Matthew Franck, Robert Alt, Mark R. Levin, Robby George and Gerard Bradley had a lively discussion last week regarding the constitutional basis for judicial review on the National Review's Bench Memos blog. Though the participants seem to be a bit nit-picky at times, their points are well-considered and thorough.

The major issue, of course, is the natural conflict between (1) our dislike of "activist judges legislating from the bench" and (2) the thought that, if the courts can't do it, who else will? The Federalists and Anti-Federalists alike agreed that the legislature in itself could not have the final word. After all--constitutional review exists because we have decided that, in favor of a broader national policy, we will not allow some laws to exist simply because a majority of the people (or more accurately a majority of representatives and senators) wish them to be enacted.

From The Least Dangerous Branch:

“Mr. Roosevelt, as is well known, failed to pack the Court.… But time unpacked it, and… [i]n a few years they cleaned up after the old Court. A great many measures which almost everyone would concede today, denoted social and economic progress had been laid beside the Due Process and Equal Protection Clauses, or beside the Commerce Clause, and had been struck down because they were found to be round where they should have been square.” (p. 90)

Published in 1962, I’m quite skeptical that “almost everyone” actually felt the way Bickel did at the time. Even Lochner was less than 60 years old. Pro-regulatory chestnuts like Nebbia and West Coast Hotel were a mere 28 and 25 years old, respectively. That’s less than Roe v. Wade’s current 32-year age, but Roe is still commonly discussed and fairly contentious.

Bickel can be forgiven his hyperbolic “almost everyone” as literary technique, but my belief is that plenty of people actually did believe this was true, simply because Bickel (and others) said it. Learning from Bickel et al, they took these cases to be unassailable. This happens today with Roe, but if it’s truly an unassailable outcome, why do so many fear it will be overturned? What I’m suggesting then, is that Bickel and others, in the late 50s and 60s, turned anti-Lochnerism and regulation, generally, into the jurisprudential equivalent of Roe today.

Next in the series: more on the connection between Roe and Lochner.

Apparently, few questions can spark as much discussion among law professors (and fellow law prof aspirants) as those of the sartorial sort. This fall, my final law school semester, will also be my first semester of full-fledged teaching of a course (here, Principles of Macroeconomics), so I suppose I should pay close attention to this discussion.

It all started with Ethan Leib's query:

I'm sick of wearing sportcoats to look professorial on the days I teach. Anyone think it's totally inappropriate to wear jeans?

Like Prof. Yin, I don't own a pair of jeans, as 01 July marked 6 years jean-free for me, so this isn't a problem . And I really wouldn't think of wearing shorts to class (as the prof). But Prof. Althouse, apparently shocked by Yin (who wears shorts to law school, though not to teach in), thinks they're always an inappropriate choice for men. Oops.

Least Dangerous Branch: The Supreme Court at the Bar of Politics

I recently re-read Alexander Bickel's The Least Dangerous Branch. It is frequently referenced but actually read much less so. Bickel coined the phrase "the countermajoritarian difficulty" in this and other works. The phrase is used incessantly even today.

This will be the first in a series of posts discussing the book, its contemporaries, and its influence. I was truly amazed, reading the book for the first time since first year constitutional law, at how much of today's constitutional dialogue hearkens back to Bickel, and even uses his language in many instances. Bickel first published the book in 1962.

I am thoroughly convinced that the late 1950s and 1960s marked the most dramatic period for (and shift in) American jurisprudence. This was the era apologia for the New Deal and the Court that remained afterwards, still found in scholarship today. It was also a time of great institutional change in the legal profession and education, enabling this movement to instantiate itself in students (especially at Yale, Bickel’s home) that would become the next generation of influential scholars-- those still around today.

I don't mean to deify Bickel, or to attack him. But I think this book can reasonably be seen (and is by many of all political stripes) as a bulwark of modern Supreme Court thought. Bickel most definitely raises a number of original and thoughtful points. My thought, however, is that too many people actually did deify him and were too quick to embrace what he said. Some his major ideas have been critically discussed at length in the literature. But what worries me is the embrace of what Bickel and his contemporaries subtly interjected throughout their work: revisionist history and hyperbole that disparaged and marginalized anyone that did not worship at the altar of the New Deal, including those that were generally approving, yet not so smitten.

But first a few book review-type comments. It's dreadfully boring. I hesitate to go so far as to say it's poorly written, but it drags on forever in sometimes terribly awkward prose. The book has been so profoundly influential (you see countless cites in many con law casebooks and articles even today) and thus should be read by anybody that wants to really understand the origins of modern theories of the Supreme Court, but I'm not sure how it ever got to be so popular being as dull as it is.

Notwithstanding its inability to draw in the reader, though, the book is pretty well organized, starting with the general, common justification for the establishment of judicial review, moving on to specific aspects of the Court's power and lack thereof, ending up with a detailed discussion in the context of the School Segregation Cases (Brown v. Board of Education and its companions). These cases are also referred to, in much less detail, throughout the book.

The next post will discuss Bickel's depiction of the New Deal Court.

The first comment to this Juan Non-Volokh post (inviting comments on the usefulness of the third year of law school) sums up the problem:

However, as a practicing attorney, I'm embarrassed to admit that I like the fact that there are so many barriers to entry into the legal services market, like expensive tuition and a difficult first year. If an extra year at $15K or $20K keeps a lot of poor but smart people out of the profession, so much the better.

Back in January, I posted on the lack of respect (particularly titular) afforded the JD, and (only half-jokingly) insisted that JDs should be commonly addressed as "Doctor" (at least as much as PhDs). I think that the JD serves a distinct academic purpose, yet one not fully realized by most students, who fetishize lucrative jobs that (statistically) most will loathe within a few months actual employment. The effects BIGLAW fetish manifests, curricularly, in students as an obsession with taking the "right" and "practical" courses. While these can prove useful, their actual value is sorely limited.

There's an extremely high utility to each class in the first year, where one truly learns to "think like a lawyer". But, once assimilated into the lawyering culture, additional coursework in "substantive" areas is necessarily artificial and, as far too many 3Ls can attest to, extremely banal. One is probably better served by taking non-doctrinal courses, such as seminars, that can actually shape and develop the way one thinks about the law, instead of spoon-feeding tiny slivers of the vast amount of "black letter" law a practicing attorney should know in their field. Practice admission ought to have the most minimal, if any, formal education requirements. (I hesitate to say insist on none because there's also ample reason to doubt that current bar exams are a proper barrier to entry as well, and I think that some minimum competency should be demonstrated through a formal institution, be it educational or by examination.)

Again, I think the JD serves a useful purpose, but not as an appropriate minimal qualification to enter into the practice of law. A modified business school approach to law degree-granting would be a vast improvement (the MBA as a graduate professional degree, the longer and curricularly different PhD as the academic degree; two different law degrees doesn't seem unreasonable). A several-tiered hierarchy of law school degrees seems especially promising to me, perhaps to award the LLB after the first year (and allow admission to the bar; people often seem to forget the, in the U.S., the LLB was generally a second degree, even though baccalaureate), the LLM after the second (in specific concentrations), the JD after the third, perhaps even with the addition of a dissertation requirement. Of course, this plan would lead to the elimination of SJDs/JSDs, but they're quite uncommon among U.S.-trained lawyers as it is. And my plan would also eliminate the exceedingly silly master's degree beyond the doctorate.

It seems likely. Perhaps he was trying to avoid being in New York as things heat up before the mayoral primaries on 13 September, especially after the excitement he stirred up a few months ago.

Bob Kerrey is a fairly interesting read, too - and especially among politicians' autobiographies. I read When I Was a Young Man shortly after starting at the New School. Not the world's most engaging book, but definitely worth a read, and includes surprisingly frank (though not completely satisfying) discussion of Vietnam.

When I Was a Young Man: A Memoir by Bob Kerrey

Sandy Peart (Baldwin Wallace econ dept.) emailed me that she has started a new blog on the history of economic thought: Adam Smith Lives! Her first post discusses "the general equilibrium point [for teaching HET]: If ideas, like markets, are interrelated, then what we don’t read has implications for our understanding (or lack of) of what we do read."

I've long thought that Condoleeza Rice is the Republican Party's best choice for a 2008 candidate, for both substantive and less-substantive reasons. And this Althouse post shows that I must not be the only one (just over 30% of Iowa Republicans polled agree).

Although I generally believe that predictions of both candidates and appointees are pretty fruitless, as some degree of a dark horse seems to win out so often, I also believe 2008 is shaping up to be a bit different. Hillary Clinton's presidential aspirations are both shockingly transparent and extraordinarily popular, such that she could easily get the DNC nomination. So, in addition to her substantive merit, what better candidate than Rice to run against? (I've also long believed that the first woman to get the Democratic or Republican nomination will almost undoubtedly win.)

Montmorency: Thief, Liar, Gentleman?

Children's author Eleanor Updale was at the Gloucester Conference, to discuss her award-winning books, the Montmorency series. I just finished the first, and it's terrific. Written for children, they're surprisingly complex and very interesting. They are not all available in the U.S. yet, but hopefully they will be catching on here. A good read, for children and adults alike.

(Via TaxProf Blog)A tax song: Taxes Are Best When You Pay Nothing At All

Today's WSJ had a great opinion piece: "As Lawyers Invade Accounting, Clarity Flees".

The gist:

No one can say [New York Attorney General Eliot Spitzer] isn't smart. Corporate accounting, contrary to popular belief, is chock-full of judgment calls. It's a happy hunting ground for a prosecutor looking for decisions he can say were intended to mislead investors and might thus constitute criminal fraud. If an admiring press rewards him with a big headline, who's to know, given the recent history of provable fraud at Enron and Tyco? ...

Accountants' views on such matters may differ widely, but one or the other conclusion does not necessarily imply intent to defraud. Indeed, accounting is a profession well known among its insiders for its uncertainties and ambiguities. When the outside auditors of American companies sign off on a financial report, they don't claim infallibility. They say instead that their inspection conformed with generally accepted accounting principles, better known as GAAP.

I've lost respect for many a lawyer, law professor, and economist when they start talking and writing about accounting issues. And even those with accounting degrees, and even some Ph.D.'d accounting professors that have never practiced and are not licensed, often make thoroughly ridiculous statements. Corporate accounting isn't the set of cut-and-dried rules that so many believe, or pretend, it is; it can get murky and auditing murkier still.

Similar to GAAP is GAAS, Generally Accepted Auditing Standards. The standards are full of the underlying rule for almost every aspect of an audit: "auditor judgment". That's part of the standards and perhaps the most important aspect of an audit. GAAP is hardly any more concrete in its initial guidance.

There's ample room to criticize the state of the standards, but from what I've seen and heard in the news over the last few years, there's little reason to jump to the conclusion that the alleged corporate frauds and scandals have been a result of ignoring the standards.

The astute reader might have thought this: "The standards that corporate accountants and auditors are supposed to adhere to are only 'generally accepted' (it's in the name!)?" That's right. It's nothing more than an amalgam of relevant literature, some of which is more important than others, but theoretically infinite in size. The so-called "GAAP hierarchy" is generally said to have four levels, meriting vastly different degrees of deference. The problem is that the ones that get the most deference, such as Financial Accounting Standards Board (FASB) statements, are woefully unhelpful in accounting for the types of transactions that comprise many of the acts so often denominated as scandalous. And the lower end of the GAAP hierarchy amounts to anything in print (hence the very low deference), but is often where the "answers" to the questions of accounting for complex transactions come from. That's why disagreement, absent fraud, is common, even when it makes a huge monetary difference.

Spitzer, et al, are causing a lot of trouble and expense for a lot of people, including the shareholders, without even mentioning the real problem: there is no singular accepted or mandated "right" way to account for these transactions. It makes you wonder who's really trying to take advantage of the public, doesn't it?

Hanno Kaiser has a nice post over at Law & Society about today's filing of suit by the NYCLU. Kaiser asks if people (especially New Yorkers) are really docile enough blindly go along? Well... yes. They don't mean to be, but they're influenced by the world around them and think that such a minor imposition as a bag search isn't such a bad idea. And certainly nobody thinks of the consequences.

So what are the consequences? Kaiser says:

The subway search program is yet another step towards a culture of permission, a culture in which basic rights (such as the right to travel freely within a city) are conditioned upon obtaining prior approval from whatever authority claims to have such powers of pre-approval.

Exactly right. The small transition made in the last few weeks is that instead of paying customers having a right to travel on city transport, they now have the right only subject to NYPD approval. In a sense, we no longer have a right to ride the subway, but merely a license to. Certainly plenty of people in days past have been detained before a subway ride, but not without some cause. But this isn't the case any longer. Rights give way to licensing, licensing to tougher licensing, tougher licensing to prohibition.

Of course, I'm not one to begrudge "reasonable" searches; the Forth Amendment only protects against "unreasonable searches". I would even be willing to consider as (at least potentially) reasonable searches based on profiling that includes some consideration of race. But how can the current searches possibly be characterized as reasonable? They can easily be avoided - there is ample warning and, if selected, one is allowed to walk away. The only way these searches could logically be rationally related to the security interest is if those with illicit materials are presumed to be irrational, i.e., to assume that they would be so stupid as to knowingly walk right into their own capture.

I generally walk everywhere in NY, including between home and Cardozo, but tonight I rode the subway to avoid the light rain. It was the first time I rode since the searching began and, had I remembered it, I probably would've decided to get home a little wet instead. Luckily, I neither saw nor experienced a search on the subway to serfdom.

Earlier today, I stumbled onto this Wikipedia entry, on Cardozo Law School. It will no doubt eventually be changed, but here's how it reads currently (emphasis supplied):

Since its founding in 1976 by Yeshiva University, the Benjamin N. Cardozo School of Law has gained a national reputation for a top-caliber faculty and an innovative academic program.

Also of note, Cardozo used to have one of the lowest grading curves in New York City law schools. In Autumn 2005, the school will shift its curve from a B to a B+, thus helping everyone currently enrolled and about to be enrolled look more enticing to employers. Sadly, this helps no Cardozo alum currently in the job market.

Located on lower Fifth Avenue in New York’s Greenwich Village, Cardozo offers approximately 1,000 J.D. and LL.M. candidates a comprehensive legal education in the midst of the world’s capital of law, business, finance, and culture.

The school is known for strong programs in intellectual property and entertainment law; it's also the home of Barry Scheck's Innocence Project, a program that uses DNA testing to exonerate the wrongfully-convicted.

Perhaps influenced (or written) by an embittered Cardozo alum? Nothing is factually inaccurate, including the bit about the changing curve, but doesn't this seem a little strange for an encyclopedia entry?

I originally just glanced at this NY Times article after reading this post. But after a friend made mention of the fiasco and I looked again, I noticed that it's taking place exactly where I used to live, in the very town where I purchased my first home.

So what's going on? Well:

Many states, including Georgia, have recently enacted laws restricting the sale of common cold medicines like Sudafed, and nationwide, the police are telling merchants to be suspicious of sales of charcoal, coffee filters, aluminum foil and Kitty Litter.

And, at least from the picture the NY Times paints, they seem to be targeting Indian store clerks an owners. The article says this (and, sadly, I have heard it numerous times myself):

This corner of the state is still largely white; Indians began moving here about 10 years ago, buying hotels and then convenience stores, and some whites still say, mistakenly, that "Patel" means "hotel" in Hindi.

And the "offense" is nothing to be taken lightly:

David Nahmias, the United States attorney for the Northern District of Georgia, said the evidence showed that the clerks knew that the informants posing as customers planned to make drugs. Federal law makes it illegal to sell products knowing, or with reason to believe, that they will be used to produce drugs. In these cases, lawyers say, defendants face up to 20 years in prison and $250,000 in fines. ...

"While those people may not think they're causing any harm, the harm they cause is tremendous," Mr. Nahmias said. "We really wanted to send the message that if you get into that line of business, selling products that you know are going to be used to make meth, you're going to go to prison."

They've jailed people that were not even the proper suspect. And they are imputing knowledge of drug slang to low-wage workers and immigrant shopkeepers:

Investigators footnoted court papers to explain that the clue the informants dropped most often - that they were doing "a cook" - is a "common term" meth makers use. Lawyers argue that if the courts could not be expected to understand what this meant, neither could immigrants with a limited grasp of English.

Now, during my undergraduate years in the area, I worked full-time in a nearby grocery store. And if anybody came to ask where, say, lighter fluid, aluminum foil, and over the counter medicines were, I'd of thought nothing of it and sent them down the correct aisles. Why should I know anything about what's involved in making methamphetamine? Of presume that these everyday items are being purchased for that reason?

And I have no doubts that the cashiers and baggers working for me would have done the same. But I also suspect that some of them would have done so knowingly, and for friends. (Of course, the would have also likely helped their friends just steal the stuff, too, but that's beside the point.) But do you see the police going after the white kids in the chain supermarket that sell this stuff? Of course not. But do many of them live in or next door to the homes that are shown on the local news after a big bust? Yep.

This is a dangerous game to play. That's not to minimize the havoc that drug use can wreak on the lives of the user and thier family and friends, or the danger of the meth labs themselves. But laws and enforcement like this only wreak additional havoc on people that are trying to live a peaceful life free of drugs... and government oppression like false imprisonment.

Where to begin... such a bad movie. Lots of bad things, especially the fact that the writer plays three characters, including and old man and an old woman. I've never understood the humor in not having old people play old people, but whatever. I also have issues about to how we're supposed to see the "mad black woman"'s "strength" in physically abusing, including nearly drowning, her husband that is at the time quadriplegic. That takes a whole lot of courage, no?

Anyway, the most disturbing part of all - running throughout the film - is the gross misrepresentation of family law. The whole premise is that her lawyer (and huge jerk of a) husband made her sign a prenuptial agreement, thus is able to kick her out of the house with no place to go, stop paying for her mother's care, and give her no money. Not even her own lawyer (and cousin) tells her that this is not an open and shut case.

Prenuptial agreements of the kind she has aren't worth the paper they're written on. There's every reason to believe that she didn't have any legal representation when entering the agreement, or if she did it was clearly inadequate. Especially with her husband being an attorney, any court would be highly suspect of her waiving all rights to the property. And many states specifically prohibit the designation of who gets to live in the marital home upon separation.

Her husband would be required to help her maintain the quality of life she had become accustomed to over 18 years of marriage, especially considering that she has no skills with which to earn a living beyond entry-level unskilled labor positions. The fact that they were married for 18 years is also of great importance. Good prenuptials frequently escalate the amount of property retained by the poorer spouse based on the length of the marriage. Among other reasons, this is done to increase the probability of the agreement being upheld.

So there are plenty of reasons to dislike Diary of a Mad Black Woman, and especially its depiction of law. Other misrepresentations in movies present a more complex question, such as Dodgeball, a fine flick... until you get to the terrible ending.

In light of everything being said about Roberts and his alleged Federalist Society affiliation, I found the 2005 National Lawyers Convention brochure in yesterday's mail especially humourous. Among the list of speakers:

Akhil Reed Amar

Walter Dellinger (and here)

Nadine Strossen (and here)

Cass Sunstein

Now these are all interesting speakers, but they don't exactly round out my list of radical conservatives. And they certainly don't turn down the invites; everybody knows that the Federalist Society has the best debates around, so why all the fuss?

BAR CERTIFICATE. The Certificate evidencing admission to the Bar of this Court contains the following words: “. . . in the year of our Lord, two thousand.” An alternate Certificate is available that omits the underlined
words. If you want an alternate Certificate, check the block on the personal statement.