The (In)Famous Vietnam War Professor Case

Preface
By my junior year this debate case was more stale than a dead horse stuffed with old chestnuts. But that didn't stop me from running it against increasingly inexperienced opponents. In the wise words of Vin the Retard, "A win's a win."

While I am almost entirely responsible for the case's overuse, you can blame James McDonnell and Seth Yohalem for coming up with the idea, which is based on a discussion in Tuesdays with Morrie, which I have yet to read. I have no respect for my elders.

The case was only called tight (it's not!) on two occasions, unsuccessfully of course. I ran it opp-choice once; they picked the wrong side.

Can you beat it?

The Case
We're taking you back in time to the Vietnam War and putting you in the position of a liberal college professor who is opposed to the war. The government has instituted a military draft, but college students are legally exempt from it. Some professors have decided to give their students all A's in order to prevent them from failing out and to protest the war. We think this is a bad form of protest. We propose that you give your students the grades they academically deserve.

I. Your Academic Obligations

• As a professor, academic integrity and effective education matter a lot to you, even if they're not your paramount concerns.
  

A. Fairness

• Grades are only meaningful if they indicate academic merit. Rewarding success and failure equally undermines the grading system and has harmful consequences. Keep in mind that institutions will treat your grades as legitimate. Your students – some of whom don't even deserve a diploma – will have an unfair advantage over others in the grad school and job markets. They will take positions that others deserve and are presumably more qualified for.

B. Student Incentives

• Grades motivate students to study and work; without them, you're simply less able to educate.

C. Class Quality

• Bad students will be attracted to your classes to get free A's (either after you announce your policy or after the word gets out). This harms the entire class' educational experience (class size, quality of discussion, etc.).

II. The Social Consequences of Giving All A's

• Even if your grading policy only directly affects a few dozen students, it has important moral implications.

A. Unjust Discrimination

• No lives are saved on either side; there's a draft either way. The issue is whether your students should be saved at the expense of those who will be drafted in their place.

• On a basic moral level, college students don't deserve a second chance out of the draft when they haven't earned it. Student draft deferment is a privilege, not a birthright; students' lives shouldn't be given intrinsic preference over the lives of others. You shouldn't effectively use others as human shields for failing students who don’t deserve to be in college.

• Moreover, colleges now are largely socially and racially discriminatory. The people who will be sent to war in your students' place are more likely to be poor minorities who never even had a chance of getting into college. As a liberal, you should be particularly opposed to perpetuating such discrimination.

B. The Anti-War Cause

• One of the points of a random draft is for society to more equally bear the cost of war. But when college students are kept out of the war no matter what, their generally privileged parents won't have as much of an incentive to protest. People with clout won't be as fired up when the sons of the disadvantaged are dying for them, so policymakers can more easily justify a prolonged war. Don't perpetuate the war by further shielding elites from its reality.

• You need to appeal to the masses in order to change social consciousness. If you abandon your academic integrity and preach to the leftist choir, the bulk of society will write you off as an extremist. You should use your credibility as an academic to write to Congress, speak out, and join larger demonstrations. Don't become just another campus radical. Don't become fodder for the Right.

He Must Have Tenure

A friend observes: "This is not necessarily the endorsement one would like: 'Mike DuHaime, a Republican consultant who managed Rudolph W. Giuliani’s campaign, said Mrs. Clinton was making the right decisions in trying to make the most of her strengths.' I love how he's still in the punditocracy."

The wheels on the Clinton bus come off, off, off. Off, off, off. Off, off, off.

Plug - Akhil and Vikram Amar on the Electoral College

"History, Slavery, Sexism, the South, and the Electoral College" (part 1)

"A Critique of the Top Ten Modern Arguments for the Electoral College" (part 2)

"How to Achieve Direct National Election of the President Without Amending the Constitution" (part 3)

The Constitution According to Akhil Amar - Class 5

Class 5 (Chapter 5)

Sample quote: "Hamilton was a total boy genius. So it wasn't entirely an insult to Hilary Clinton when I compared her to him."

The Side Effects of Ritual

Oscar Chase thoroughly and concisely spells out the ways in which ritual, particularly in the American trial, helps legitimize dispute resolution processes and reinforce social values. I'd like to build upon his discussion by considering a few other ways in which legal ritual can both serve and disserve a society.

To begin with, meaningful legal practices are sometimes rendered ritualistic by repetition, in that they become divorced from the ideas they are supposed to represent and take on hollow lives of their own. As far as I know, this has become true to some extent of Miranda warnings; their ubiquity seems to have swallowed their meaning. I recall a friend of mine mentioning that he read that arrestees in other countries sometimes demand, on the basis of American TV shows, that police officers read them their Miranda rights. Leaving aside what this says about the perception of American law among certain foreigners, it's obvious that these arrestees haven't really thought about the purpose or content of the Miranda ritual. One can't help but be amused at the implicit suggestion that police officers are granting suspects certain rights by speaking them into being. And one can't help but be troubled at the prospect that the understanding of the average American arrestee, recidivists excluded, is not much more accurate or sophisticated. After all, how many suspects "waive" their rights to silence and counsel by acting on their natural impulses to deny or explain their behavior? More to the point, how many could explain more or less what Miranda entitles them to after suddenly hearing the list of rights formulaically recited by an antagonist in a stressful situation? I know I was confused when I first heard a policeman (on TV) forcefully declare "You have the right to remain silent!" to an uncooperative suspect; curiously, it sounded like a command, and I wondered whether suspects would be inclined to talk back to the assertion of authority. My purpose is not to criticize the Miranda decision but rather to observe that ritually induced ordinariness, in leading people to take practices for granted, can lead them to misconstrue, or fail to construe, them. Sometimes this unconsciousness is essential to the power of a practice, as in the various devices for elevating and depersonalizing the American judge, but sometimes it undermines a practice's purpose. In such cases the difficulty is avoiding ritualization and the mere formalisms that it begets.

Similarly, consider how ritual can mask the full significance of a practice or at least divert attention from it. Sally Falk Moore provides an excellent example of this in her analysis of the broader social function of Chagga disputing and dispute resolution. She observes that the common practice of instigating and "settling" a series disputes stemming from one underlying incident creates, or rather entrenches, social "losers," who are eventually forced to relinquish their land, a very scarce resource in Chagga society. These losers tend to be individuals who were already in disadvantaged positions in the Chagga social structure and were thus prone to being cheated, manipulated, or simply dissatisfied. Naturally, such people are more disposed to envy, ill-will, and illegal activity, which further degrades their status and credibility. This makes them ideal targets for accusations and conflicts culminating in ostracism and land-grabbing. Of course, the Catch-22 of the Chagga underclass is not a recognized phenomenon. Moore writes: "It is important...to recognize that the long-term significance is not at issue when a hearing is under way. From the point of view of the elders, what they are doing is instance-by-stance settlement." Thus the ritual confinement of Chagga dispute resolution to the matter at hand serves to ensure that harsh realities remain unspoken and perhaps unseen. Furthermore, the practice of morally blaming the loser assuages the conscience of the prevailing party in these typically internecine conflicts. Surely there are those who are aware of these inequities, but they cannot give institutional voice to their concerns. The upshot is that reform is impeded. It is worth exploring the parallels, however general, between the deficiencies of the Chagga system and those of our official dispute resolution mechanisms. For example, fairly strict rules of evidence – particularly those designed to protect litigants from the shortcomings of juries – provide that many considerations are off-limits in court despite being de facto relevant and, if known, inevitably taken into account. The "case or controversy" requirement, along with other judicial canons, narrows, sometimes artificially, the scope of decisions and can make a constitutional question the elephant in the courtroom. As Chase argues, concerns along these lines are partially behind the modern rise of alternative dispute resolution in the U.S.

Lastly, I'll note that ritual can distance people from the law, particularly those who are already socially removed from the elites who generally shape and practice the law. For instance, the rhetoric and conventions of appellate argument and decision-making surely engender more confusion than reverence among many observers, litigants themselves not excepted. This is not to suggest that it's worth sacrificing sophistication for accessibility, just that there's a nontrivial trade-off. An esoteric and formal legal system makes many people feel as if the rule of law, a hallmark of democracy, is rule from on high – from a different world, in a different language, and with a different way of seeing things. There's something to Chase’s observation that "[u]nlike the Roman Catholic Church the American courts have yet to abandon Latin in their regular public discourse."

The Value of "Going Meta"

This week's highly theoretical readings in my Culture and Law seminar impressed upon me the practical benefits of consciously attempting to scrutinize our social institutions from an outsider's perspective. Needless to say, the Western academic tradition has facilitated a great deal of good by enabling and encouraging honest inquiry within our culture and practices. If anything, as frequent charges of relativism attest to, the problem is that there are too many acceptable answers; some sectors of academia seem dogmatic in their repudiation of dogmatism, seeing their enemy everywhere but within. But it's far better for a society to err on the side of generating too much criticism. The same goes for theory: at worst critical distance results in opacity or incoherence; at best – despite disavowing a reformist agenda – it engenders reforms that would not otherwise have been embraced or even contemplated. At least, this seems like a strong possibility to me. (Perhaps most Western legal and ethical paradigm shifts are really primarily the result of something else, such as the correction of factual mistakes – e.g., unlike Descartes we know that animals feel pain – or changes in material circumstances – e.g., the women's suffrage movement in the U.S. caught on when women became instrumental to the World War I effort.) I will discuss two ways in which an external examination of our legal culture can lead us both to better understand, and to better, ourselves and our society.

First, taking the perspective of a cultural outsider can enable us to discern the values that our institutions and practices are actually serving. Often we overemphasize the symbolic meaning of traditions that retain significant functional force. In turn, our unreflectiveness enables these traditions to have greater sway over us. For instance, I suspect that most people, legal professionals included, take for granted the pervasive ritualization of judicial practice. They may simply accept or dismiss most instances of it as historical holdovers, mere evidence of law's fundamental inertia – or stodginess. After all, doesn't a Latin maxim say the same thing as its English translation? Aren't judges' robes just a formality, like wearing a suit? The problem with such presumptions, of course, is that they only tell part of the story. In order to fully understand the purpose of our rituals, it helps to make an effort to view them through an a-cultural lens. The idea is to dispel their ordinariness by analogizing them to practices that are alien to us, as Oscar Chase does by treating the American fact-finding process as oracular. This makes it easier for us to subject our evidentiary system to the same analysis as, say, the benge oracle. In doing so we can discover counterintuitive parallels between the procedures and appreciate the cultural contingency of the distinctions – however real – between them. For example, I suspect that most laypeople believe that the overriding purpose of the adversarial jury trial is to get at the truth, given the primacy of rationality and empiricism in our secular culture. This is not to say that the average person isn't at least somewhat cynical about whether trials live up to this ideal; the point is that people are conditioned to emphasize this dimension of the trial and judge it exclusively on these terms. Because people are inclined to have faith in their traditional, celebrated institutions, we probably overstate the accuracy of jury trials and underappreciate the fact that they serve other important values. Accordingly, most proposals for trial reform probably suffer from a myopic failure to explicitly weigh increased accuracy against the potential disservice to other, less apparent goals. (At college debate tournaments, one of the proposals that I liked to argue for was that the American justice system would be better off if jurors were trained, professional civil servants instead of random citizens. Most of my opponents also rested their case on truth-seeking; the only "cultural" argument that they commonly made is that jury duty is educational.) Cultural analysis facilitates the consideration of these other goals; I was struck by Chase's example that "the introduction of the jury in a society in transition from totalitarianism would be profoundly expressive of a new era of popular participation in government. It would symbolize the relocation of authority and could even change the way individuals conceptualize their relationship to authority." In short, the cultural study of law seems to me to be a step beyond legal realism. Legal realism reveals that judicial adherence to precedent is often illusory; cultural analysis explains why this is so.

Second, we can ask whether, and to what extent, the principles implicit in our legal culture are worth upholding. Consider David Kertzer's claim: "Successful ritual...creates an emotional state that makes the message uncontestable because it is framed in such a way as to be seen as inherent in the way things are...beyond debate." Similarly, Chase argues that even judicial dissents reaffirm the oracular status of law because, like majority opinions, they claim to speak with the true voice of the law, as opposed to that of their author; they claim that the majority failed to divine the real meaning of the law in question. Paul Kahn also explores this theme: "[The] myth of recovery operates in every overruling of a precedent: without a conceptual space for novelty, every new act must be made to seem a recovery....To interpret the law is to make explicit what has been there all along." Reformers have criticized these conventions as rendering law too arcane, artificial, and abusable. Cultural analysis sharpens such critiques by highlighting the underlying purpose of these conventions, which is to legitimize the law in the eyes of its primary audience: the people, not the practitioners. We can then question whether this purpose is being served. One source of doubt is that people seem to increasingly feel as if the esoteric and formalized (and resource-intensive) nature of legal practice is a barrier to redress, not a basis for reverence. As Jerome Bruner suggests, legal proceedings that sanitize and stylize people's stories in order to assuredly fit them into legal categories alienate people who want to have their voices heard; appellate courts' dry and laconic recitations of facts are an obvious example. Thus Bruner maintains that the practice of pleading civil complaints in narrative form "remains Everyman's portal into the arcane realm of law," a bastion of "the common sense of justice." Along the same lines, Chase argues: “Doubt about the accuracy and hence the validity of modern dispute resolution oracles helps explain the rise of alternative dispute-resolution techniques, particularly mediation, that promote agreement as preferable to judgment." Maybe the short version of the story is that modern media have exposed more people to legal proceedings, people haven't liked what they've seen (gamesmanship, "technicalities," formalism, "wrong" outcomes, veiled politics), and they've lost faith in the oracle; they no longer want to subject themselves to it. This is in line with Kahn's speculation that "it is quite possible that the rule of law is already a dying practice." Cultural analysis, despite being a purely descriptive enterprise, can help us save it.

The Constitution According to Akhil Amar - Class 4

Class 4 (Chapter 4)

Hope

"While the people retain their virtue, and vigilance, no administration, by any extreme of wickedness or folly, can very seriously injure the government, in the short space of four years." - from Abraham Lincoln's First Inaugural Address

Virtue and vigilance.

Vote Obama.

Laws and Sausages

"Think of the Constitution the way you might think of a machine designed to make sausages. We want a sausage-making machine to provide us with food, but we also want to ensure that the sausages the machine produces are wholesome and untainted by disease. Because we do not want to have to inspect each and every sausage to see if it is wholesome, we want a machine whose design gives us confidence that it produces good sausages." - from Randy E. Barnett, "The Relevance of the Framers' Intent"

Selective Abortion

Preface
This post is largely culled from an old email I wrote. (Now it can be ignored by the public.) Please regard any deficiencies in reasoning as youthful indiscretions - but don't hesitate to crucify me for them.

Body
I once faced the following debate case: There's an average American family with one young kid. The wife is pregnant, and the couple is certain that the baby will be seriously autistic. Should they abort?

I unhesitatingly picked yes. I maintain that position, but it got me thinking about how the decision to carry a fetus to term should be regulated. To begin with, it's clear to me that abortion should be mandatory in some cases. For instance, one shouldn't be allowed knowingly to have a kid with infantile Tay-Sachs. People often seem to lose sight of the fact that child-bearing is far from a self-regarding action. I also think it's unquestionable that abortion should be discretionary otherwise. To me, the interesting, and intertwined, issues are (1) what information parents should be allowed to have access to in making the decision to abort (information is the engine of discretion); and (2) how robust the mandatory provision should be (should it encompass AIDS? Deafness? Dwarfism?).

My initial inclination was that parents should be able to learn whatever they want about the fetus. I suppose I had three reasons for favoring fully-informed discretion. First, because the parents will presumably raise the child, it's better for both them and the child if the child doesn't possess traits that the parents find objectionable. Second, it's best for parents to be able to deal with cases at the cusp of the mandatory provision. Because it's so severe to require an abortion, the mandatory provision should err on the side of leniency; doctors should be required to satisfy stringent criteria, subject, of course, to state review. Consequently, the provision won't apply to fetuses that almost all pro-choice parents think should be aborted (e.g., deaf ones); these parents should be able to step in. Finally, given that it's impossible to bar access to all fetal information, there are reasons for favoring equal access. This isn't an argument about a black market in fetal trait screening (not that it wouldn't exist). What I mean is that parents inevitably have some idea of how likely a fetus is to possess a trait, depending on the nature of the trait (e.g., two genetically deaf parents have a good idea of the likelihood that their offspring will be deaf, whereas fat parents have a slimmer notion of how fat a given child will be inclined to be). Why allow the vicissitudes of genetics to determine the extent to which parents can select for or against certain traits?

Now I'll attempt to argue against my intuitive stance. In response to my first reason above, consider that the harms of parental expectations would be exacerbated if parents could engage in selection, however crude, of children's traits. For an extreme example, parents who abort whenever the child would be insufficiently athletic (assuming this could be screened for) might put even more pressure on their kids to be good at sports. Another plausible concern, for what it's worth, is that kids with particularly bad traits might resent their parents for not aborting them. Turning to the second point - the heart of the debate - maybe it's simply bad if parents can be selective. Maybe the world is better off with "healthy" numbers of short, socially awkward, and depressive people (especially if these traits are correlated with beneficial ones, such as hyperintelligence and being Woody Allen). One may retort that children shouldn't be born worse off for the good of society, but the implicit parallel to punishing innocent people doesn't necessarily hold. Children who would have been aborted had their parents been aware of their impairments aren't being made worse off, and their lives have some value. The point is that personal utility is largely relative. Sure, some conditions, such as chronic pain, are just bad (and are largely addressed by the aforementioned mandatory provision). But other conditions are only bad if one acquires them, not if she's born with them (e.g., being of slightly below average intelligence, or even, arguably, deafness). In light of this distinction, the issue can be framed as whether it's acceptable for parents to be able to shift and/or compress traits' bell curves via selective abortion. Shifts are often pointless because of relativity (e.g., if everyone were an inch taller, the only benefits would be minor and incidental, and may be offset). Of course, this point is harder to defend when it comes to traits for which meaningful absolute gains are possible (e.g., suppose everyone were smarter). Regarding compression, imagine a world in which almost all men are between 5'11" and 6'3", or in which almost everyone's IQ is between 110 and 130 (apparently a fair amount of people believe in the pop psychology notion that too much intelligence necessarily precludes healthy social development). Compressing the range of a trait can be sterilizing and risky. We can be bereft of meaningful diversity - and its often unforeseeable benefits. Perhaps this would be the primary consequence of widespread, fully-informed selective abortion.

Almost

"It's almost a given that other players will rank lower when Tiger gets first place...." - Slate

The Astronomy of Joanna Newsom

In "Emily," Ys 1 (2006), Joanna Newsom writes: "[T]he meteorite is the source of the light, and the meteor’s just what we see; and the meteoroid is a stone that’s devoid of the fire that propelled it to thee. And the meteorite’s just what causes the light, and the meteor’s how it’s perceived; and the meteoroid’s a bone thrown from the void, that lies quiet in offering to thee."

Poetic, yes. But is it true? The American Astronomical Society has yet to issue a statement. Naturally, I abhor a vacuum; allow me to fill this void.

According to the venerable Dictionary.com, "meteorite" has two definitions, the first of which is understandably paramount, the second of which may be a common-law-esque ratification of enduring misuse: (1) "a mass of stone or metal that has reached the earth from outer space; a fallen meteoroid;" (2) "a meteoroid." A "meteoroid" is "any of the small bodies, often remnants of comets, traveling through space: when such a body enters the earth's atmosphere it is heated to luminosity and becomes a meteor." Accordingly, a "meteor" is: (1) "a meteoroid that has entered the earth's atmosphere;" (2) "a transient fiery streak in the sky produced by a meteoroid passing through the earth's atmosphere; a shooting star or bolide."

This does not bode well for Ms. Newsom, even within her conceptual universe. Of these three terms, the best candidate for "the source of," or "just what causes," "the light" is "meteoroid." A meteoroid is the only non-contingent entity - a good property for something that's a source and a cause. This usage is rendered decisive by an analysis of the other two terms. A fallen meteorite (pardon the redundancy) is the only thing that could accurately be described as a "stone" or a "bone" that, having completed its atmospheric journey, has lost its heat and luminescence. And Newsom is quite correct, albeit vague, in referring to a meteor as "just what we see," or "perceive[]."

What to make of this? On the one hand, we could view Newsom's cosmic confusion as evidence of what she herself has proclaimed: "[T]here is nothing would help me come to grips with a sky that is gaping and yawning." But this is unsatisfactory, in light of her inquisitiveness, her meticulousness, and the presence of her astrophysicist sister, Emily, who provided backing vocals on the eponymous track. The better, or at least more appealing, interpretation is that she was being endearingly ironic. After all, before launching into her first quasi-chorus about the meteoric distinctions, she reminisces to Emily: "You taught me the names of the stars overhead, that I wrote down in my ledger. Though all I knew of the rote universe were those Pleiades, loosed in December, I promised you I’d set them to verse, so I’d always remember..."

...that the meteorite is no longer in flight, but the meteor is flying free; and the meteoroid is in orbit devoid of occasion for reaching thee. And the meteorite is a stone without light, but the meteor's how it was seen - when the meteoroid was thrown from the void and fell burning in offering to thee.

I prefer Newsom's cosmos.

Which One Was Logjammin'?

From my Criminal Procedure casebook: "The Court found that the affidavits in the instant case [New York v. P.J. Video, 475 U.S. 868 (1986)] contained more than enough information to conclude that there was a 'fair probability' that the movies satisfied the statutory definition of obscenity (i.e., predominant appeal to prurient interest in sex, specific sexual conduct presented in patently offensive manner, and no serious redeeming social value). Justice Marshall, joined by Justices Brennan and Stevens, dissented. He argued that the affidavits described only some excerpted scenes, and not the entirety of each film. So in his view the magistrate could not have determined that the sex acts pervaded the films or that the films as a whole lacked artistic value; while the affidavits were pervaded with sex acts, it did not necessarily follow that the films were obscene. The majority's response to Justice Marshall's argument was that one of the affidavits, for example, described five hardcore sex scenes, taking place in a 93 minute film; therefore the sheer volume of sex acts depicted in the such an [sic] affidavit established at least a fair probability that there was no time left for the film to include any matters of redeeming social value."

The Constitution According to Akhil Amar - Class 3

Class 3 (Chapter 3)

Note that classes after the first have consisted predominantly of Amar responding to students' mandatory discussion board posts, which need not be about the week's reading. Hence the disjointedness of my notes.

Sample quote from today's class: "People look at Barack Obama and ask whether he's Lincoln, JFK, Martin Luther King, Bobby Kennedy...these are all very good comparisons. They look at Hillary and ask, 'Is she Nixon?'" I guess Amar supports Hillary.

Some Thoughts on the Sources of Originalist Constitutional Interpretation

It's important to distinguish among different originalist sources of potentially authoritative interpretations of the constitution, namely the framers, the ratifiers, and the people.

My view is that the framers' understandings of a constitutional provision – considered either individually or, somehow, collectively – should not be regarded as inherently authoritative. Why should an article by Publius be afforded any more legal weight than one by Posner? Each is the product of a private citizen in a private capacity. Of course, Publius (all three of him) acted in a public capacity, but it's still problematic to extrapolate his intentions from his writings and to give those intentions special authority. A judge must read, say, the Federalist Papers as either the law review of their day or as a window into the minds of the public Publius. The former reading only deserves as much weight as a (really good) law review article, and the second reading has two difficulties of its own. First, the Federalist Papers are probably not the best, and are certainly not the only, evidence of Publius's intentions. A judge who wants to figure out what Madison, Hamilton, and Jay had in mind when they drafted a clause would be advised also to consult sources such as records of convention debates and personal correspondence. (But how often do judges purporting to uphold framers' – or even a framer's – intent actually play historian?) Second, framers' intentions in a public capacity are still private. Analogously, if a state legislature had Judge Posner draft its antitrust statute, that state's high court shouldn't resolve antitrust cases by asking "what would Posner do?" The people, at least in theory, consented to the governors who appointed the court and to the legislature that confirmed the appointments and passed the law; they didn't consent to what Posner, however wise, thinks the law means.

I've held off on mentioning the difficulty of ascribing intentions to a group because it also applies to the second historical source in question: the state ratifying conventions. The important difference is that these conventions, unlike the framers, legitimated the constitution. They spoke for "we the people" and gave the constitution the force of supreme law. Thus it seems that their understandings of the constitution actually carry some authority. But how should these understandings be conceptualized? The main problem is that different delegates had different reasons for supporting, and different interpretations of, the same provisions. And the ratifying conventions didn't publish statements of understanding representing the views of at least a majority of delegates. In short, ratifiers' intent seems to have the same pros and cons as legislative intent, plus the absence of official ratification history. Notably, the Federalist Papers, given their influence in the debates over ratification, are quite relevant to inferring ratifiers’ readings of the constitution. What I argue against above are the leaps that some people make, for example, from what Madison thought a provision meant to how the provision should be interpreted. Even worse are the naked assertions we sometimes encounter along the lines of "The framers would be shocked to learn that the First Amendment protects X." These are easy targets, but they underscore the importance of distinguishing between the authoritativeness of the framers and of the ratifiers.

Lastly, there are the people. More precisely, I mean the populace at large during the founding (or during the passage of a given amendment), through which one can discern the common usage of terms. Needless to say, the people at large aren't an independent source of legal authority, but their use of language can shed light on what they, through the ratifying conventions, thought they were consenting to when they ordained and established the constitution. For example, consider Professor Amar's discussion of the meaning of "commerce." He writes, "'[C]ommerce' also had in 1787, and retains even now, a broader meaning referring to all forms of intercourse in the affairs of life, whether or not narrowly economic or mediated by explicit markets."

I hope this is a decent starting point for thinking about what to make of Professor Amar's extended history lesson – aside from the fact that it's eye-opening and intrinsically interesting.

On Underlying Similarities in Legal Procedure in Different Cultures

There are indeed underlying similarities in legal procedure in different cultures, including cultures that have had no contact with each other. This is not surprising, since humanity's fundamental genetic similarity has given rise to universal human impulses, such as reciprocity and revenge. The aim of law is to channel and restrain these impulses in order to advance the interests of society. Law enables greater social harmony than would the mere interplay of moral instincts, because law systematically subordinates the interests of individuals to groups that are larger than those that individuals would naturally care about. Imagine how fractured Melanesian society would have been if people had free rein to value the interests of others in proportion to their kinship. Or consider the fact that primate societies never expand much beyond the bounds of readily discernible relatedness. These examples illustrate that law – a rational, collective instrument of social organization – stands in contrast to moral instincts – which are intuitive and genetically driven – although it stems from them. (For reasons I need not get into, natural selection has almost always, if not always, acted on individuals, not groups, and therefore has produced instincts that favor one's genes, not one's society. Hence the cross-cultural incidence of ineradicable familial bonds and kin-preferencing altruism.)

Common human impulses have given societies common problems in need of legal solutions, which have themselves presented common challenges. One of these is how to ensure respect for the law. In what follows, I will discuss some of the similar ways in which the Azande and the Melanesians addressed this difficulty. To begin with, consider the use of ritual and myth to justify the law to those on whom it is imposed, thereby encouraging them to obey it for its own sake. Bronislaw Malinowski distinguishes law from other social obligations in that it is considered qualitatively more binding. He writes, "The rules of law stand out from the rest in that they are felt and regarded as the obligations of one person and the rightful claims of another." Of course, one of the reasons why this is so is that the law is backed by force, but not just any force will do if the law is to be both feared and loved. This is important because it is obviously not in a society's interests for people generally to obey the law out of fear alone. If people don’t also "love" the law – if they don't perceive its coercion as legitimate and its requirements as consistent with those of morality – then more "fear" is necessary to ensure a given level of social order. Needless to say, this is costly, risky, and oppressive. Accordingly, the Melanesians and the Azande, like perhaps all peoples, used ritual and myth to ensure that justice was done and seen to be done. As Oscar Chase observes, these practices both arose from, and reinforced, traditional cultural commitments. In the case of the benge oracle, the ritual itself was the means of dispensing justice, and acceptance of its "verdict" came naturally to the Azande. Thus the oracle was an ideal decision-making procedure for Zande law to systematize and formalize. This is not to suggest that the Azande first developed the oracle and then consciously decided to make it the cornerstone of their legal system; the process, like the development of the common law, was surely an organic one. The point is that the oracle engendered respect for the law because the Azande had mythological faith in it, and they augmented and entrenched its power through rules governing who could use it (men only), when it should be used (to resolve important, speculative questions), and what to do when one disagreed with it (it was never deemed wrong, only corrupted or misused). Regarding the Melanesians, Malinowski explains how, by requiring a certain "semi-commercial transaction" to be performed in the context of a public ceremony, they effectively guaranteed that the parties adhered to cultural values. Such a law seems easily justified as ensuring, by the light of public scrutiny, that people do what they know to be right; it does not, or at least does not appear to, make any substantive ethical demands of its own. In sum, as Chase puts it, "Social construction works best when the effect is unstated and seems part of the natural order of things." Ritual and myth serve these ends.

Another way in which these societies promoted respect for the law, as well as improved its functionality, was by building discretion into the legal process. Malinkowski notes that Melanesian legal rules were "essentially elastic and adjustable, leaving a considerable latitude within which their fulfilment [sic] is regarded as satisfactory." Similarly, Chase describes the Zande "appeals process," which culminated in the "Supreme Oracle" of the king. Naturally, these discretionary procedures enabled the legal systems of these societies to reach more reasonable, and therefore more acceptable, results; after all, the human capacity for rationalization is not quite boundless. There are clear benefits to having discretion within a legal system, primarily that it can be regulated moreso than the extralegal alternatives that would inevitably arise in response to excessive legal rigidity. However, it is arguably beneficial, and at least understandable, for discretion not to be too aboveboard. Perhaps some proponents of the American regime of plea bargaining, responsible for some 98% of all criminal convictions, would take such a position; they may claim that given the practical necessity of extracting guilty pleas, it's better for the average person not to be aware of their incidence and lose faith in the justice system. Analogously, neither the Azande nor the Melanesians fully acknowledged the disparity between law as practiced and law as professed. Through epicycles of rationalization, the Azande sustained their belief in the inherent infallibility of the benge oracle, and the Melanesians maintained that obligatory vendettas were the rule despite being carried out only under exceptional circumstances, in lieu of the more common practice of accepting financial compensation. These illusions, however incomplete, surely induced greater reverence for the law and more aversion to its transgression. Interestingly, Malinowski claims that despite its plasticity, Melanesian law was "systematically circumvented by well-established methods" (emphasis added), namely magical alternatives to the legal process. He does not clearly distinguish these magical alternatives from magical infringements. I want to briefly raise the suggestion that at least some of these alternatives should be regarded as instances of discretion within the Melanesian legal system. After all, both magic and law rested on tradition and procedure, and they do not seem to have been sharply differentiated in the Melanesian mind. There is a meaningful difference between "a system of magic consisting of spells and rites..., which when correctly carried out, is completely efficient in undoing the bad results of clan incest" and "a system of magic to estrange the affections of a woman from her husband and to induce her to commit adultery." Admittedly, both systems encouraged legal violations, but only the former can properly be characterized as remedial, akin to the legally sanctioned demand by a Melanesian clan for money in lieu of blood.

Plug - Station to Station

Station to Station by David Bowie

Plug - Comic Books by the Fed

Free comic books by the Federal Reserve System

A Cultural Anthropologist's Take on Comparative Law

"Whether the adjudicative styles that gather around the Anschauungen projected by haqq, dharma, and adat are properly to be called 'law' or not (the rule buffs will find them too informal, the dispute buffs too abstract) is of minor importance; though I, myself, would want to do so. What matters is that their imaginative power not be obscured. They do not just regulate behavior, they construe it.

"It is this imaginative, or constructive, or interpretive power, a power rooted in the collective resources of culture rather than in the separate capacities of individuals (which I would think in such matters to be, intrinsically anyway, about the same everywhere; I rather doubt there is a legal gene), upon which the comparative study of law, or justice, or forensics, or adjudication should, in my view, train its attention. It is there - in the method and manner of conceiving decision situations so that settled rules can be applied to decide them (as well, of course, of conceiving the rules), in what I have been calling legal sensibility - that the informing contrasts lie. And it is there, too, that the passion of the anthropologist to set local views in local contexts and that of the jurist to set instant cases in determinate frames can meet and reinforce each other."

***

"Taken together, these two propositions, that law is local knowledge not placeless principle and that it is constructive of social life not reflective, or anyway not just reflective, of it, lead on to a rather unorthodox view of what the comparative study of it should consist in: cultural translation....[A] comparative approach to law becomes an attempt, as it has become here, to formulate the presuppositions, the preoccupations, and the frames of action characteristic of one sort of legal sensibility in terms of those characteristic of another....This is, of course, like Englishing Dante or demathematizing quantum theory for general consumption, an imperfect enterprise, approximate and makeshift, as I trust I have proved. But, aside from resigning ourselves to the fixity of our own horizons or retreating into mindless wonder at fabulous objects, it is all there is, and it has its uses."

***

"My concern is with what law is like when what most lawyers, and most anthropologists too, would probably regard as the sine qua non of its existence - 'agreement about the things that are fundamental' - is rather spectacularly absent.

"So far as we, anthropologically-minded lawyers or law-minded anthropologists, are concerned, the issue that faces us is, as I say, how to describe such situations in a usefully informative way; informative both as to them and as to the implications they have for how we need to think about legal processes as a general phenomenon in the world, now that the pieties of natural law, the simplicities of legal positivism, or the evasions of legal realism no longer seem of very much help. It is a matter of talking about irregular things in regular terms without destroying thereby the irregular quality that drew us to them in the first place; as noted before, a most irregular business."

***

"Law, with its power to place particular things that happen - this promise, that injury - in a general frame in such a way that rules for the principled management of them seem to arise naturally from the essentials of their character, is rather more than a reflection of received wisdom or a technology of dispute settlement. Small wonder that it draws toward it the same sorts of passions those other begetters of meanings and proposers of worlds - religion, art, ideology, science, history, ethics, and commonsense - draw toward them." - from Clifford Geertz, "Local Knowledge: Fact and Law in Comparative Perspective"

Big Tuna and Market Failure

There are some interesting comments, if I may say so myself, on this Grobstein post regarding bears and markets (but not bear markets).

For background information, and as a dire warning, you should first read this New York Times article on rising mercury in sushi tuna.