October 24, 2003
Faculty Behaving Badly
Dennis Baron reports on Faculty Behaving Badly. Wow. Either we at the law school are better behaved than that, or I’m seriously missing some great gossip.
Coronal Mass Ejection Headed Our Way
BBC NEWS | Science/Nature | Earth put on solar storm alert:
Imminent disruption is predicted for satellites, power systems and even mobile phones because of a solar storm.
It comes from one of the largest groups of sunspots seen for years. On Thursday superhot gas erupted above them.
The event, called a Coronal Mass Ejection, sent 10 billion tonnes of superhot gas speeding towards Earth.
As well as communication blackouts, aurorae - polar lights - may be seen from mid-latitudes as the gas arrives.
“10 billion tonnes of Superhot gas”? Speeding our way? I left the car in the sun yesterday, and when I got into it in the late afternoon, the thermometer said 111 degrees Fahrenheit (ie 43.8 Celsius). Isn’t that hot enough already?
UK Appoints First Female Law Lord
The judicial review committee of the House of Lords is the UK’s highest court, except that it isn’t technically a court. So, technically, that honor belongs to the Court of Appeal of England and Wales , which is why the Master of the Rolls, the head of the Court of Appeal, is the ranking judge in civil cases. The ranking judge in criminal cases is the Lord Chief Justice, which always makes me think of Gilbert and Sullivan. In Scottish criminal cases the highest court is the High Court of Justiciary. The High Court is a lower court than the Court of Appeal, although not the lowest court. And in all cases except those which go to the Judicial Committe of the Privy Council, the Judicial Committee of the House of Lords is, in effect, the UK’s Supreme Court. Indeed, Prime Minister Tony Blair intends to take the Judicial Committee out of the upper chamber (the Law Lords are really Lords and they sit in the House of Lords — and even participate in debates relating to some legal matters), and replace it with a separate Supreme Court.
Anyway, whatever you may call it, the amazing thing is that the Judicial Committee/House of Lords/Supreme Court has never had a woman among its members. Until now: ‘Incisive judge’ becomes first female law lord.
‘bout time.
Dame Brenda Hale is one of the new breed of judges who did not slowly rise up through the barristerial ranks, being graded on her chap-ness, but instead spent most of her career as an academic. What’s more, she wasn’t part of the London legal mafia — she was Northern. A Yorkshirewoman who taught at Manchester no less.
In the same interview, for the Law Society’s handbook Women in the Law, she said she had been “deeply affronted” by the assumption at judges’ lodgings that, as a woman, she would retire to another room after dinner while the male judges remained for port and conversation. On one occasion she insisted that neither she nor her female guest, a young barrister, would withdraw.
I think their Lordships are in for a little shock.
Cuba Travel Ban Endangered
CNN.com - Senate votes to end Cuba travel ban - Oct. 23, 2003. Well, that ought to get the folks in Little Havana excited. But maybe not as excited as it would have a few years ago.
There is a pervasive myth that the US embargo of Cuba weakens the Castro dictatorship. I believe it strengthens it. I wish our Cuba policy were like our Poland policy during the regime of the evil General Wojciech Jaruzelski. At that time, and before, the US policy—spurred by the Polish-American lobby who wished to enrich rather than impoverish their families—was to encourage two-way cultural exchanges, and lend Poland lots of money to buy our goods. The combination was devastating to the Communists. When people saw what life was like on the other side of the Iron curtain they got, well, bolshi. US engagement helped create the conditions for Solidarity’s victories. Conversely, embargo entrenches the dictatorship, by creating a foreign scapegoat for the nation’s dismal economy. Viewed as an act of neighborly hostility, the embargo is invoked to justify repression.
Thus, I want to scream when I read,
Opponents warned that the provision sent a wrong signal at a time when the Castro regime has escalated its crackdown on dissidents. “Why should we now open up travel to Cuba to give additional cash flow to the Castro regime?” asked Sen. Ted Stevens, R-Alaska, chairman of the Appropriations Committee.
No. No. It’s not a “signal”. It’s a policy. And the reason you live with whatever short run benefits might enure to a Communist regime — even when it’s misbehaving — is that 40 years of your policy has produced nothing good. Meanwhile, doing the opposite in Europe brought down the entire Warsaw Pact.
It’s true that for many years local passions in Miami ran so deep that local leaders and rank-and-file were basically (my Cuban secretary will not like me saying this…) irrational on the subject of the embargo. It was about honor, revenge, divorce, it was personal. There’s still some of that feeling in Miami today, but my sense is that it is not as unthinking as it once was. The community is no longer monolithic, and even some of the supporters are not as passionate.
Of course, there’s still the passionate opposition of US sugar beet farmers, who don’t want to compete with Cuba in the sole industry in which it has any comparative advantage…
Expect a Bush veto.
US Jurisdiction in Guantanamo -- Some Complexities
Earlier, I had what seemed like a great idea:
Personally, I would be prepared to read the words “the United States shall exercise complete jurisdiction and control” language of the treaty as invoking the powers of all three branches of government, not just the executive. In this view, under Art. VI of the Constitution (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”), the treaty would supply the jurisdiction for the federal courts that they seem to believe they lack under Article III.
On reflection, this isn’t quite as great an idea as it seemed. Or, maybe it is, but it isn’t as simple to get there as I would like.
First problem. Is the treaty-self executing? In the US, most treaties are presumed not to be self-executing, which means that Congressional action is required to give them domestic legal effect. A quick Westlaw search of the US Code reveals nothing that could be seen to give these agreements domestic legal effect except maybe for 18 U.S.C.A. § 7, which defines the “special maritime and territorial jurisdiction of the United States” in a way that might include Gitmo. Even if it does, all it does is make various aspects of US criminal law applicable, not civil suits. I think it ought to be the rule that acquisitions of jurisdiction are self-executing; it’s not at all clear that the Supreme Court agrees.
Second problem. Supreme Court precedent. A little research showed that the Supreme Court makes a rather arbitrary distinction between a mere “possession” over which the US has full control, and territory over which it has “sovereignty”. One could question the wisdom, indeed the meaningfulness, of this distinction, but it’s there in the cases, at least in the statutory construction context.
United States v. Spelar, 338 U.S. 217 (1949), concerned a Federal Tort Claims Act claim arising from an airplane crash at Harmon Field, Newfoundland, an air base leased for 99 years by Great Britain to the United States. In the course of holding that the air base was a in “foreign country” for purposes of the FTCA because it was subject to British sovereignty, the Court stated, “We know of no more accurate phrase in common English usage than ‘foreign country’ to denote territory subject to the sovereignty of another nation.” So by this logic Gitmo is a mere possession, not part of our sovereignty. And our statute laws don’t run there unless Congress explicitly makes them extra-territorial. Without researching more, I don’t know if that necessarily limits claims arising directly under the Constitution, especially habeus claims, but it imposes a potential jurisdictional bar that needs surmounting.
Justice Frankfurter concurred in Spelar, anticipating the modern problem,
The Court’s opinion finds the phrase ‘foreign country,’ in that Act’s restriction against ‘claims arising in a foreign country,’ to be as compelling in excluding the Newfoundland air base, under the kind of control that the United States exercises at these bases, as less than a year ago it found the term ‘possessions’ in the Fair Labor Standards Act to be compelling in including these bases. Vermilya-Brown Co. v. Connell, 335 U.S. 377, 69 S.Ct. 140. To assume that terms like ‘foreign country’ and ‘possessions’ are self-defining, not at all involving a choice of judicial judgment, is mechanical jurisprudence at its best. These terms do not have fixed and inclusive meanings, as is true of mathematical and other scientific terms. Both ‘possessions’ an ‘foreign country’ have penumbral meanings, which is not true, for instance, of the verbal designations for weights and measures. It is this precision of content which differentiates scientific from most political, legislative and legal language.
A ‘foreign country’ in which the United States has no territorial control does not bear the same relation to the United States as a ‘foreign country’ in which the United States does have the territorial control that it has in the air base in Newfoundland. In the entangling relationships between such nations as Great Britain and this country, it is not compelling that ‘foreign country’ means today what it may have meant in the days of Chief Justice Marshall, or even in those of Mr. Justice Brown. The very concept of ‘sovereignty’ is in a state of more or less solution these days. To find a single and undeviating content for ‘foreign country’ necessarily excluding these bases, while ‘possessions’ of the United States is to be deemed as necessarily including them, despite the momentum of historic meaning and experience leading to a contrary significance of ‘possessions,’ is to give the appearance of logically compulsive force to decisions. It fails to recognize the scope of supple words that are the raw materials of legislation and adjudication and is unmindful of those considerations of policy which underlie, consciously or unconsciously, seemingly variant decisions. When so many able judges can so misconceive the implications of our decision in Vermilya-Brown Co. v. Connell, supra, as they have been found to misconceive them, the source of difficulty cannot be wholly with these able lawyer court judges.
Note: Brad DeLong linked to my earlier effort and commented that Guantanamo Bay is a gap in seisin-it is a terra sine domine, a land without a lord, and among the oldest principles of the Feudal and Ancient Common Law is that such a gap in seisin is impossible—that for every square inch of the earth not currently engaged in active military operations, there is a normal peacetime court to take jurisdiction and judge offenses.
I regret to say that our courts are all too comfortable with such gaps. The leading example is Smith v. United States, 507 U.S. 197 (1993), which I used to use as the last reading in my Jurisprudence class. In Smith the Supreme Court held that Antarctica was a “foreign country” for FTCA purposes, even though it was not a country and is “a sovereignless region without civil tort law of its own”. Justice Stevens wrote a brilliant dissent.
It begins,
In my opinion the Court’s decision to grant certiorari in this case was a wise exercise of its discretion. The question whether the United States should be held responsible for the tortious conduct of its agents in the vast “sovereignless region” of Antarctica, ante, at 1180, is profoundly important, not only because its answer identifies the character of our concern about ordinary justice, but also because Antarctica is just one of three vast sovereignless places where the negligence of federal agents may cause death or physical injury. The negligence that is alleged in this case will surely have its parallels in outer space as our astronauts continue their explorations of ungoverned regions far beyond the jurisdictional boundaries that were familiar to the Congress that enacted the Federal Tort Claims Act (FTCA) in 1946….
The issue at the heart of all this is that I think it ought to be the rule that, as Mr. Dooley put it, ‘th’ constitution follows th’ flag. The Navy, the President, his minions, all derive their power from[*] the Constitution. They must take the bitter with the sweet, and accept the shackles of due process and habeus corpus that come with the great power entrusted to them. I wish I were more confident that the Supreme Court will see it that way.
Don’t underestimate what’s at stake here. A ruling that there’s no way for the Gitmo detainees to get a court to consider their plight may be one that requires no judicial creativity, but it is a ruling that even if they were being killed or tortured by our government (and there are allegations being made by some that prolonged solitary confinement, without any idea how long you will be held, amounts to torture) our courts will not hear them. That should bother you. It bothers me.
[*] typo corrected.
The AALS Meat Market Intrudes on Domestic Tranquility
I’m a single parent for the next few days, as Caroline is in DC for the annual hiring meeting of the AALS which begins tomorrow. Blogging may be light as a result. Caroline is the Chair of the law school’s appointments committee, which is a brutally hard job, but one she does well. Some of our colleagues have joked that Caroline should be Appointments Chair for life, but I don’t know that she or I could take that.
Every year Miami and every other law school gets over a thousand forms provided by the AALS’s central clearing service. Each contains a one-page summary of the c.v. and the teaching interests of a person who’d like to become a law teacher. In our school, the chair is the only committee member who has to look at them all; the other committee members get a chunk each, although they’re invited to look at more if they wish. Then those thousand-plus forms must be culled. To the extent they can, the committee members call references, and read writings, of the applicants whose forms pique their interests. Then they debate.
Some years we have only one opening, or none. This year, as it happens, we have several openings, and also some fairly specific subject-oriented needs, so the committee is interviewing in two parallel teams. Even so, that means winnowing down the 1000+ hopefuls to about 50 persons who’ll be seen at the, excuse the term, “meat market,” for about 30 minutes each. From that group, the committee will have to select a small number to invite to fly down here and spend a day being interviewed, presenting a paper, and having dinner with a semi-random group of faculty. It’s a very intense process for the interviewee, and fairly high stakes for the faculty since people tend to get tenure here. (That would be because we make such good initial choices, of course.) The initial hiring decision thus risks being the start of a lifetime relationship, and the faculty takes it very, very, very seriously.
Many of the applicants are extremely well credentialed; indeed credential inflation is rampant. When I went on the market I had published a student note, a book review, and had a fairly final unpublished draft article. My sense was that that record, plus an extra graduate degree and a few other things, put me comfortably above the credential median. Today, that package might still put you above the median, but not comfortably given all the Ph.D’s, and the people with half a dozen publications.
I vividly remember my on-campus callbacks from more than a decade ago, but the AALS experience itself is now a bit of blur. We were living in London, with jobs that couldn’t be abandoned for long, and even with coming a day early had some lingering jet lag. I had 17 interviews in two days, which meant I had very little down time and spent most of the day racing up and down the two towers and long corridors in the confusing hotel complex in Washington that the AALS uses for this event. Caroline and I were both interviewing all over, trying to find a geographic pairing, a feat ordinarily considered just short of impossible—but made somewhat possible by her stellar record, albeit discounted by the fact that some schools seemed incredulous that a British academic would dare suggest that she might teach US Securities law as well as European law and a common law subject.
Caroline had either one more or one less interview than I did — I can’t recall which. What I do remember is that we hadn’t anticipated the amount of walking and running we’d be doing to get from one interview to the next, and that Caroline’s feet were literally bleeding from her elegant shoes by the time we were done. (Another vivid flash of recall is of passing rapidly through the lobby in transit between towers, and seeing an acquaintance moping around; he said he had two interviews and asked how I was doing—I was too embarrassed to admit the extent of my good fortune.)
A thirty-minute interview isn’t much. I do recall the one question that totally flummoxed me: Judith Resnik asked me to name the legal academic whose work I most wanted my writing to resemble. The question had never occurred to me — I’m afraid I’d always wanted to be myself. I stammered out the names of the more productive people I could think of. USC did not call me back.
By far the worst AALS interview I recall was with another school that had an even better reputation. I was their last interview at the end of a long day. If I was exhausted, and I was, they looked even worse. The first 15 minutes were devoted to their sniping at each other—I barely got a word in edgewise. It was obvious to me that I’d walk out of there and they’d have no idea of who I was. Not good. At some point maybe five minutes before the end of the interview, I managed to intrude into the conversation with some polite version of ‘hey, isn’t this supposed to be vaguely about me?’. At which point the three disputants focused on me for the first time.
‘Well’ said one of them briskly, ‘do you have any questions for us?’. I hated that question. But I had a standard riposte prepared: “What is your idea of a good colleague?”. So far, it had seemed to have the virtue of not being a stock query that schools heard all the time; once or twice it had even elicited an interesting reply. This time the reply was unexpected, venomously directed at one of the other figures in the room: “Someone who doesn’t talk in faculty meetings.”
Naturally, they didn’t call me back either, which is perhaps just as well. By that standard, I might not have been a good colleague.