Neutral? No. Still better? Yes.

Dearest A,

I agree with you, up to a point. Yes, the law is political. The law, as molded through the democratic process, is a reflection of our imperfect, political society, interpreted by people who (shocker!) have a point of view.

But I still think the line between elected and appointed judges is valid and should not be erased.

Here's why: Elected judges are bound not to their own ideology, but to the ideology of the people who elected them. If elected judges do not do what their constituents desire, there's a good chance they'll be out on their tookus the next time an election rolls around.

Appointed judges are only appointed once. Once on the bench, they never have to appease anyone, other than themselves, again. This can have both good (Souter) and bad (Roberts) results.

While the political right has certainly used the lifetime appointment of judges to its own advantage over the last few years, making the federal courts considerably more conservative than the American populace, lifetime appointments are still preferable because they free judges from responding to the fevers of the masses.

When we talk about judicial independence, we're usually referring to independence from the legislative or executive branches. But independence from the people is just as important. Without lifetime appointments, judges would be required to respond to the same demands of the electorate as Congress or the President. Then judges could not independently weigh the merits of a legal argument, but would have to consider whether their decisions would cost them re-election. Judicial decisions would more closely mirror the decisions of Congress or the executive.

While you're absolutely right that the appointed judiciary is not by any means "neutral," I think it provides a much-needed offset to the more democratic processes of the legislature and the executive. We need people who can make decisions based simply on what they believe, rather than relying on what their constituents believe.

It may be the worst form of government, but I prefer it to all the other kinds.

Love,
Sammy

Ideology and Bias

Adam Liptak has a new article out, and it dissects the latest effort in the neverending war by business interests against jurisdictions where plaintiffs can recover damages caused by a commercial enterprise -- or, as they are known in industry circles, "judicial hellholes". (Because we all know that the non-enforcement of arbitration clauses in consumer contracts is the first step towards eternal damnation.)

The interesting part of the article, which consists mostly of giving column space to industry flackery and then politely refusing to mock said flackery, is when Liptak brings up the conundrum of elected justices and the propriety of campaign contributions. Liptak cites a particularly egregious example -- the West Virginia Supreme Court reversing a $50 million dollar judgment against a corporation whose chairman had given almost $3 million to a justice's campaign -- and calls it "striking". One of the reasons I think he doesn't call it "corrupt" or "outrageous" is that nobody has ever really resolved where the line marking improper bias lies, and the addition of privately funded elections only further complicates the issue.

Everyone agrees that a judge should not be biased, but there plainly exist multiple distinct judicial philosophies, which often result in very different outcomes for parties. By and large, we consider it appropriate for judges to have a particular ideology (it would, of course, be impossible to not have some sort of judicial philosophy) and when we disagree with the ideology, the acceptable solutions are to overrule, outvote or replace the judge -- not to seek their recusal for bias. Planned Parenthood, for example, does not attempt to have Justice Scalia recused every time they argue before the Supreme Court, even though he is clearly ideologically predisposed to rule against them. Even though the difference can be as simple as "you're losing because I don't like you" versus "you're losing because I follow a ideology that doesn't like you", the former is unacceptable bias, and the latter is okay.

Elections serve to further blur the line between ideology and bias. When a legislative candidate gets elected promising to, say, stop class action lawsuits, we accept that as a debatable point of ideology. When the candidate is elected, and then acts to stop class action lawsuits, we accept that as implementing the policy promised during the election. Shouldn't a judicial election be similar? While a promise to stop class action lawsuits *seems* inappropriate for a judge to make, why else would a state hold elections but to choose judges based on their ideology? And when a judge is elected with the promise to implement that policy, why should this idea of "bias" stop them from doing just that?

To those who are more familiar with the federal model of appointing judges, this all appears unseemly -- judges are making promises when they really should be neutral arbiters of the law. But judges of all political stripes make a whole lot of law, and it is impossible to be neutral, so why not let the people have a say in it? And wouldn't appointed judges essentially have to make promises to the people who appoint them? It doesn't seem so much a matter of judges making promises, but who the judges make promises to.

Furthermore, in the West Virginia case, the injustice would seem to revolve around the campaign contributions by one of the parties, and I think a fair conclusion to draw is that the addition of money pushes judicial ideology into judicial bias. Nobody wants to see even the implication that judicial decisions are for sale. But it seems equally clear that even without any of the money, the conservative justice would have ruled the same way (in favor of the corporate defendant). And it doesn't strike me that the perceived conflict should be any greater than it would be if the legislative candidate had taken money from one of the parties.

When one really examines all of these issues and controversies -- the line between judicial ideology and judicial bias, the supposed conflicts inherent in the election of judges, the influence of campaign money -- one can see that we are just dancing around the truth, that so much of law is political. Perhaps it is time that we learn to deal with this reality.

Levelling the Playing Field

I love your counter-intuitive Hall of Fame theory. In your mind, because Beefed-Up Barry scored better numbers against Roids Roger than Roger Maris did versus some pre-steroids pitchers (my girly lack of sports knowledge rears its ugly head), Bonds has got a stronger case for HoFa induction.

That may be true when you've got two pimple-backed, big-headed players facing off against one another. But I'm betting that, more often than not, Barry was up against pitchers who were not on the juice. That's why his overall numbers are so damned good.

The same problem exists in law and economics. (How's that for bringing it all back home?) The basic premise of l&e is that, in the face of a problem, two individuals will bargain to an optimal solution. This argument assumes that you've got two sophisticated individuals (a Bonds and a Clemens) who tussle it out until each party obtains a decent result. It's perhaps not everything that these guys wanted, but it's enough to make each party happy. Pareto-optimal, as they say.

In reality, it's more like Barry Bonds versus nameless Maris pitcher.

Take your cellphone bill. A big company creates a standard contract that is not open to negotiation. It contains some hella terms that no individual would ever agree to. (Hundred dollar termination fees? Arbitration provisions?) Yet, here we are. Every one of us bowled over by some roided-up company that wields extraordinary power.

Why is it that individuals have so little control when it comes to negotiating with corporations? Clearly, the lack of organization or cohesiveness among individuals are great impediments to bargaining. Is there way that we can overcome those obstacles?

Maybe all we need are some steroids.

Love,
Sammy

Nothing To See Here, Officer

Good call on connecting the Mitchell report to corporate internal investigations involving the "veneer of legal proceedings." Those investigations always seem designed to ward off prosecutors with the old "don't worry, we'll punish ourselves much worse than you could ever punish us" defense.

In many ways, the Mitchell report is much worse than your average internal investigation. Outside law firms conducting internal investigations at least have a weapon with which to force cooperation -- participate with the probe or the company will fire you and, in some cases, not pay for your legal defense. Of course, this power to compel is limited -- the people running the company aren't about to threaten themselves with termination and the law firm isn't about to coerce the people signing its checks -- which is why all internal investigations reach the same conclusion: "it was entirely the fault of the guys we just fired."

Baseball's investigation was in a position even weaker than that. The union told its players that they didn't have to participate in the investigation, and next to nobody volunteered. Similarly, there was no incentive for management to participate, much less to implicate themselves (say, didn't the teams hire the trainers who supplied the drugs?). The investigators thus lacked either the subpoena power or the ability to contractually force individuals to give testimony. Baseball's internal investigation -- perhaps in an attempt to infuriate everyone -- ended up making management look feckless, the union shady, and the results of the report questionable at best.

-----------------

On an unrelated note, shouldn't the report actually *increase* Barry Bonds' chances for the Hall of Fame? I mean, he was the best hitter of his generation (maybe ever) and he set all sorts of offensive records. It's hard enough to do that against regular pitching, but he did it against pitchers who were, apparently, all on steroids. (Same argument in reverse for Clemens.)

Steroids and Baseball

Dear A,

The Mitchell Report is finally out. The big question: what next?

Barry Bonds has already been indicted for perjury and obstruction of justice for lying to the grand jury in the BALCO case. Rafael Palmeiro told Congress, "I have never used steroids. Period." He could be next.

But any criminal charges for steroid use? Unlikely. This report was done, in part, to ward off the specter of criminal prosecutions that arose with BALCO.

When corporations find themselves in trouble, they do exactly the same thing. They hire law firms to investigate the wrongdoing and then provide those findings to prosecutors or attorneys general. This use of an outside law firm provides the company with the veneer of legal proceedings without the annoyance of actual legal proceedings.

The same thing is happening here. A pseudo-investigatory body, without any real authority from a court or legislative committee, has issued a lengthy report on steroids in baseball. And now MLB can point to the report whenever there's a question of another investigation. "Look! See! We've already done one!," it can say.

But it hasn't. Not really. Because George Mitchell and his team only acted as government investigators. They could not act as government prosecutors.

By co-opting the first role, MLB may have circumvented the second.

Love,
Sammy

More On The Physical Limits Of The Law

From Slate:

"Last Friday, the Supreme Court voted to take up the appeals of two American citizens being held by the United States in Iraq ... Both brought petitions in American courts challenging their detentions. Both are being detained not by the United States alone, but by the multinational force in Iraq, and given this custody, the Bush administration has argued that no American court can address their petitions."

It's as if the Court saw your "police action abroad" ("cross-border police initiatives", "war on drugs", "war against terror", and "other ambiguous wars that have taken our police power all over the globe") and raised it to a "battlefield in Iraq" -- i.e., an incredibly ambiguous situation involving a supposedly sovereign nation which shares the monopoly (duopoly?) over the use of force with the United States Armed Forces. If you thought determining the proper scope of constitutional rights was hard in those settings, imagine the difficulty of sorting through rights, sovereignty and the "traveling constitution" in a war zone.

The authors are correct to assert that these cases are "crucial to the Supreme Court's interventions in the war on terror", but they are clearly also crucial to our understanding of the geography of constitutional/statutory rights against the government. Note that the district courts and D.C. circuit court rejected the "hat" theory of constitutional rights (the courts held that their status as Americans didn't entitle them to any special rights), so if there is to be any relief for these plaintiffs, it would have to come from the "Spider-Man" theory.

Let's hope that the Court sees the Constitution that way -- as a system of necessary restraints on a powerful government -- instead of believing that constitutional rights, which are so critical for American citizens, suddenly become irrelevant and deleterious outside our borders.

Hats, Backpacks, and Big Hairy Dogs

Dearest A,

My position towards government action abroad is aptly summed up by Uncle Ben: "With great power comes great responsibility."

Just because we have unrestricted power doesn't mean we should wield it. True, the Constitution does not put any explicit limitations on government actions outside American borders, but the Constitution was written during a time when police action abroad simply did not occur. There was no CIA back in the day. No cross-border police initiatives. No war on drugs, war against terror, or any of the other ambiguous wars that have taken our police power all over the globe.

The real question here is whether the Constitution gives its citizens positive rights, or if it acts as a restraint on the government.

If the Constitution is embuing American citizens with positive rights, then the rights reside with the people. They're like hats possessed by each citizen. There are rules for giving out the hats. And once someone gets one, she can choose whether she wants to wear it. But just because the government has reached out and affected the life of someone other than a citizen doesn't mean this new person also gets a hat.

But, if the Constitution is simply a series of restrictions on government action, then the negative rights rest with the government. It's like a big, heavy backpack that the government always has to carry around. Unlike with the hats, the government has to keep the backpack on his shoulders. The Constitution doesn't give the government a choice.

I believe the Constitution is a series of don'ts for the government. I believe that the government must abide by these don'ts, even when detaining a person in Mexico or Afghanistan. I believe the Supreme Court is wrong when they say that the Fourth Amendment does not apply to foreigners in foreign countries.

And now, an analogy you, A, will appreciate. The U.S. government is like a mean, muscular attack dog. The Constitution chains that attack dog to a post. Is there any reason to think that the attack dog should be released just because the yard is outside U.S. borders? The reasons for locking up the attack dog are the same inside and outside the U.S. Unrestrained government power leads to bad results. Period. Amen.

Love,
Sammy

The Spatial Limits of the Constitution

Sen. Ron Wyden published an op-ed yesterday -- "Rights That Travel" -- about the need to broaden the protections of FISA to Americans living or traveling overseas. His argument is that the balance between fighting terrorism and protecting constitutional rights "should not be eliminated simply because an American leaves U.S. soil."

While the legal community constantly debates the questions of when and how Constitutional rights apply, the question of where they apply is just as important with regard to the scope of these constitutional prohibitions -- and it is far from settled. Much of the Constitution is structured as a limit on the powers of government, and it has generally been interpreted as granting negative rights (for the individual to enforce against government action) rather than positive rights (which the government would owe to the individual). So, if the Constitution is a limit on government power, does it limit:

- The government's power over U.S. citizens in the territory of the United States?

- The government's power over anyone legally in the territory of the United States?

- The government's power over anyone in the territory of the United States?

- The government's power over Americans (presumably citizens) no matter where they are? (This is what Sen. Wyden suggests when he writes that "in the digital age, it makes little sense that an individual's relationship with his or her government should depend on that individual's physical location.")

- The government's power when it exercises police or regulatory authority over someone no matter where they are?

- The government's power over anyone no matter where they are?

Where one's opinion lies on the spectrum has to do with several factors. One's beliefs about foreign policy and international relations matter -- while the Constitution wasn't drafted with foreigners in mind, in a post-Westphalian world where sovereignty is diminished and the U.S. has a global reach, perhaps the Constitution should follow government power wherever it goes. Also important are one's thoughts on whether the Constitution creates positive or negative rights; if you believe that the Constitution gives you rights, then it makes sense for them to follow you if you travel abroad.

The most important factor, though, is what one thinks the purpose of the Constitution is. If one sees the Constitution as a list of benefits given to certain people (citizens, residents, "U.S. persons", etc.), then the reach of Constitution extends only as far as those lucky beneficiaries. However, if one sees the Constitution as a system of necessary restraints on government, restraints that prevent its worst abuses and therefore give legitimacy to government action, then there is no reason why government power should ever come unshackled from its Constitutional responsibilities.

Re: Committing the Crime without Committing the Crime

While it's true that intent is "one of the bedrocks of American criminal law," I'm not so sure that accomplice/conspirator liability and felony murder are perversions of this "no intent, no crime" rule, as much as they are direct challenges to it. Why, exactly, should someone's intent determine whether criminal liability is appropriate?

The way I see it, subjective intent is just a somewhat effective proxy for likelihood of harm. Someone who intends to commit a harmful act is (obviously) very likely to create that harm and is punished the most severely. Someone who is acting recklessly has created a probability of harm that is lower than if they were acting intentionally, but still high enough that sanctions are enforced. Finally, someone who harms another through a freak accident isn't punished at all, because the likelihood of harm was miniscule. Viewed through this lens, intent isn't a prerequisite for a crime, but a way to measure the likely consequence of one's action.

And likelihood of harm is, like intent, a cornerstone of the law. The law punishes certain acts simply because they increased the likelihood of harm, without any regard for outcome (or intent) -- drunk driving is a crime even if you don't hit anyone or anything, and so is using a gun in a robbery (even if nobody is shot, it is still punished more heavily than an un-armed robbery). Secondary liability is justified under the same rationale, because one's participation in a criminal scheme greatly increases the likelihood of harm (even though intent for a specific crime might not exist). Not only are more people able to commit greater and more organized crimes, psychological studies have shown that people in groups are more likely to take risks and engage in extreme behaviors than those who act alone. The liability that attaches to groups is therefore appropriate, as being a member of a criminal conspiracy makes the whole enterprise that much more dangerous.

Now, in the case that the articles cites, it's true that loaning a friend a car is obviously not particularly likely to cause harm. However, loaning a friend a car for a robbery is significantly more dangerous -- even though the person loaning the car didn't know that anyone would get hurt, there was still a strong possibility that the robbery could turn violent. If the case in question is troubling, it seems that is less because his actions exposed him to criminal liability and more because his sentence (life) seems unduly harsh for his role in the crime.

The problem with sentencing these crimes is that the crime is partially based on the probability of harm, while the punishment is based on the actuality of harm; as far as liability is concerned, the victim, a la Schroedinger's Cat, is in a quantum state of both harmed and unharmed, but by the time sentencing occurs the waveform has collapsed and there either is or isn't a victim. It would seem that rather than scrapping the system of secondary liability -- which correctly assesses the dangers inherent in group crimes -- we need to take a long look at how these kinds of crimes should be punished.

High Rise Elevator Service Has Been Restored

We apparently were unknowingly trapped on the upper floors of our building for the last few minutes.

But a reassuring email just informed us that we are all now safe:

"High Rise Elevator Service Has Been Restored."

There's a metaphor in there somewhere.

Committing the Crime without Committing the Crime

Accomplice and conspirator liability is a tricky thing. One of the bedrocks of American criminal law is that you must intend to commit the crime. No intent, no crime.

It makes sense when we hold accomplices and co-conspirators liable for what they did intend to do. Accomplices intended to aid and abet the crime. Co-conspirators intended to join the conspiracy. They can be sent to jail for each of these crimes.

The trouble comes when we hold others liable for a crime committed by someone else. Particularly when the accomplice had no warning that this someone else would commit the crime. Particularly when he can be charged with murder.

If you loan a car to a friend, and you know that the car will be used in a robbery, and the borrowers then drive to the site of a robbery in your car and murder someone, you could be liable for felony murder.

Even though you weren't there. Even though you never intended to murder.

"No car, no murder," the prosecutor will say.

The felony murder rule eliminates the notion of intent altogether. You didn't have to intend to murder. It doesn't even need to be foreseeable that your actions will lead to murder. You can still be held liable if you somehow aided in the crime.

Co-conspirators can also be held liable for the actions of others. If you conspire to rob a grocery store, and in the course of that robbery, the store clerk is shot and killed by your co-conspirator, you too can be liable for the murder. Why? Because you intended to join the conspiracy, you intended to rob the store, and you knew there was a chance that someone would get killed. You took that risk.

Accomplices sentenced under the felony murder rule often did not take any of those steps. They didn't join a conspiracy. They didn't intend to rob. They loaned a friend a car.

And now they're convicted murderers.