IT'S NOT JUST ABOUT THE FALSE POSITIVES

Sat down for a dinner and a nice chat with Thomas Nephew and his lovely family tonight (really felt like summer -- pool party and all!).

I accused him, unfairly, in retrospect, of being too evenhanded with this post on the Annie Jacobsen, post-9/11 Syrian El Mariachi hysteria story. What I should have said is that, at the end of the day, I think that Thomas's post needs to be read in conjunction with David Neiwert, here. False positives are an important side-effect of public hysteria -- recall, for example, all of the sightings of supposed WWII Nazi saboteurs on the east coast, when in fact less than twenty ever landed and they were apprehended (without much public help) before they could do any damage. But it's important to remember historical examples of the systematic effect of public hysteria aimed at particular racial or ethnic groups. Nothing good can come of it, as Neiwert points out with reference to Japanese internment.

We live in a fear-drenched culture. Seems to me that one should work to limit that fear, or at least not spread it. Neiwert has some advice:

[T]he reality is this: It's extremely, extremely unlikely that you will witness real terrorists in action, whether merely "warming up" or actually carrying out a plot. Suspecting someone merely because they are a different color or are acting in a way you think is unusual is almost certainly a leap of logic based in prejudice and false stereotypes.

Of course, genuinely suspicious activity should be reported. But even then, it's important to keep your feet on the ground and not stir up any unnecessary fearfulness, either in yourself or in others around you. Recognize that the authorities will in fact address your concerns and investigate anything you report, and it's best to let them do so. Whatever you do, don't leap to assumptions based on nameless fears and stereotypes.

The real point of this story -- or at least Malkin's approach to it -- was to once again beat the "racial profiling" drum in an effort to paint liberals as responsible for terrorist violence. This may be fun sport for the political literati on the right, but I really don't see how it makes anyone a whit safer. (Not counting the effect of cementing one's livelihood as a scourge of fuzzy-headed liberals, of course.)

YAY

What a grand idea (linking to this article). Note, however, the relatively relaxed work schedule of central Denver's bike commuters:

The center will be open 6:30 a.m. to 6:30 p.m. Monday through Friday and 10 a.m. to 5 p.m. on weekends.

Bike parking at the suburban Maryland metro stations on the red line is spotty: Medical center is good if exposed (and you can't cut through the campus any more, I gather, because of the new security fence), Bethesda is not so good, Grosvenor seems pretty good unofficially (people lock their bikes to the railing in an underground tunnel), but I'm not sure about official parking.

Not sure about dowtown. By September at the latest -- once I have a job, that is -- I'll be able to report more fully on this topic. Stay tuned.

LARRY KRAMER'S NEW BOOK

Just ordered Larry Kramer's new book, The People Themselves: Popular Constitutionalism and Judicial Review. An earlier draft of part of the book can be found here (PDF).

It's recommended by Lawrence Solum and by William at Southern Appeal. Howard Bashman links to a review from Judge Richard Posner in TNR, here.

I'll probably have some more to say about this book later. I liked the draft that chapter linked above. In the context of a constitutional system that rests on popular sovereignty, there is always going to be something attractive about constitutional understandings that a) rely on popular knowledge and b) offer an alternative to current, dominant understandings as they are entrenched in particular institutions. The attempt to retrieve earlier, non-professionalized constitutional understandings is a good thing, in general, in my opinion.

William at SA is right that professional legal education tends to induce suspicion of popular constitutionalism-type arguments. Legal scholars tend to be very comfortable with judicial supremacy. There are some notable exceptions (Mark Tushnet and Sanford Levinson come to mind). My sense is that political scientists are more open to this kind of argument than lawyers -- if political scientists can work through their own professional biases, which often teach them that law is fundamentally a mystifying gloss on power relations.

BHOPAL

From the Guardian (here)

India's supreme court has ordered the government to distribute money held in the bank to more than half a million victims of the Bhopal gas tragedy who have been waiting 20 years for compensation.

Legal wrangles have left destitute most of those who suffered injury in the world's worst industrial accident, but yesterday the court ruled that money held in the Bank of India since 1989, currently worth £174m, must be paid out.

In December 1984, tonnes of a toxic gas leaked from a pesticide plant owned by Union Carbide in the central Indian city of Bhopal, killing 3,800 people almost immediately. Since then, campaigners claim, more than 20,000 people have died from related illnesses and, of the approximately 520,000 people exposed to the poisonous methyl isocyanate gas, some 120,000 remain chronically ill.

See also the Deccan Herald (here):

Without fixing a deadline, a division bench comprising Mr Justice Shivaraj V Patil and Mr Justice B N Srikrishna asked the Welfare Commissioner, appointed under the Bhopal Gas Disaster (Processing of Claims) Act 1985, to distribute the money among the claimants and give a report within three months.

I'll post links to the order once I find it.

FRENCH LAW BLOG

Revue de l'Actualité Juridique Française.

STATE SUPREME COURT WEBCASTS

Rory Perry noted recently that eleven state supreme courts have webcasts. His list is here.

ORPHEUS SHRUGGED

And the passengers shivered in horror. See here (linking here).

Great posts, but what's a "squiff"?

MANNING ON RELIGION AND POLITICS

From a section of the 1798 manuscript of The Key of Liberty. This passage was left out of the 1799 manuscript; Merrill and Wilentz argue that he deleted these and other passages for fear of running afoul of the censorship practices that flourished in the climate of the Alien and Sedition Acts:

Instead of preaching about and praying for officers of government as infallible beings, or so perfect that we ought to submit to and praise them for all they do (when in fact they are all our servants, and at all times accountable to the people), they ought to teach their hearers to be watchful of men in power, and to guard their own rights and privileges with a jealous eye, and teach them how to do it in a constitutional way.

. . .

Ministers have it more in their power to turn the minds of their hearers to right and wrong than any other order of men. It had been the general practice of all arbitrary governments to prostitute religion to political purposes, and make a handle of this order of men to mislead, flatter, and drive the people by the terrors of the other world into submission to their political schemes and interests. Consequently, the ministers ought to be watched and guarded against above all other orders, especially then they preach politics.

Merrill and Wilentz edition, 175-6.

GREENBERG ON COURT APPOINTMENTS

David Greenberg has a solid piece in WaPo on the "obvious" (his words) influence of political ideology on the Supreme Court nominations process, here. Greenberg gives a thumbnail sketch of some high-profile controversial court appointments and surveys the reasons why the nominations process has become so politically contentious in the past few decades. Here is Greenberg on the early history of appointments:

[U]nacknowledged partisanship was not the norm for court appointments in earlier eras. In the nation's first century, senators were deeply involved in the appointments, often objecting to a president's nominees for unabashedly political reasons. Between 1789 and 1894, 22 of 81 presidential Supreme Court nominees failed to reach the bench. They were either rejected, withdrawn or left unacted upon by the Senate. The reasons senators gave were sometimes baldly political. For example, George Washington's nomination of John Rutledge to be chief justice in 1795 foundered because Rutledge opposed the newly negotiated Jay Treaty with Great Britain. Nathan Clifford, James Buchanan's choice for the bench in 1858, was rejected for being too pro-slavery. And radical Senate Republicans beat back Ulysses S. Grant's effort in 1870 to place on the court Ebenezer Hoar, who had opposed the impeachment of Andrew Johnson.

In case the Jay Treaty reference strikes you as odd in the context of partisanship, here is a passage that I came across last week, from The Key of Liberty: The Life and Democratic Writings of William Manning, 'A Laborer,' 1747-1814, edited by Michael Merril and Sean Wilentz:

Manning started writing "The Key of Liberty" in response to the prolonged public controversy over Jay's Treaty. Signed in 1794, the treaty settled a number of outstanding issues between Great Britain and the United States on terms many American s thought humiliating. Antitreaty forces organized furiously to block its implementation, even after the U.S. Senate voted its formal approval in June 1795. Seizing upon a constitutional ambiguity, the treaty's opponents in the House of Representatives threatened to withhold the funds necessary to carry out the treaty's terms. The Federalists counterattacked by having local organizers flood the House with protreaty petitions, while proadministration papers warned of an impending war with Britain unless the treaty was carried into effect. Under the onslaught, House Republicans who had any political weakness whatsoever faced heavy public and private pressure. The tie-breaking vote in favor of the treaty was cast by a member of the Democratic Republican opposition, Frederick Muhlenberg of Pennsylvania, chairman of the Committee of the Whole. Early in the controversy, he had received a warning from the Federalist father of his prospective daughter-in-law that 'if you do not give us your vote, your son shall not have my Polly'; after the vote, he was stabbed by his brother-in-law, a Republican hothead. (118)

GELPI ENVIRO PANEL WEBCAST

Georgetown has made available a webcast of the GELPI Supreme Court environmental law panel that I discussed here.

NLRB DECISION ON GRAD STUDENTS

Three GW Bush appointees to the National Labor Relations Board ruled last week that graduate teaching and research assistants at Brown University are not employees for the purposes of the National Labor Relations Act's protection of collective bargaining rights. A press release from the NLRB on the decision is here, and the decision itself is available here as a PDF file. The decision overturns a unanimous NLRB decision from a mere four years ago (the NYU decision, here).

The opinions themselves give a good introduction to the dispute over TA unionization. The majority opinion repeats the university administrators' line that unionization will interfere with educational decisions and impair academic freedom. The dissent counters that such interference would come as a surprise to the students and faculty at the many universities (mostly public) that already have TA unions. The majority argues that the educational relationship between TA and university outweighs any employment relationship that might be present. The dissent focuses on the realities of the employment relationship. The dissent is particularly good on the subject of recent trends in university reliance on teaching assistant labor.

I don't want to be uncharitable, but the majority seems to have little interest in the function of labor law. They seem to view it as a collection of information about congressional views on categories of relationships between people rather than as an attempt to reduce labor conflicts. For the majority, the relevant question is whether TA's have a primarily "economic" or a primarily "educational" relationship to the university; if it's the latter, then the administrators win, because educational relationships are not covered by the rules.

In contrast, the dissent seems to indicate that the function of labor law is to provide a regularization of existing disputes that are characterized by the unionizing participants themselves as labor disputes. It's the disputes themselves that matter, not the formal relationship categories that Congress has helped create. ("Helped create," because even the majority itself argues that congressional silence in the face of NLRB decisions can be indicative of congressional intent. This is a dubious proposition, probably more attractive to advocates than to those who study Congress.) The statute exempts some relationships for policy reasons, to be sure, but the overall function of the act in question is to give legal regularity to disputes that already exist on the ground.

The dissent correctly notes that the majority's ruling is not going to help regularize those disputes. Here are two key passages from the dissent, footnotes omitted:

The question [. . .] is whether the collective efforts of these workers will be protected by federal labor law and channeled into the processes the law creates. Given the likelihood that graduate students will continue to pursue their economic interests through union organizing—even those who live the life of the mind must eat—there are powerful reasons to apply the Act and so encourage collective bargaining to avoid labor disputes, as Congress envisioned. The prospect of continued labor unrest on campus, with or without federal regulation, is precisely what prompted the Board to assert jurisdiction over private nonprofit universities in the first place, three decades ago.

. . .

[The majority's decision] leaves graduate students outside the Act’s protection and without recourse to its mechanisms for resolving labor disputes. The developments that brought graduate students to the Board will not go away, but they will have to be addressed elsewhere, if the majority’s decision stands. That result does American universities no favors.

One final thing that is particularly interesting in this decision, to my mind, is that the majority argues -- and for aught I know sincerely believes -- that university teaching assistantships have not changed in any significant fashion since the 1970s, or at least in any fashion that ought to change how the Board itself interprets the relevant statutes. ["For aught I know?" You've been reading too much William Manning, buddy --Ed.] According to the Republican members of the Board, it seems, "following the law" means rejecting "industrial era" concepts and replacing them exclusively with analysis that the Board itself developed from 1975 until 1999 -- but not a year later. Figure that one out.

The Yale Daily News has an article here, and NYT has an article here.

GW's appointees to the Board are Chairman Robert Battista, Ronald Meisberg, and Peter Schaumber. Two Clinton appointees (Liebman and Walsh) dissented.


MORE: See the AFL-CIO's press release, here. For some pithy commentary, see also Chris Bowers at MyDD here (against the ruling), Evan at The Scope here (ditto), and QD at Southern Appeal here (for the ruling).

BIODIESEL

Take a look at Biodiesel Blog and the Biodiesel Livejournal page. As our vehicles push through their second 100K, we're thinking about what's next for our four-wheeled transportation needs. Biodiesel is definitely on the table. At least for me.