The Pragmatist

What one learns in law school

"A groomed and nonodiferous body is a social must for anyone who wants friends and admirers."

- Nancy Sherman, Stoic Warriors, 31 (2005).

Admin. arg.

A couple of points, to kind of explain why I was sparring sporadically with Judge Silberman in Administrative Law on Tuesday. The most important point is, to my mind, 3:  In practice, the NLRB wasn't applying the supposed presumptions to board-supervised elections, although it had stated that the standard for all was the same.

1. The argument about whether doubt means uncertainty or disbelief is irrelevant. It just doesn’t matter which it is: It was just as against substantial evidence to say that the company couldn’t have reasonably believed that there wasn’t support as to say that the company couldn’t have reasonably been uncertain that there was support. I mean, really, can you see any difference on the facts? The evidence indicated non-support, not doubt of support.

2. If Justice Breyer is correctly characterizing the NLRB’s opinions, then the NLRB had indeed established the evidentiary presumptions. They don’t have to say “We do hereby ordain and decree this day that henceforth there shall be an evidentiary presumption, etc.” It’s enough for them to recognize it in their reasoning, which they apparently did. So Scalia’s position fails.

3. Consider what effect all the presumptions would have: You can’t rely on statements volunteered in job interviews. You can’t rely on reports of what other people think. But it seems that you could find out that there isn’t support by asking employees--but wait, that’s polling, the very practice prohibited! So the only way that you can have a reasonable doubt is if a majority of the employees sua sponte come to you and tell you that they don’t support the union. This is ridiculous, and bears no resemblance at all to the supposed standard of reasonable doubt. Indeed, in effect it makes it impossible for a company to attack a union for lack of support. This would be a violation of the arbitrary and capricious standard--which is why, I think, the judge thought my remarks were changing the subject.

But there’s a further twist that is, I think, even nastier: In practice, as Judge Silberman noted, the NLRB wouldn’t actually enforce these presumptions in a board-supervised election. Isn’t this the real problem here? The Board has completely misrepresented their actual doctrine: You need reasonable doubt for board-supervised elections, but polling or dissolution requires something nearly impossible. This, it seems to me, is much more problematic than what Scalia objects to in the presumptions. And it doesn't sound in A&C, but in due process--so it is actually on point.

Tasty food!

Hot cocoa: D&D Bensdorp cocoa powder, turbinado sugar, fresh mint, and hot water.

I've often wondered why it is nearly impossible to find decent hot cocoa. I've occasionally had good hot chocolate out--though that is usually made offensively sweet--but never good hot cocoa. Not a serious problem, though, as it's exceptionally easy to make at home. The most important thing to do, if one wants a really balanced, rich cup, is to first make a paste of the cocoa powder with boiling water. This morning I was in a bit of a rush, so I didn't, but just mashed everything together with some hot water. Still quite deliciously chocolaty and minty.

Breakfast bread: Raisin-walnut loaf (MM).

At least this time they actually baked the bread enough--for a while Marvelous left the crust golden! Tsk-tsk. Besides that a well-developed crust provides tasty toasty flavors, a loaf with too light a crust keeps fresh for a vastly shorter time. The quality of this bread took a sharp decline shortly after Marvelous outsourced their baking operations to Uptown--becoming a tiny neutronium bread that would be quite deadly thrown--but it has since crept up a good bit and now has a much more decent

crumb.

Cheese sandwich: Baguette (Breadline), Chimay Grand Cru (D&D), old Gouda (D&D), Sardo Blanco (WF).

Breadline baguettes are the best bread that I have had in DC, and are, quite possibly, the best baguettes on the East Coast. (Citronelle--the finest restaurant in DC--serves them; Breadline's baker is Thomas Keller's (!) bread consultant.) Truly fine bread, with marvelous development of flavor, impeccable crumb, and a crispy and chewy crust. It is delicious just with some butter (indeed, I have made meals just of that).

But a cheese sandwich is yet tastier than a buttered baguette. This cheese sandwich even more so. The cheeses I chose have a wide range of flavors--the explosions of taste go across one's whole mouth. Chimay is an especially fun cheese. It's a cows-milk, washed-rind cheese made by the Trappist monks of Chimay. These monks are known for their ale, which is, indeed, the solution in which Chimay is soaked. The various micro-organisms and chemical actions produce a beautiful and redolent outer skin. The cheese smells rather like a pile of wet, unwashed gym socks and jockstraps. It tastes smooth, rich, and mild.

The Gouda that I have is rather more suspect. It's a bit past its prime and gone quite hard. Some interesting blue notes (without much ammonia) have started to form. I'm somewhat tempted to put some black mold onto the cheese and see what happens, but it's sufficiently tasty that it probably won't last that long. (You may not realize it, but home affinage of this sort is actually fairly easy, if a bit dicey. All you do is scrape some mold, say, out of a blue cheese, and you can let it take over some cheddar. Note, please, that I disclaim any liability if you let something slimy take over your cheddar!)

Tuna sandwich: Baguette (Breadline), high-fat cultured butter (D&D), Spanish tuna packed in olive oil (D&D). More on tuna fish later, as I'm presently tasting several different tunas. (And probably diminishing my lifespan with all that mercury.)

Abbreviations: MM = Marvelous Market; D&D = Dean & Deluca; WF = Whole Foods.

Luban on cert in Hamdan

Professor David Luban (Georgetown Law; visiting presently at Stanford Law), as erudite and fun-to-read as usual, argues, at Balkinization, for the importance of the Court granting cert in Hamdan.

Professor Luban's argument seems to be that to deny cert is to deny the importance of the issue of "the reach of human rights treaties, and the methods for interpreting them[.]" Perhaps so. But I'm not sure that the Supreme Court would even reach those questions. By my readings of the briefs, the questions about the interpretation of Common Article 3 would require the favorable resolution of a number of antecedent questions about the enforceability of treaties in habeas proceedings. And those questions would require the antecedent result that right now is the right time for an appeal. If the Court thinks that at least one of these two categories of questions will come out in favor of the United States, however important they might think the Geneva and treaty interpretation questions are, it would be pointless to take up Hamdan.

So, all in all, I don't think that denying cert in Hamdan means that much (though I think that the D.C. Circuit really deserves reversal on all of the questions). And granting cert very likely won't work out terribly well for those of us (me, for one) who wish to have interesting new cases on treaty interpretation to read.

The politics of the Miers nomination

There are a number of forces at work. I think that it would be fairly easy to defeat Miers's nomination: The confluence of FEMA/Brown/patronage and this instance of cronyism would make it easy for a substantial coalition to unite against Miers. She's frighteningly a blank slate. And she is fundamentally a mediocrity. So she is defeatable. But whether the Democrats would think it desirable to defeat her is another question.

One nomination: If you just think in terms of one nomination, then of course defeating the President's choice is a victory for the opposition.

One appointment: But if you think in terms of one appointment, then defeating Miers may not be so good. The attack would have to be based on Miers's lack of qualifications. The President's easy rejoinder is to strike back with a Luttig: Someone phenomenally qualified, but so strongly conservative that he would have been very difficult on a first try. The Democrats would likely have expended sufficient political energy that they would not be able to oppose a second nomination (especially on different grounds from their opposition to the first). (Compare Rehnquist's elevation paired with Scalia's nomination.) This would likely then be a loss for the Democrats.

One court: But really replacing Justice O'Connor isn't going to do that much to affect the balance of the court. A Republican choosing the successor for Jutice Stevens or Justice Ginsburg will, a lot. So the next presidential election is, most likely, crucial. On this view, what may be most important are the collateral consequences of this nomination fight. It may be that the best thing for the Democrats at present would be to knock Miers out: They could make the confirmation hearings an extended criticism of Bush's cronyist tendencies. They could try to make the vote to reject Miers an indictment of Bush. This might give them a much needed victory and help them put the momentum of politics firmly on their side.

Re Miers: Not brilliant should mean not on the Court

Harriet Miers shouldn't have been nominated and shouldn't be confirmed.  She didn't do terrifically at a great school, isn't a well-regarded scholar, isn't at the peak of the legal profession, isn't a reknowned jurist, or anything. To be entirely frank, there's no evidence that she'd make a significantly better justice than I would right now. She hasn't done a single thing special.

An unpleasant thing about someone highly competent, but not superb, being nominated for the Supreme Court is that there are dozens of lawyers and judges who are superb and deserve to be nominated. Desert, I think, measured in what Cass Sunstein calls technocratic terms, is what should dictate such an appointment. I am lucky enough to be taking a course this term from a jurist who deserved a Court appointment. And yet he is not on the Court, and a relative mediocrity will soon be considered by the Senate. (Indeed, my feelings on this matter extend even to Chief Justice Roberts. He is unquestionably brilliant. But there are, just as unquestionably, better.) There is, very sadly, no prospect of the two most brilliant (and,  admittedly, wacky) conservative jurists, Posner and Kozinski, being nominated to the Court anytime at all. And now, very sadly, none of the top three or four hundred conservative jurists has been picked. And all this is made even more unpleasant by the fact that the mediocrity in question seems to have been picked only because she is a crony (see Professor Barnett's interesting op-ed).

I will note that some have defended Miers as not incompetent, or even not mediocre. I certainly agree that she's not either of these in comparison with other lawyers: She's clearly smart and a hard-worker. But she hasn't done anything exceptional (Texas Lottery Commission?). And she's assuredly not brilliant. (And I'm completely uninterested in defenses by past practice. She really doesn't look that good in comparison even to some of the worse past Court appointments. And those that she doesn't look too bad next to shouldn't have been appointed.)

Update: "Asked by a reporter if [Miers] was "the most qualified" person he could find in the country, [President Bush] said, 'Yes, otherwise I would not have' named her." So in the eyes of the most brilliant man (in Miers's estimation), Miers is the most qualified. What a wonderful world Bush and Miers must live in!

Disgraceful. This is disgusting and enormously disrespectful.

Amazon.com: Confirmation

I have Amazon.com set up to remember my login info.If I want to order a few thousand dollars worth of books, I can just click and they take my money.  If I want to see what parts of an order have been shipped, I have to confirm my password. Can anyone explain this? (This isn't rhetorical. And the answer "Amazon just wants your money" isn't really helpful without more.)

What's the argument? Where has it gone?

I am working on something at the moment. And on a crucial point, I cannot make out what the argument is that I am trying to respond to. I've tried so many different ways to make the point so that I can respond to it. At one moment it is assumed, at another--what exactly?

Clarity, clarity! Not coming anytime soon.

Tax Lawyer; waitlist

1. The new law journals suite in the library's basement is really awesome. Bright, spacious, with its own Westlaw printer and vast quantities of office supplies. It's a great place to work. There are also lockers, which are to be distributed, as I understand it, tomorrow. With any luck, I'll be able to replace my extremely sucky parking level mini-lockers. Better still, I'll be able to use my locker as a never-closing carrel. The only way Georgetown could make the journal suite better would be to permit library books to be brought down there without check-out (i.e., make it part of the library).

2. The Registrar is rather late in releasing the waitlist lottery results for today. There's a notice on the results page that promises posting before noon. Yep.

3. Substantive posts may come sometime soon. I'm somewhat overwhelmed with juggling four articles (one of which is secret for now), course reading, and a variety of minor administrative junk (e.g., lockers). And soon I'll have bluebooking for TTL, note-writing for TTL, and whatever writing components various courses have. So my fingers may get tired.

Journal: The Tax Lawyer

I have written on to The Tax Lawyer. This has, I suppose, the distinct disadvantage of being a tax journal--even should I enjoy tax, this seems like a significant social disadvantage ("Tax law? Fascinating. Oh, I think I see someone I must speak to over there!"). There is, perhaps, a moral advantage. As I understand it, the ABA Tax Section selects the (non-student) articles for The Tax Lawyer and the students edit them. I find few things in law school quite so morally disgusting as the prevalence of student-run journals. In any event, I look forward a great deal to starting work for the journal.

(Despite my stereotypical disparagment of tax law, from what I've seen, it's fairly compelling.)

The poverty of the past, or, why history is so good for one's sense of superiority

That in the past we were coming to know more at a piece than today, Nietzsche says, "is the argument for the deprecation of the modern spirit . . . [but] more spirit, discipline and scientific imagination is employed in the most insignificant invention nowadays than the sum total available in whole eras of the past." Nietzsche, Daybreak, I.36.

Look at the past and you can see so many arguments. Look in the right places (e.g., Hume) and you can see so much sophistication.  And yet so very little. Even the blessed Hume--Saint Hume, patron of philosophers, as his fanboys might put it--does not see so many problems that are so obvious. Confusions of thinking plague him so often. Charity is not enough. Pity and compassion perhaps would be enough.[1] Even Quine, from so near, couldn't give an argument in his Two Dogmas, or at least anything we would think an argument. A scholar of Nietzsche today knows better what Nietzsche was arguing than ever could Nietzsche.

We do not stand on the shoulders of giants. Instead, a pile of corpses. Killed by those who rest on top of them. Embalmed. Mostly. How can it be that I, so young, I, only one year in law school (a place  for mediocre argument, mostly) can see so much wrong?

I was reading something quickly (perhaps it was a preface to Kaufmann's account of Nietzsche) and saw it noted that first comes criticizing, then comes understanding, and then, perhaps, giving an account of a view. What were Hume's views on responsibility? It's obvious that whatever they were, they are vastly less sophisticated than whatever I think. Possibly they are more correct. Nonetheless less sophisticated. For me to give an account of them without being a fool or calling Hume one, I must take his result and what few steps there are and take into account each objection. I then must call this view Hume's. Why? you ask: Not because it pleasantly warms my feet to deny myself, but so that I seem justified and kind, because it will always be that my arguments will be patently too unsophisticated.

[1] Consider Jules Coleman's approach to Dworkin in, e.g., The Practice of Principle. Coleman's charity is so grand that I pity its recipient.

Anonymity, a limited defense

It's fairly obvious that I don't share Professor Leiter's views about the perniciousness of anonymity. I can't afford the time to be systematic, as that would take, I'm afraid, so much more time than I could possibly have. Here are a few observations, at least:

The reason that I and, I suspect, most other bloggers post argumentative pieces is to be part of a discourse of ideas. In considering ideas in the epistemically optimal state of affairs, we wouldn't consider who is propounding the ideas. Facts about an author don't have any necessary connection to the quality of the idea. But we are certainly not in any optimal state of affairs. We do not have the time or the capacities to consider every propounded fact and argument from personal knowledge and reasoning. So knowledge of who is stating a proposition may play at least two valuable roles: It may inform us of the likely correctness of an argument by permitting us to know the opinions of others as to some person's capabilities (this is, e.g. and inter alia, why I note institutional affiliations). Or it may inform us of the credibility of the person's representations of empirical facts. An anonymous pamphleteer thus loses all these benefits; a pseudonymous blogger, like Juan Non-Volokh, can take advantage of them, but only insofar as his pseudonymous work confers those benefits. These two items which are often losses from anonymity. They needn't always be; if someone has extraordinarily low credibility, the credence which we give to the average anonymous writer may be greater. (This has been, I think, sometimes the chief value for political writers. The value of Publius, behind whom hid Madison, Hamilton, and Jay, was, I think, mainly that arguments, by virtue of coming from Publius, a relative neutral, would be given more credence by partisans of the opposing position than if spoken by federalists.) There doesn't seem to be any reason to expose those who use anonymity to avoid ad hominem attacks on ideas (surely we like better ideas than worse ones; such writers do even those prejudiced against them a favor by their anonymity); there's probably reason to expose those who use anonymity to avoid losing credibility in the face of a record of fraud.

There are, of course, more benefits to anonymity than cloaking disreputability.  Anonymity may provide a shield from government or social sanction. We needn't worry (much) about government sanction here and now. Social sanction is a more likely worry. Anonymity may be necessary for the propounder of extreme positions so that she is not ostracized. So too may anonymity be desirable for the merchant in arsenic-laced hapenny half-truths. This use of anonymity is particularly concerning. There are few ways of enforcing certain norms which are of the utmost importance; attempts at evasion by anonymity may often deserve to be foiled.

There is another respect in which anonymity may be useful, but wrong: This is where anonymity is used to attack personal character in such a manner that, in ordinary discourse, we would like for the speaker be a paragon of virtue, but the anonymous writer is not. Whether we are right to so constrain certain sorts of criticism is a contested question, which I don't mean to tackle. If we are right, then there is good reason to expose those who use blogging for such purposes.

Some may be anonymous to conceal the fact of their blogging. This is common for those who, e.g., blog on company time, or who, by their positions, might be expected to refrain from blogging. There doesn't seem to be any point in revealing the identities of people whose use of anonymity is for this purpose: Their crimes are only against their obligations to whomever they conceal their blogging from.

All this is rather summary, I'm afraid. And I certainly don't have the inclination to address all this to Juan Non-Volokh, the case which inspired this. Perhaps, though, this will help to clarify thinking on these points.

(I'm anonymous, in my fashion, for the last sort of reason. What I do not want known is the fact of my blogging; but I only care that it not be known to certain people (none of whom would be interested in the least in my arguments). Given the ease of searching, I could not maintain obscurity easily were my name linked with this blog. I do my best to say nothing that I would not say with my name attached or to a person's face. I don't think that anything I've said here is outside this constraint. Indeed, I'm rather more temperate here than I was in college or am presently in "real life".)

The tribulations of Prof. Leiter; comments

Professor Brian Leiter (University of Texas-Austin - Law and Philosophy), of Leiter Reports, has been sadly under attack lately. The worst of it began with a spat between him and Juan Non-Volokh (a pseudonym), of the Volokh Conspiracy. Non-Volokh read a post of Leiter's about the cowardice of academics not just uncharitably but very badly. Leiter was understandably upset; he responded and demolished Non-Volokh's misreadings. Somewhat less creditably, I think, he stated that he planned to reveal Non-Volokh's secret identity. He relented. (You can find links to the various gore in Leiter's latest post.)

 

Now, the Non-Volokh incident was hardly the start of Leiter-hatred. When Leiter ventures into the more political on his blog, his tone is brusque and dismissive. (More seriously, he's sometimes too lax about what are easy questions.[1]) So Leiter's tone and methods have pissed people off for a while; certainly he's been the subject of some unpleasant comments in the past. But the latest spate of attacks against him has been truly unpleasant.

 

Leiter has now responded. He's noted four of his most unpleasant attackers--Robert Schwartz, Kneave Riggall, David Nieporent, and Harry Niska--along with their affiliations. His criticism of each is sharp and apt. My only quibble is that, on observation, it's never too early in the day to be drunk. He then criticizes Professor Eugene Volokh (UCLA - Law) for a brief post in which Volokh asked his readers to comment on whether Leiter's plan to unmask Non-Volokh was "good behavior". (Volokh's attitude rather reminds me of the fairly common horror device of a motherly spirit, who, while speaking gently, unleashes all manner of unpleasantness; see Angel, "Room W/A Vu" for a vaguely similar character.) Predictably, rather than being a symposium on the values of anonymity and the propriety of unmasking the anonymous, it became a forum on how much one can detest Brian Leiter.

 

Leiter, understandably, wonders why Volokh would unleash such furious stupidity. I think that speculation about whether he was put off earlier criticism by Leiter is offensive and unnecessary. It seems just as likely that Volokh felt his obligations toward and perogatives with Non-Volokh were being ripped by Leiter's proposed unveiling. But more importantly, talk of motives obscures effects. Whyever Volokh wanted to see Leiter savaged, he did it.

 

But, ah, you might say, Volokh did nothing but open comments. The commenters did the rest. Perhaps so, though I think not; Volokh's comments were an invitation. But anyways, Volokh has a responsibility to his readers. There's no value in diatribe, no value in mere assertion, no value in ad hominems. What's the point of providing a forum for stupidity and argumentative indolence? It is well and good to say that one needn't view comments if one likes. But the cost of permitting vicious comments is that they may be a snare for the feeble-minded, a pit trap for thought, a diversion from reason, such as it is. If they be not strictly moderated, comments must be destroyed.

 

[fn. 1] In a post on civility, he mentions a number of questions he views as easy. "Was the U.S. justified in invading Iraq?" (Leiter's formulation) isn't easy; there are a number of decently plausible theories regarding war which might have justified action (I'm assuming Leiter means morally, not rationally, justified). "Were the administration's proffered justifications adequate?" is easy. "Are Bush's economic policies in the interests of most people?" isn't easy; being financially worse off might well be in people's interests, if only as an unintended side-effect of some other set of interests. But "Do Bush's economic policies make, at least in the short-term, most people financially worse off?" is easy. (I'm not, it's apparent, making much argument. And I haven't taken the necessary step of showing that, even if subsidiary questions are hard, that the answers aren't easy cases nonetheless. I think this suggests, though, that Leiter is a bit too careless about what questions are easy.)

O'Connor's resignation

Justice O'Connor resigned effective on her successor's confirmation. Professor Jim Lindgren, of the Volokh Conspiracy, notes an argument by Matthew Franck that the condition is a nullity, and that O'Connor has effectively resigned. Franck parses some statutes and notes that it might seem that the resignation is a nullity, and so the subsequent nomination of Roberts for the seat, and, if he is confirmed, his subsequent confirmation, nullities too. I think that this is probably wrong. (Professor Lindgren points out the precedent of C.J. Warren; and I think there are also good statutory arguments.)  But the next step of Franck's argument is the most worrying to me. He says that because O'Connor's seat has been treated as vacant, the condition--and not the resignation--should be treated as a nullity. Surely this is wrong: Resignation is the perogative of the justice herself. She cannot be made to resign by any means (only impeachment will serve to remove her). How, then, can it be that the President and Congress thinking it so would make it so?  Justice O'Connor did not, it is clear, mean to resign at that moment; she wanted to be able to continue should no replacement come onto the bench. Either her condition is valid or she has not resigned at all.

Visiting professors; being a bad blogger

1. Professors on the move. Rosa Brooks is going to be visiting Georgetown University Law Center next year. I will have the great pleasure of taking International Law I with her (assuming my schedule does not change). David Luban, usually of Georgetown, will be visiting Stanford Law School, where he will be the Leah Kaplan Visiting Professor of Human Rights. Stanford students are in for quite a treat, I think.

2. Bad blogger. As Jess points out (I'm reading between the lines here) in the comments, I am a very bad blogger. She, on the other hand, has written some very worthwhile posts lately.

3. Scheduling classes. It seems that most law schools have simply idiotic methods for scheduling classes. I feel like I was really screwed out of a couple of classes, analysing how things played out. But I don't have, at the moment, anything on my schedules I don't want to take, so I'm happy.