2005 - %3, September

Mapping legal theory

| Fri Sep. 2, 2005 3:52 PM EDT

Via Legal Theory Blog, The Economist surveys two recent studies of legal jurisprudence using network theory.

Seth Chandler plotted opinions on a network that showed the interconnectedness of 26,000 Supreme Court opinions over the last 200 years by linking opinions that that cite to one another. His findings provide interesting context for some of the recent and upcoming high profile First Amendment cases before the Court.

He found the most important opinions, at least judged by how many times they were cited, by working out which nodes were likeliest to fall on the shortest paths between two other nodes. Intriguingly, the cases mostly come from an advanced and esoteric subject—the law of federal jurisdiction—that addresses structural features of American government, such as the relationship between the states and the federal government and the relationship between the courts and Congress.

Although important, these cases are not, however, the cases that are most tightly bound into the network. To find the network's so-called main core, Mr Chandler repeatedly filtered out less-connected cases. He found that most of the cases in the main core interpret the American constitution's First Amendment, which protects freedom of speech and free exercise of religion. This, he suggests, means that deciding a free-speech case requires understanding a more complex body of precedents than deciding any other kind of case. By the same token, any First Amendment decision, right or wrong, will reverberate more readily through the law than a decision made in any other area.

Maybe the ten commandments cases will have broader implications that I originally thought?

The second study, by James Fowler and Sangick Jeon, also creates a network of Supreme Court cases by citation. Unlike those in the study above, the links in the Folwer and Jeon study are directional--they show the citer and the citee--which creates a map that reveals how citation patterns have changed over the last 200 years. The whole article is fascinating, but I'll excertp below the part that relates to recent discussion about reliance on precedent and so-called judicial activism.

Dr Fowler's model shows that, until the end of the 18th century, the Supreme Court's opinions rarely cited previous Supreme Court opinions. This is not all that surprising since there were so few. In the 19th century, however, the average number of citations to previous cases started climbing sharply and so did the average number of citations to those cases by later Supreme Courts. For a while, Supreme Court justices liked to cite opinions with many citations in them. By 1950, an average opinion cited about 15 other opinions, and each opinion was itself cited by roughly the same number.

The trend reversed, however, between 1953 and 1969, when the controversial Earl Warren served as Chief Justice of the United States. As that Court embarked on its activist, and mostly liberal, course, there was a precipitous drop in the number of citations it made, which implies that the Warren Court was less respectful, or perhaps just less interested, in precedent.

When subsequent Supreme Courts turned to the right, the number of citations continued to fall, implying they were ignoring the Warren Court precedents. Under William Rehnquist, the current chief justice, this trend has continued apace, reaching an average of a mere five citations by 2002. Will the Rehnquist Court's own opinions suffer the same fate?

Ah yes the "activist" course of the "mostly liberal" Warren Court that began with Brown v. Board of Education. Apparently, at least according to The Economist, when so-called conservative courts rely on even less precedent than their liberal counterparts, that's not activist, it's sensible.

I've written about this before, and many more talented people than I have done so as well, but Brown really can't be satisfactorily justified on originalist grounds. Brown is hard to justify on any grounds--it was a short opinion that did radically break, in fact overturn, established precedent (bad precedent, of course, since it overturned Plessy v. Ferguson, but still). It raises so many interesting questions. The court's legitimacy in the eyes of the public runs up against the civic duty of its members in the face of an objectively unjust law. And what would have been better for the Court's legitimacy anyway? It could have issued a more restrained opinion upholding the law, but how much legitimacy does a Court that continually upholds racial segregation have as an arbiter of justice? If the Court had ruled for the Topeka Board of Education, and let the legislative process end segregation, perhaps the Civil Rights Movement would have been less violent, but would the net violence, the net harm done to innocent people, have been less if racial segregation had lasted for another 20 years or even 50?

Obviously, no one knows the answers to these questions and the many others that come up, but I often wonder about them when people start throwing around the term "activist judges." It's an empty frame, it's mainly just pejorative, but it bothers me that it obviates all of the interesting questions about jurisprudence and the balance of power between courts and legislatures, the federal government and the states.

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Congress Swings Into "Action"

| Fri Sep. 2, 2005 3:39 PM EDT

The Los Angeles Times looks at what Congress plans to do once it gets back in session. Disaster relief will play a pivotal role, for sure, but many Republicans are hoping that it doesn't cost so much that they can't put Social Security privatization and cuts to the estate tax on the table. Right, that would be the real tragedy here. Meanwhile, Dennis Hastert wonders whether the federal government should even be in the business of rebuilding New Orleans. Whatever the merits of that thought, I'd like to hear the Speaker explain why federal dollars are appropriate for rebuilding Fallujah but not the most important port in the Western Hemisphere.

Forseeable for sure

| Fri Sep. 2, 2005 2:08 PM EDT

George W. Bush yesterday morning on Good Morning America:

"I don't think anyone anticipated the breach of the levees."

As Echidne, Kevin Drum, and Matthew Yglesias point out, a lot of people were anticipating the breach of the levees. That's not all. The National Oceanic and Atmospheric Administration (NOAA) of the U.S. Department of Commerce released a study earlier this month predicting a 95-100% rise in the number of tropical storms this season.

In total, this season is likely to yield 18 to 21 tropical storms, with nine to 11 becoming hurricanes, including five to seven major hurricanes.

..."The tropics are only going to get busier as we enter the peak of the season," said Brig. Gen. David L. Johnson, USAF (Ret.), director of the NOAA National Weather Service. "This may well be one of the most active Atlantic hurricane seasons on record, and will be the ninth above-normal Atlantic hurricane season in the last eleven years."

It's not quite an August 6th memo, but Bush certainly should have known about the likelihood that intense hurricanes could hit New Orleans.

Of course, that information might not have made it through the Condi filter, since the unprecedented rise in high intensity tropical storms seems to be partially related to the rising water temperatures caused by global warming.

NOAA downplays this,

This confluence of optimal ocean and atmosphere conditions has been known to produce increased tropical storm activity in multi-decadal (approximately 20-30 year) cycles. Because of this, NOAA expects a continuation of above-normal seasons for another decade or perhaps longer. NOAA's research shows that this reoccurring cycle is the dominant climate factor that controls Atlantic hurricane activity. Any potentially weak signal associated with longer-term climate change appears to be a minor factor.

They don't cite to any study, though, and somehow I have a feeling that political considerations motivated that statement. A recent study published in Nature by Kerry Emmanuel, a climatologist at MIT, suggests that while there are natural reasons for the rise in frequency and intensity of hurricanes, global warming has compounded their effects. The Washington Post has more details on the scientific debate here.

If this is going to a problem for decades to come, I certainly hope the administration stops privatizing and undermining FEMA and cutting funding to levee building repair in the cities that need it.

Homeland Security Flunks

| Fri Sep. 2, 2005 1:58 PM EDT

In Slate today, Tim Naftali recalls a few 40-year-old lessons that the Bush administration might have done well to take to heart:

The response to Katrina thus far indicates two flaws in the Bush administration's thinking about homeland security. The federal government hasn't learned how to plan for a tragedy that demands putting a city on sustained life-support, as opposed to a one-moment-in-time attack that requires recovering the dead and injured from debris and then quickly rebuilding. And DHS appears unwilling to plan for the early use of the U.S. military to cope with a civilian tragedy. Presidential administrations have perennially underestimated the difficulty of the latter task. In 1962, President John F. Kennedy's top aide, Kenneth O'Donnell, thought it would be easy to deploy troops rapidly to defend James Meredith when he was attacked by segregationists while trying to enroll as the University of Mississippi's first black student. "If the President of the United States calls up and says, 'Get your ass down there,' " O'Donnell said, "I would think they'd be on a fucking plane in about five minutes." Kennedy made that call. But then, in spite of O'Donnell's prediction, he watched in frustration as the army dithered for hours before deploying to Oxford, Miss.

The Kennedy administration thus learned that the army must be told in advance what to do. As a matter of law and preference, the military does little training for domestic missions. It balks and mutters about posse comitatus, the legal principle that prohibits the use of the army for law enforcement, and leaves the hard work for the National Guard and state and local authorities. This has made sense most of the time. But in an era when we are supposed to be better prepared for an urban disaster, the tradition of allowing local and state authorities to be overwhelmed before the federal government and military step in should have been rethought.

In the abstract, of course, there are hard questions to ask about the scope and limit of deploying federal troops on domestic soil. Obviously the time for those questions isn't right this instant, but it's appalling that no one's spent time figuring any of this out before now—especially when it was known for 40 years that the military takes a long time to deploy for civilian tragedies. And yes, as I said yesterday, now is the time for finger-pointing. Matthew Yglesias makes a similar argument today at Tapped, noting that the only thing that motivates politicians to put down the pork barrel and start looking at practical solutions to actual problems is fear. Now is certainly the time to make our elected officials fear for their political lives unless they do something.

On the other hand, a politician frantically trying to appear like he or she is "doing something" always overdoes it, and as with Hurricane Andrew in 1992, the multi-billion dollar relief efforts Congress has just authorizing will probably end up stuffed with corporate handouts and political favors. It won't be pretty. The same thing happened after 9/11, when Congress reacted to the bloodiest day in American history by setting up a Department of Homeland Security that was a boon for contractors, but mostly useless (as we're now seeing) and presented the Republican Party an opportunity to do a little union-busting. Nevertheless, an imperfect process is better than no process at all, and hopefully all the current outrage at the federal government—and especially at a White House that has gutted FEMA—will spur people to take disasters a little more seriously.

Darfur: The Ambiguous Genocide

Fri Sep. 2, 2005 1:56 PM EDT

In the American Prospect Kyle Matyla takes a look at Darfur: The Ambiguous Genocide by Gérard Prunier, a French academic. It's the first book on the ongoing genocide in Darfur. The review serves as a good summary of the conflict, whose complexity has too often served as a barrier for action. (To read what some students have accomplished, check out this Mother Jones interview with Darfur activist Nate Wright.) The world has a duty to read up—and act up—before even more die.

A National Disgrace

Fri Sep. 2, 2005 12:07 PM EDT

The country seems to be coming apart at the seams over Katrina and the total disaster that has fallen upon Mississippi and Louisiana.

Just to give you an idea, here is a small sampling:

  • People in the Superdome have been without food and water for days. The toilets are overflowing and people are desperately waiting for medical supplies and transportation. Many people have died waiting in the Superdome – including several babies – as the number of trapped has ballooned to over 30,000.
  • A chemical depot exploded this morning in New Orleans along the Mississippi River, sending black plumes of smoke hovering over the city.
  • Under the Same Sun points out that President Bush's main concern seems to be "insurance fraud."
  • Flagrancy to Reason mentions that there are still hospitals that have not been evacuated – once again, the main concern seems to be rescuing flat screen TV sets rather than the sick, the elderly, and the homeless.
  • Majikthise notes that the Department of Homeland Security first rejected aid workers from Canada bringing fresh water and medical supplies. Happily, the DHS finally caved in but now that the rescuers have reached the scene things are too out of control for them to do any good.
  • And as I noted last night, Michelle Malkin – apologist for torture and police brutality – actually said she was "heartbroken" when cops in New Orleans failed to arrest looters who were stealing food. It is important to keep in mind: she said she was heartbroken not because they were stealing food, but because the cops didn't arrest them.
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    Hunger strike begins at Guantanamo Bay

    | Thu Sep. 1, 2005 11:41 PM EDT

    Military officials report that 76 Guantanamo detainees are refusing food--attorneys for prisoners declare the number is around 200--in protest of their incarceration. The last Guantanamo hunger strike ended in July when the Pentagon agreed to talk with the prisoners. Those prisoners now say that Pentagon representatives have not kept their word about negotiations for their access to legal representation, or for the establishment of humane treatment at the prison.

    Many of the Guantanmo detainees have tried to commit suicide, and many now say they will starve themselves to death until they are either charged and brought to trial or set free. Some of the prisoners are reported to be well into the current hunger strike.


    There Is No Plan

    Thu Sep. 1, 2005 5:51 PM EDT

    As Tom Tommorow points out, if Katrina makes anything clear, the federal government—Homeland Security, FEMA, the DoD, whatever—has no plan to deal with a major disaster, terrorist or otherwise. Think about it: after an catastrophic event—and this one, at least, was entirely predictable—we've got a major city degenerating into lawlessness, with conditions that make bringing medical attention and other forms of relief very difficult.

    That's an accurate description of what's going on in New Orleans now. But it could also describe what might happen in the aftermath of say, a dirty bomb or a biological, chemical, or nuclear attack. Of course there are some differences. But think of the similarities in what would look like an adequate response. Where is the fleet of helicopters? Where are the plans to press gang every bus in a 500-mile radius? Where are the airlift-ready hospitals, water sanitation plants, and tents? Where are the air drops of non-perishable food?

    These things are costly. But considering all the talk we've heard over the last four years about the imminence of such a terrorist attack, the constant jiggering of threat level indicators, and the billions supposedly spent on homeland security, you'd think we'd have a plan. But there's only one conclusion:

    There is no plan.

    It's time to feel the love

    | Thu Sep. 1, 2005 4:31 PM EDT

    Here is a sampling of what some conservatives are saying about the situation in New Orleans:

    On reading about New Orleans' well-known multiculturism:
    "I was going to donate a few buck but after hearing that I think I'll go buy a pizza instead."

    On the city's poor:
    "These people have no room to complain. They have not lost anything! For the most part they have been living off the government for years already."

    Some religious wisdom:
    "Sometimes God helps those who help themselves."

    On the chaos:
    "Enjoy it, liberals. Hope you're proud."

    On a homeless man viewing his dead loved one on the street:
    "[He] belongs to that cohort of useless able-bodied males who couldn't think their way out of a paper bag if left on their own."

    On being trapped in 20 feet of water:
    "You were told...everyone must evacuate. So take your bitching somewhere else."

    "And there are those 'refugees' who will claim lack of transportation ('I couldn't afford to fix the car") or resources ('can't afford no tank of gas") standing on rooftops and balconies waving at rescue copters while smoking $5/pk cigarettes and leaning on TV satellite dishes."

    It would be nice to say that the above views are held by a small minority of Americans, but it would not be true. Louisiana is a poor state. New Orleans is a poor city, albeit a beautiful and exciting one. Decades of local and state corruption have done little to help the people who need the most help. As a citizen of Louisiana and a former long-term citizen of New Orleans, I can attest to that corruption and its consequences: bad housing, bad schools, crime, and poverty.

    So now that New Orleans' worst fears have come true, the people--those who are still alive--who have suffered for so long at least have all of this unsolicited compassion and wisdom to get them through the crisis.


    More Finger-Pointing, Please

    | Thu Sep. 1, 2005 3:56 PM EDT

    In a post below, Charles points out that it's not inappropriate to play the blame game over Hurricane Katrina right now. I agree; in fact, it's entirely necessary, and I'd like to see more of it. Consider this sentence buried at the end of a Times today, without elaboration: "Efforts to add backup power generators to keep them all running during blackouts have been delayed by a lack of federal money." Okay, so let's have dollar figures, figure out who's responsible, and see how many people are affected, so that everyone can know how decisions in Washington can literally make a life-or-death difference. The hurricane will eventually fade from people's minds; the time to draw the relevant connections is now. It's possible to offer sympathy for those in New Orleans, donate to the Red Cross, and still figure out why this all happened.

    The thing of it is, most of the time when Congress is fiddling with numbers in the budget, it's impossible for voters to get any firm sense of where money goes, or how it actually impacts people's lives in real and concrete ways. The Republican-run Congress knows this perfectly well; earlier this year, for instance, the GOP leadership held separate budget votes on cutting taxes and cutting spending, aware that if people got a sense for how tax cuts drain the public coffers, and a sense for where the money goes and how it actually affects real human beings, they might be a little less prone to aspersions cast on "big government" in the abstract. So it goes with Katrina. People need to know exactly how political decisions—like President Bush's longstanding efforts to dismantle FEMA and stock the agency with political cronies—affect people, and that can best be made clear right now. It's the only way to have any hope of getting the important policy questions right in the future.