some of us were in high school. They have no problem with rejection. The great takeover cases of the last quarter century — like Unocal, QVC, and — oh, yeah — Revlon — all involved bidders who were prepared, for financial advantage, to make hostile, unsolicited bids. Over the years, that willingness has not gone away.

... capitalists are not typically timid, and any buyer who seriously wanted to buy the whole Company could have sent a bear hug letter at any time, if it wanted to be genteel about expressing an interest. In all reasonable likelihood, the board’s sales process for Global Toys provided the most credible and likely buyers of the whole Company with information that would have gotten their acquisitorial salivary glands going.

The opinion is instructive for two reasons. First, it confirms the interpretation of Revlon that I offered up in my book Mergers and Acquisitions, in which I observe that (at 351):

... target directors need not be passive observers of market competition. The board's objective, however, "must remain the enhancement of the bidding process for the benefit of the stockholders." Favored treatment of one bidder at any stage of the process was therefore subjected to close scrutiny. Ultimately, the board's basic task was to get the best possible deal, which usually but not always meant the best possible price, for their shareholders. Directors did not need to blindly focus on price to the exclusion of other relevant factors. The board could evaluate offers on such grounds as the proposed form of consideration, tax consequences, firmness of financing, antitrust or other regulatory obstacles, and timing.

Just so, Strine does not accord the board's decision, business judgment rule protection, but also is unwilling to second guess a reasonable board decision about how to conduct a sale of the company.

Second, Strine devotes considerable attention to the question of whether Toy R Us directors and officers engaged in self-dealing and/or had conflicted interests in connection with their conduct of the sale. Again, I think this is consistent with my understanding of Delaware's takeover jurisprudence. As I observe at 366 of Mergers and Acquisitions:

In its takeover jurisprudence, Delaware typically has balanced the competing claims of authority and accountability by varying the standard of review according to the likelihood that the actions of the board or managers will be tainted by conflicted interests in a particular transactional setting and the likelihood that nonlegal forces can effectively constrain those conflicted interests in that setting. In other words, the Delaware cases suggest that motive is the key issue. … If the conflict of interest inherent in [board resistance to unsolicited tender offers] has matured into actual self dealing, the court will invalidate the defensive tactics. If the board acted from proper motives, even if mistakenly, however, the court will leave the defenses in place.

Anyway, this is an important take on the so-called Revlon duties that will be of interest to all corporate lawyers and law students.