Ciceronian Review

Zogby

Although the Daily Show is not a news show, I nevertheless think it worth repeating that Zogby predicted a Kerry win last night during his interview -- well, chat -- with Stewart.

Court Rescues Republicans

The Utah Supreme Court ruled yesterday on the question of whether the new Republican candidate for Salt Lake County Mayor will appear on the ballot as a write-in or as the party nominee.

The order of the 3rd District Court in this matter is reversed. We hold that the certification of disability provided by Doctor [Philip] Roberts substantially complies with the minimal requirements of the Utah Election Code at Section 20A-1-501(1)(b)(ii). Because the issue was not before us, we express no opinion as to whether or not Mayor [Nancy] Workman is, in fact, disabled.
Given the extraordinary nature of this action, and the extreme time constraints on both the trial court and this court, as well as on the public officials charged with preparation of the ballots for next Tuesday's election, this order is issued without further elaboration. However, an opinion will follow in due course to explain our action for the guidance of election officials, candidates and other interested parties.
Signed by Justice Michael Wilkins

A little background for those outside Zion. The County Mayor is Nancy Workman. Ms. Workman, a Republican, was indicted on several corruption charges. The scandal had been developing for some time, and the County Auditor has already pled and been sentenced on related corruption issues. Although her indictment was not a surprise, she did not step down and the party nominated her for re-election. Following the issuance of the indictments, and some unsuccessful efforts to get the charges dismissed, Workman’s doctor provided her with a statement stating that if she continued with the campaign while facing charges and trial, the stress would disable her. (Her later appearances in public made plain that neither Workman nor her doctor ha much regard for truth.) Utah law does not permit a party to replace a candidate unless the candidate is certified as disabled. Utah Code Section 20A-1-501(1).

The Democratic party chairman, Donald Dunn, did not believe that the note in this instance met the legal standard, and sued to prevent the County Clerk (a Democrat, by the by) from replacing Workman with Ivory on the Republican line. Dunn prevailed at the trial level where Judge Henroid found the note was ambiguous and insufficient to meet the statutory standard. That decision has now been reversed.

The Supreme Court has not yet issued an opinion. When it comes out, it will make interesting reading. The relevant portion of the statute provides that a party candidate may be replaced by the party after the primary if the candidate:

Resigns because of becoming physically or mentally disabled as certified by a physician
Utah Code Section 20A-1-501(1)(b)(ii).

It is not a model of clarity. Does ‘disabled’ take its meaning from the ADA? Is it disabled with respect to the office or the campaign? I would have thought the former, but apparently the Supreme Court thinks otherwise. Why would a note that predicts a future disability constitute a statement of present disability, which is what the statute would seem to require (and which makes more sense)?

My first take is that, while I would have upheld the trial court, the decision is not unreasonable. Once the opinion is out, we will be able to assess the reasoning. The one result which is presently clear is that this significantly enhances the chances of the new Republican candidate for County Mayor, hence the title above.

FBA

Last week the Utah Federal Bar Association held their annual day-long meeting with the District Court Judges and the Magistrate Judges. The Chief Judge of the Tenth Circuit was also present. (The courtrooms of the Tenth Circuit in Denver are worth visiting even without an argument. The architecture is very good.) Legal Education is a messy subject. The fact is, most CLE courses are a waste. One rarely learns anything and it costs a fair amount of money. The use of web-based courses is a significant help because one can then integrate some work with the course. In my fields, I do find some courses of real use – but they are specialized national events which would be attended without the mandatory hour requirements. The Federal Bar meeting is more like the mandatory than the specialized courses. Some curious facts are learned, and one gets a chance to socialize with district deities, but it is not about substantive law. The meetings also always have the same theme – civility. I don’t mind the complaining by judges about a lack of or shortage of civility in papers and arguments. I mind that they never do anything about their complaint. They always have the same lines – lack of civility undermines credibility, makes the judge less interested in the arguments, etc. But I have not seen any of them actually penalize anyone for lack of civility. In fact, a lack of civility is too often a good tactical move. Make a big stink about nothing and impugn opposing counsel, and the judge (or magistrate judge) finds it distasteful and avoids ruling o the issue, or takes the even-handed condemnation route. Again, no movement. Judges cannot control the tone or course of a case, but they surely can influence the way the case is litigated. It would be a great help to civility – and efficiency – if from time to time the judge or magistrate would impose some penalty on attorneys for lack of civility, for obstructionism, etc. I don’t think it will happen, for a variety of reasons, some of which are good. I think next year we will get another set of complaints about lack of civility. It is like the weather.

QaQaa, NRO and Basic Reasoning: Lindgren Is Wrong

Over at the Volokh Conspiracy, Jim Lindgren takes a whack at the NYT over the missing explosives. Lindgren relies on commentary from NRO and related folk to support a claim that the NYT has the story wrong. I was going to write a response, but someone has already done most of the work for me - the kind folk at Rationalists Wearing Sombreros. I would add two things -- it is not material whether the first US troops were 3rd Infantry or 101st Airborne. No one secured the site, and no one seems to have been alerted to the potential importance of the site. Which is evidence of poor planning. And that leads to the second point -- the stuff has been missing since April 2003. Why is the search just now starting?

Update
Yesterday and today has brought further investigation of the QaQaa explosives. A number of news sources have weighed in with further information, all of which cuts against Mr. Lindgren's claim. See here , here, and here for some summaries.
Lindgren is not a journalist, so a retraction or correction would be out of place. It would be nice to think that he has a higher standard for his scholarship.

Vote Pairing

AGain this election there are organizations arranging for vote pairing. The idea is that a third party voter in a swing state agrees to vote a major party candidate in exchange for a major party voter in a safe state voting for the third party candidate. The third party gets what it cares most about - vote totals, which provide a measure of legitimacy and the possibility of matching funds. For the major party voter, one gets the vote for your guy in a place that may matter. Difficult to enforce, for obvious reasons, but worth considering all the same.
If you have an interest, I direct you to Vote Pair.

Kramer v. Reason

NY Times Book Review had a noteworthy review by Laurence Tribe of Larry Kramer’s new book.

Kramer is now Dean of the Stanford Law School. (The previous two or three Deans have been Constitutional Law Scholars too. I wonder if that is a job requirement.) The review was remarkable in a number of ways. The most important, I think, assuming that it accurately reports Kramer’s theory (an heroic assumption, I know) is that the Dean of Stanford Law School does not believe in rule of law. Here is a key section of the review:

“And when Kramer explains how he would have the people ''take back'' their constitutional birthright, it's not surprising that he views wistfully ''outright defiance'' of the court's contentious decisions, ''like those on abortion and school prayer.'' With such praise from a law school dean for what can only be labeled lawless conduct, it seems anticlimactic when Kramer rounds out his platform by urging those who disagree with the court's rulings to consider starving it of the money it needs to function; stripping it of jurisdiction over sensitive topics; shrinking its size or packing it with new members (as Franklin Roosevelt tried to do in the mid-1930's); and, yes, even impeaching justices whose opinions incur popular disapproval.”

What this seems to me to mean is that the decisions of the courts, of whatever level, have force only for those directly before it in the case at hand. That is not much of a role for courts, and surely makes pointless their inclusion in the Constitution. In fact, it makes the existence of any system beyond voluntary arbitration a bit of a waste. One could talk about the civil rights decisions, but what would be the point. People who believe that court decisions are tyranny and that the people are and should be free to ignore the courts or strip the courts of decision-making power are not going to be moved by examples. But for myself, I find the positions described in the review to be inconsistent with the oaths members of the federal bar swear. I cannot see that anyone with these sorts of views – again assuming that the review reports accurately – can be called ‘progressive’ with a straight face. It is a kind of progressive one finds in the Progressive Labor Party.

I found Tribe’s review far more interesting than the review of Himmelfarb. No one could seriously believe that the English Enlightenment is less well-known and less studied than the French. I doubt one could get through a philosophy program in the U.S. without study of the English Enlightenment figures (at least if they include the Scottish Enlightenment and the British Utilitarians). It would be easy to miss the French figures entirely – Voltaire, Diderot, even Rousseau may not be part of the curriculum. So much the worse for the curriculum, one might say. I suppose so. But there are closer connections between Rousseau and Hume or Hutcheson than between Hume and Bentham or Mill.

New Movies

The Sunday NYT Arts section is often a forum for unpaid advertisements – the long story about some about to be released movie or soon to open play in which the reporter has nothing much to say beyond, ‘gee, ain’t it great!’. This week encomium was to Polar Express, to be released in a couple of weeks. The story was dressed up as a report about some new technology used in creating the movie, but it was, all the same, a long advertisement. It was also a little but funny.

“But there is a revolution hiding inside this seemingly innocuous family film, to be released by Warner Brothers on Nov. 10. The first star-driven film to cross completely over to the digital domain, it might change the way movies are made and seen.”

Well, obviously not the first purely digital film, so it must be that “star-driven film” marks some category. How one distinguishes this film as star-driven from Shrek, someone else will have to figure out.

“In the process it does away with many of the most basic elements of filmmaking: there are no expensive sets to be built, no elaborate lighting to be rigged, no bulky camera to be painstakingly hauled into place.”

This is interesting: “no expensive sets to be built.” The film has production costs of $160 million. I take it savings are industry-wide at some undisclosed time in the future. Sort of like net job gains from a Wal-Mart.

Markets In Everything

is my favorite part of Marginal Revolution. Today's entry is, if I may be forgiven the term, priceless.

Reading Randy 13 (Penultimate)

The last chapter for Barnett’s Restoring the Lost Constitution is about police powers of the state, or of the states, to be a bit more accurate. Barnett’s approach, no surprise, is to propose that police powers be understood based on a Lockean political theory. Under such an approach, government regulates conduct so as to give like rights to all, within a context where the government is not and may not be absolute. What one ends up arguing for here is legislative action being legitimate to the extent that the action looks to the “common good.” The “common good” is characterized as securing liberty and property against the central problems of a state of nature. (For reasons we can skip for now, it is property more than liberty that counts in this line of thinking.) The problems are these: (1) want of an established and settled known law commonly acknowledged as the standard of right and wrong; (2) want of neutral or indifferent judges; and (3) want of power to enforce judgments.

It is worth pausing a moment to consider whether Lockean political theory really provides a cure to these deficiencies of the state of nature. There is, of course, a multitude of ways of studying or analyzing the issues. One thing that is key to Lockean programs is that they must yield in the end to a conventionalist account of justice, at least in the sense of law. The first defect is cured merely by a more or less widespread acceptance of the social practices, and does not tie to any substantive standard. In other words, it has no distributive content, and does not even include a procedural constraint on outcomes. All that is needed is settled or stable outcomes, and it does not much matter how they come about or how they are maintained. Similarly, all that is going on in the call for neutral judges is that there by third party judges. It may that an argument for disinterestedness can be made out, but I am doubtful that it is required to meet the state of nature complaint. There, the key is that no one is the judge of their own claims. The last defect is met simply by having a stable population in sufficiently contact to make use of enforcement conventions, which could be shunning or the like. (We tend to think in terms of state power and law enforcement, but that is a mistake, however understandable. Enforcement of judgments could be effected by religious edicts (or the sort f social practices used within families) without direct application of force.) I would expect that the response for Barnett and his cohort would be to focus on the fact that the Lockean theory is offered as a methodological approach to political theory. So what one is or should be concerned with is not the specific detail of the Lockean formulations, but in justificatory strategy – the burden is on explanation and justification for entry into the state, and so on the regulation and constraints imposed by or through the state. That is, it is about burdens.

Barnett argues that a Lockean approach is contained in the 14th Amendment, following a number of nineteenth century writers (like T. Cooley). The historical case may be there, but it is a curious line of argument. It is curious because it places in higher contrast the need for a bridge between the meaning of the document and the political theory which must ground the bound conscience which he seeks. Let me try that in another articulation. The interpretation is grounded in historical commitments. The problem is to provide a justification for legal authority. The historical account is well and good as a means of grasping what was meant, but it is irrelevant – or to be fair, not directly relevant -- to the question of whether the law promulgated pursuant to the Constitution is binding in conscience. Whether Cooley has the right theory for the 14th Amendment does not add to the argument that political obligation attaches to law consonant with that Amendment, unless the theory is sufficient independently to create the obligations in question. Now Barnett, I take it, would present a riposte along the lines of: whether the law is binding depends on it meeting certain conditions, discussed elsewhere. That is procedural really. But what it is that binds is not found through that procedure. What it is that binds is found (in part at any rate) by the historical materials. Thus, what binds is illuminated by the historical argument. Anyway I think that is the hinge for this part of the work. I think it does not hold, for reasons I will discuss later.

Which takes us to the Conclusions and Cases. Barnett accepts the limits of his technique and grants that some bad or undesired outcomes will obtain, for example, the collapse of environmental regulations and labor laws (although the latter is not bad in his view). But, as he points out, a political theory without any undesirable cases is likely not a theory at all, or not a theory we should concern ourselves with. Political theory, even of this sort, is not an essay in paradisiacal descriptions. Barnett is right that one has to be willing to accept some costs with any theory. And he is right to think that the mere fact of uncomfortable outcomes cannot disqualify a theory, and that we should be suspicious of argument that comes to nothing more than counterargument by example. But Barnett also misses something, at least in the writing here. We cannot ignore results or examples, and we cannot assess theories without considering them. What he could say, and I assume thinks, is that one needs to have a set of examples in mind at the outset, some set which will be used in testing the theory. It would be nothing but stupidity to adopt a theory without regard for its concrete results. To put it in historical terms, a problem of communism is that it is a human disaster in practice. What would be helpful is if Barnett could offer some way of sorting out the cases whose outcomes would count against his theory, outcomes which are or might be thought problematic.

The last post on this book is to come.

Fallen

Although Autumn seems today to have left Zion, I am reminded that there is a lovely poem by Keats set out for us by the Big-Hatted folk. I recommend it to you.