More Law Schools, Fewer Jobs, Higher Tuition???

An interesting trio of details to consider:

First, we see new law schools springing up across the country, for instance here and maybe here. Second, we know how very difficult it is to find employment as a new lawyer these days. Third, state budget shortfalls may push law school costs up to $60,000 by 2012-13.

Any thoughts on the connection here?

First Latin American Reproductive Rights Congress

This past weekend I presented at the Latin American First Congress on Reproductive Rights organized by the Peruvian Bar Association and the Bars from both Lima and Arequipa at Arequipa, Perú - a beautiful colonnial city. The Congress was a success in terms of I spoke on recent decisions involving termination of anencephalic pregnancies in Latin America - in particular, I discussed "KL v. Perú," a decision by the UN Human Rights Committee that held that forcing women to carry an anencephalic pregnancy to term is cruel, inhuman, and degrading treatment - provided it is dangerous for the woman´s health. The decision is the first by the UN HR Committee on the issue of termination of pregnancy, that is, it is a historical decision.

There are many interesting things to this Congress, but one of them was very peculiar: the fact that, even though Perú is generally taken to be a conservative country, the main bar associations gave their support to this event. This, I think, is remarkable because repro rights are usually associated with abortion, and bar associations would not get involved in such a controversial issue.

Covering the Cost of War

On September 18, Defense Secretary Robert Gates lifed the 18 year old ban on media coverage of the return of the flag draped coffins of fallen soldiers, which was originally imposed by President Bush during the first Gulf War. President Obama, back in February of this year, said that he's considering lifting the ban and asked Secretary Gates to review the policy. The decision to lift the ban was made after a consultation process and polls showing that Americans support showing the coffins. Under the new policy families of fallen soldiers will have to give their consent. The family of Sgt. Dale Griffin, who was killed in Afghanistan by a roadside bomb, was the first to give their consent, and the President attended the ceremony. The new policy, by the way, is consistent with the one at Arlington National Cemetary where military funerals are held.

Upon lifting the ban, Secretary Gates said "I have decided that the decision regarding media coverage of the dignified transfer process at Dover should be made by those most directly affected, on an individual basis, by the families of the fallen" ... "We ought not presume to make that decision in their place."

It seems, then, that the argument that was driving the new policy was one of choice. In these matters, according to the government, it is the family, not the military, that should make such a decision. That may very well be true. Grief and mourning is first and foremost a private matter, and I would be extremely reluctant to go against the wishes of a family that has just lost its loved one. I think, however, that lifting the ban is a good idea not only because of the choice element Secretary Gates referred to.

The Anti-Counterfeiting Trade Agreement (ACTA): Upcoming Negotiations

What is the Anti-Counterfeiting Trade Agreement, also known as ACTA? And why should you care? Counterfeiting, after all, is one of those obscure criminal enterprises, that yes, must be addressed by law enforcement, but why should lawyers, or the general public, be concerned about this one?

Well, first, because ACTA is not, in the main, about counterfeiting, despite its name. The scope is much more broad. It's about intellectual property; and the establishment of new international treaty to provide for greater and more effective global enforcement of intellectual property. Originally announced in 2007 by IP-industry rich states like United States, Japan and European Union member states, ACTA takes aim, once again, at the illegal copying, distribution, and transfer of protected intellectual property; yes, including the Internet. Also now on board? Australia, Canada, the Republic of Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland, and the aforementioned U.S., Japan, and E.U.

A New Online Journal: Jotwell

University of Miami law professor Michael Froomkin has launched a new online journal called Jotwell. The journal has eight different sections--one each for administrative law, constitutional law, corporate law, criminal law, cyberlaw, intellectual property law, tax law, and the legal profession--to which scholars are invited to contribute reviews of good scholarship. I am careful here to say good scholarship, as opposed to scholarship in general, because one of the principal missions of Jotwell is to "celebrate scholarly achievement." In contrast to conventional reviews which invite reviewers to praise and/or critique scholarship, Jotwell seeks to orient reviewers toward the former, that is to say, toward praise. Indeed, as Froomkin writes, "although critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others." An interesting project, in my view--one that augurs well for collegiality in the legal academy and for moving collaboratively toward better answers to enduring questions in law.

Stop thief!

You have to feel sorry for David Chen. On May 23, Chen was minding his Toronto grocery store when a man stole $60 worth of plants. (This part of the story has never been explained to me. Really, who steals plants?) The man returned an hour later. Recognizing him, Chen and two of his employees chased the man down an alley, tied him up, put him in a delivery truck, and proudly waited for the police to arrive. When they did, they promptly arrested Chen for, among other things, kidnapping and unlawful confinement. (See here for the full story.)

The case has sparked plenty of controversy, some of it about Canada's law of citizen's arrest. The law basically allows anyone to arrest a person who is in the process of committing an indictable offence, or a person he believes on good grounds has committed an offence and is running away from (and being chased by) the police. (Section 494 of the Criminal Code.)

Coming out strongly in favour of the law, the Globe and Mail's Marcus Gee yesterday wrote:

"If someone can chase a thief down, tie him up and put him in a truck, why shouldn't he chase the thief through the streets in a car? Why shouldn't he follow him to his house, haul him out on the street and beat him into submission? Why shouldn't a dozen other shopkeepers go with him, bringing not only box cutters but baseball bats? Passions run high when people think they have right on their side, and things can easily get out of hand."

Normally, I like what Gee has to say, but this is a pretty flimsy straw man he's attacking. For one thing, an arrest isn't the same thing as beating someone into 'submission' - not a difficult distinction to draw in the first place, and one the law already makes with respect to police officers. More importantly, it's possible to narrowly define when a person may arrest someone for a crime that's already been committed. Australia, for example, permits a person to make an arrest for an indictable offence when it is not practical to proceed against the person by summons. The UK allows an arrest for an indictable offence that it would not be practical for a police officer to make. Either law would avoid the sort of cases Gee worries about. More to the point, if it wasn't practical for Chen to have called the police, and the theft was an indictable offence (which in Canada theft sometimes is), under either law Chen would have acted lawfully.

Canada's Immigration Minister, Jason Kenney, spoke last month about changing the law on citizen's arrest. If we do go down that road, let's start by looking at laws like Australia's.

Extraordinary Pictures Documenting the Effects of Pollution in China

In 1890, pioneering photojournalist Jacob Riis published How the Other Half Lives: Studies Among the Tenements of New York. The book engendered widespread disgust and embarrassment about the conditions in which New York's tenement-dwellers lived, helping create political momentum to clean up the slums and improve the living standards of America's poorest residents.

A Chinese photographer, Lu Guang, just won a major prize for his documentary project Pollution in China. Will this become China's How the Other Half Lives?

A warning before you click through: many of these pictures are highly disturbing.

The Obama Administration and the International Criminal Court

I don't have time to do this justice right now--and should probably let it sink in first anyway--but isn't off-the-cuff pontificating the essence of blogging?

It seems to me that Obama's just-released policy statement about Darfur is significant, and for reasons that are only tangentially related to Darfur. If nothing else, it's nice to see an American administration paying attention to Darfur, although at this point the policy statement is just lip service--the proof will be in what actions the Obama administration takes. Many of the policy positions taken in the statement about how to rein in violence and promote stability in Sudan seem to my non-expert eye to be judicious and helpful, but what interests me is a fairly offhand comment. Within a list of actions taken by the international community that "demonstrate[] its commitment to the Sudanese people," the statement includes: "Most recently, the International Criminal Court (ICC) issued an arrest warrant for Sudanese President Bashir in early 2009, charging him with having perpetrated war crimes and crimes against humanity in Darfur."

At one level, this is merely a statement of fact: the ICC did issue an arrest warrant for Bashir charging him with crimes against humanity. However, elsewhere in the statement it says that the US will support "international efforts to bring those responsible for genocide and war crimes in Darfur to justice." Taken together, these are the most supportive things a US official policy has ever said about the International Criminal Court. Before this, as far as I know the US has made no definitive statement about the Bashir indictment whatsoever, let alone implied that it might do anything to support Bashir's prosecution. Toward the ICC generally, the US has been cold at best. Under the Bush administration, the U.S. took active steps to undermine the ICC, pressuring countries not to ratify the treaty which created it or to include reservations in their ratification that would have the effect of immunizing Americans from risk of prosecution in The Hague. Obama has not indicated that the US will join the ICC, nor do I expect it to, but this new statement on Darfur may signal the end of active US opposition to the ICC.

Definitely something worth keeping an eye on.

More on the Status of U.S. Territories

A while back, we had a nice discussion on the constitutional standing of Puerto Rico and its status as a legal anomaly in the overal U.S. political system. Over at Balkinization, Alan Tauber has a great post on the overseas U.S. empire, which also includes the Northern Mariana Islands, the U.S. Virgin Islands, Guam, and American Samoa. All the territories differ from one another in terms of their political system, the level of participation in the U.S. political system, the status of their members vis-a-vis the U.S. polity, and the oversight of their judicial system by either U.S. courts or the U.S. Department of Interior. All territories, it seems, can be considered anomalies when compared to the fifty states.

As Martin remarked in his post, such issues are rarely discussed in U.S. constitutional theory scholarship. Alan Tauber's post (and also an article published three years ago) make sense of this complicated situation.

Legal Philosophy between the State and Transnationalism

I just found out that the Nathanson Center on Transnational Human Rights, Crime, and Security has posted the videos and papers of all the presentations of the 2008-2009 Legal Philosophy Seminar Series. The presentations cover a wide range of topics, and the speakers have included Brian Tamanaha, James Tully, Fred Schauer, Victor Tadros, Dwight Newman, Kimberley Brownlee, Wil Waluchow, and Victor V. Ramraj. The video and paper of the first presentation of the 2009-2010 series, Larry May’s “International Criminal Law and the Inner Morality of Law” (presented on September 25th, 2009) can be found here, as well as the schedule for the rest of the year.

LL.M. Programs in the United States

The National Jurist has recently published its annual guide to American LL.M. programs. It is quite handy for prospective students. It surveys LL.M. programs across the United States, ranging from the ones with a particular focus in environmental law, health law, tax law, comparative law, and everything in between. The guide also lists the several LL.M. programs with no specific curricular focus--except, for some inexplicable reason, Yale's own general LL.M. program. I wonder why?

In any event, the guide remains a useful repository of helpful information for those for whom three years of law school is simply not enough!

Athenian Ostracism, Pakistan, and Fledgling Democracies

I thought Columbus Day would be the perfect day to pursue my research agenda, but that was not to be. Though I hoped to spend the day continuing my study of the development of Athenian democracy, I was reminded by the blogosphere that ten years ago on this day Pervez Musharraf successfully led a coup ousting the democratic (for some definition of the term) government of Pakistan. I was quite young when the coup occurred but even then I was aware that the coup was only the latest in a series of oscillations between democracy and military rule in Pakistan. The repeated failure of democratic experiments in Pakistan is a subject near and dear to me, and so, unsurprisingly, in musing on this topic I'm afraid I left Pericles and his friends waiting.

My mind wandered, as it is often wont to do, to the more general problem of maintaining a fledgling democracy in an environment of at least partial hostility. Some of the other nations celebrating Columbus Day today (or, as the case may be, Día de la Raza, Día de la Resistencia Indígena, and Día de la Hispanidad) have had their own experiences with military coups and democratic collapse. Explanations abound. I found to my dismay today that the standard theories and prescriptions remain much as they were when last I saw them a few years ago.

And then I remembered the Greeks.

Obama and the Nobel

OK, so how should I say this: Really?

Here's my sense of things. President Obama is an amazingly accomplished individual, incredibly intelligent, thoughtful, and, I hope, will be one of our best Presidents. I know that I for one have placed a lot of faith in him and his administration and I'm actually quite optimistic for the next years to come.

That said, I cannot understand the Nobel Peace Prize being awarded to him, and I think it is more telling about our attitudes toward him than anything that he has done. In fact, Obama and his administration have been just as surprised about the award as everybody else.

The Committee cited "his extraordinary efforts to strengthen international diplomacy and cooperation between peoples." And "Mr. Obama’s effort to reduce the world’s nuclear arsenal", stating that, "He has created a new international climate".

To this I say, what? Since when do Nobel awards go to creating a climate, which, as of yet, has yet to produce any meaningful or substantive results? Obama has been in office 9 months, and, in terms of world peace, the record has not been outstanding, despite good faith attempts by the Administration. Take, for instance, the Israeli-Palestinian conflict. Obama has not been successful in making Israel commit to ceasing construction in the settlements, and has just barely managed to organize a meeting between Netanyahu and Abu Mazen, which produced no results aside from the meeting itself. With regards to the Iranian nuclear project, talks are to start soon, which I suppose is a good sign, but, again, we don't know what will happen and whether the talks will be successful.

I can't think of any other meaningful initiative that Obama has undertaken in the past nine months that can make sense of the Committee's decision. At any rate, when I compare his actions to those of past winners (including other American presidents) such as Theodore Roosevelt, Woodrow Wilson, Martin Luther King, Mother Teresa, Desmond Tutu, The Dalai Lama, Aung San Suu Kyi, Nelson Mandela, and others, the Committee's decision is even more striking. Many of those people dedicated their life to peace efforts, and many paid a great personal price for their convictions and sacrifices.

Perhaps, when his term is over, we can reflect and think that an award is deserved. However, now it is just too soon. Before celebrating Obama's potential, which is indeed great, let the man accomplish some of the difficult tasks ahead of him.

Supreme Court of Argentina to Hear Same Sex Marriage Case

The Argentine Supreme Court is to decide a case on same sex marriage. The issue is a hot one in Latin America and is slowly becoming an important side to the political agenda. The case came to the Court as an appeal from the National Civil Court of Appeals, (“Cámara Nacional de Apelaciones en lo Civil”) which, in 2007, rejected an injunction brought by a couple of two women that wanted to get married. In the injunction, the couple argued that Art. 172 of the Argentine Civil Code – which requires that marriage be celebrated between individuals of different sex – was unconstitutional. The main arguments of the National Civil Court of Appeals were as follows:

1. Art. 172 of the Argentine Civil Code does not discriminate against same sex couples because homosexuals can get married; they just cannot get married to someone of their same sex.

2. The different sex requirement established by Art. 172 has an “objective and reasonable” justification”: the State´s interest in supporting couples that are prone to procreate and are the basis of the institution of the family.

The "Procurador General" - who argues in name of the State before the Court - has already argued that Article 172 is not unconstitutional and that the issue has to be decided by Congress, but not by the Courts.

My colleague Ezequiel Spector and I have shown that none of these arguments work. First, just as under US Constitutional law, the use of “sexual orientation” under Argentine law is a “suspicious classification,” which makes the norm at stake presumptively unconstitutional. Given this presumption, the State has the burden of showing that there are “compelling State interests” that justify the distinction posed by Art. 172. In the past, the Argentine Supreme Court has held that legal distinctions such as “nationality” and “national origin” are “suspicious classifications” and, therefore, presumptively unconstitutional.

Second, the argument that the State has an interest in supporting couples that will procreate is likely based on the assumption that, if the number of homosexual marriages rises, the number of heterosexual marriages will decrease; if the state permits homosexual marriage, reproduction will decrease and, some day, society will disappear. This argument, however, will not do it: it is not clear that the number of heterosexual marriages would decline were same sex marriage legalized. By no means would heterosexuals start getting married to people of their own sex simply because same sex marriage is legal. In fact, were same sex marriage banned, the number of heterosexual marriages would not necessarily increase - or, at least, it would not increase because of the ban, which would not make homosexuals marry heterosexuals merely because same sex marriage is not allowed. In other words, contrary to what the Court seems to be claiming, there is no zero sum game between heterosexual marriage and same sex marriage. Furthermore, of course, the argument by the Court of Appeal assumes that married couples will necessarily decide to have kids - an obviously false assumption.

Finally, the Court of Appeals also argued that the prohibition respects our prevailing values. The Court concluded that, according to these values, same sex couples do not qualify as a family — “family” is understood as a union between a man and a woman. Now, with regards to the notion of prevailing values, it is important to say that prevailing values are majoritarian values. Now, in a liberal polity like Argentina, the mere fact that marriage has traditionally been conceived as a union between individuals of different sexes does not satisfy the high standard of “imperative State interest” applicable to “suspicious classifications.” This was the position of the Supreme Court of Massachussets in Goodrige v. Department of Public Health 798 N.E.2d 941 (Mass. 2003) where a local law that bannned same marriage was considered unconstitutional. The aim of a liberal constitution is to protect those individuals whose lifestyle is not popular and are more likely to be discriminated against and oppressed by the majority. Just as any other constitution with liberal roots, the aim of the Argentine Constitution is the protection of minorities by means of the establishment of individual rights. The values of the majority do not need to be defended: they are safe precisely because they prevail over other values.

The Court and the Economic Crisis

Today is the beginning of the new Supreme Court October term. Yes, I'm sure everyone here, at least in the U.S., is excited about that. Nothing like a crisp October morning to awaken those long dormant legal skills that have slumbered over the summer.

Lots of things can be said about the new term, and I'm sure most commentators will focus on Justice Sotomayor's rulings. This post, however, will be about the types of cases the Court chose to hear this term. As the New York Times reports, the Court will hear more business and business related cases this year. I don't have the updated figured, but already in June the Court has agreed to hear 24 business cases, up from 16 the previous year. That number has since increased. Among these cases is a case challenging the constitutionality of the Public Company Accounting Oversight Boardnational board set up after the Enron scandal to oversee the auditing industry; another case deals with regulating the compensation paid to mutual fund investment advisers; yet another case deals with the question whether intangible business methods can be patented.

What is the possible meaning of this?

Congratulations to Mirjan Damaška

This was a weekend of dueling conferences: the annual meeting of the American Society of Comparative Law, held at Roger Williams University School of Law, and the Constitution in 2020 hosted at the Yale Law School.

I wish I could have attended both. But I ultimately chose to attend the former for several reasons. First, because I was appointed a delegate. Second, because one of my papers recently appeared in the American Journal of Comparative Law (which operates under the auspices of the American Society of Comparative Law). Third, because the program included a number of interesting panels on such subjects as comparative law methodology and regionalism in comparative law. And, fourth, because the featured event was a dinner to honor Mirjan Damaška with the Lifetime Achievement Award. Damaška, who teaches law at Yale, holds Yale University's highest academic rank--a Sterling Professorship.

Damaška is a giant in the fields of comparative law, evidence, criminal law and legal history. What a privilege it was to be present as he was honored for his enduring contributions to the academy. Richly deserved.

Overturning the Slaughterhouse Cases?

Yesterday, The U.S. Supreme Court granted certiorari in McDonald v. City of Chicago. This was not really a surprise, but at least one aspect of the case is. Briefly, the case deals with the question whether the Second Amendment to the U.S. Constitution (the right to bear arms), applies to the states through the Fourteenth Amendment. Last year, in District of Columbia v. Heller, the Court held that the right to bear arms is an individual right which protects a person's right to own a firearm for personal use. There are many interesting aspects about Heller, for example the use of Originalism by the Court, but I won't be concerned with those here.

Because Heller challenged a D.C. law, the question of applicability to the states and local governments, as opposed to the federal government, was not at issue. But, as expected, that issue was just around the corner and now the Court will decide whether the Second Amendment is "incorporated" into the Fourteenth. The Seventh Circuit decided that the Amendment is not incorporated, relying on several cases, and added that only the Supreme Court can overturn its own precedents. (As an aside, that last point is not obvious to me, and I think it mistaken. David Faigman makes a persuasive argument demonstrating that sometimes lower courts can and should overturn Supreme Court precedents).

Now here's the interesting, and little overlooked, point. The Court will not only consider whether the Second Amendment should be incorporated against the states, but it will also consider whether it applies through the Privileges and Immunities Clause as well, and not just through the Due Process Clause. By doing this, the Court stands at the precipice of overturning one of the most important, and controversial, constitutional cases, the Slaughterhouse Cases (1873).

The Perils of Multitasking?

On Sunday, I posted the following note on my Twitter page: "Multitasking at its best (or worst): at my desk writing about religion in politics, listening to Meet the Press, watching NFL football."

I thought I was being über-productive. My op-ed on religion in politics has since been submitted (and accepted) for publication, President Clinton wowed me as usual during his appearance on Meet the Press, and my concurrent writing palliated some of my intense feelings of guilt for watching yet another football game despite having spent much of Saturday watching college football.

But it turns out, though, that I may have been selling myself short.

On today's edition of On Point with Tom Ashbrook, we learn that multitasking prevents tasks from "getting done well." Interesting.

Maybe I should stop multitasking. I suppose it might improve the quality of my output. But it certainly won't make me feel less guilty about spending an entire day watching football!

(As I type this, I am watching Countdown on MSNBC and listening to the Brian Kenny Show on ESPN radio. I wonder if this post would have been significantly better had I focused my energies on it, and it alone.)

Constitutional Amendment as Protest

Lawmakers in several states have begun to seek state constitutional amendments that will attempt to thwart President Obama's healthcare plan, in that they will outlaw the statutory provisions dealing with healthcare mandates, so reports the New York Times. Briefly, the purpose of the mandate is to, well, mandate that people be covered, by either forcing them to buy health insurance or pay a penalty.

Now, let's assume that these efforts will be successful and that some state constitutions will indeed be amended to reflect the anti-mandate position. This will not be exceedingly hard to accomplish. Unlike the federal constitution, most state constitutions are relatively easy to amend, and are often done through citizen initiatives or referendums. Altogether, there have been more than 12,000 amendments in the constitutions of the 50 states combined.

But, even assuming the passage of these amendments, will it make any difference?

Honduras: Do Constitutions Matter?

The current crisis in Honduras suggests that substantive and procedural constitutionalism is not sufficient to block dictatorial impulses - this is not, of course, an original intuition. It has been suggested before that the fostering of liberal freedoms depends mainly on whether political groups reach an equilibrium favorable to liberal values - I am referring to the game theoretical notion of equilibrium, that is, the idea that in an equilibrium individuals have incentives to keep behaving as they do. The crisis in Honduras suggests that an equilibrium on liberal values depends on factors that are independent of the incentive structure created by a liberal constitution. Perhaps, the international rejection of the coup and the costs associated with such rejection will create incentives favoring respect for liberal freedoms in Honduras? How is it that - what Rawls and others have called - "overlapping consensus" on liberal values is achieved?