"My law clerks would be wasting 30, 45 minutes, an hour, developing a chronology of events. This thing does it instantaneously.... I’m not strictly relying on an AI tool. … It’s just an extra set of eyes."

Says Xavier Rodriguez, a federal judge in Texas, quoted in "Judges are increasingly using AI to draft rulings and prepare for hearings/A study found over 60 percent of surveyed judges have used AI in their work, even as some experts worry AI’s unreliability could compromise their authority" (WaPo)(gift link).

A study found over 60 percent of surveyed judges have used AI — that is to say, over 60 percent admitted to researchers that they've used AI. I've got to wonder what percent have used AI. How was the question asked? Was it "Have you used AI?"? Because what does "use" mean? Maybe things that aren't really substantive don't count. Maybe it doesn't count if you only rely on things you — that is,  your clerks — have double checked.

"It didn’t have its spark. It didn’t have its distinctive definition in the lines, in the swirls. It just lost — it just lost its oomph...."

"You take the Twombly. I mean, to some people it just looks like fifth grade scribbles. To me it looks like a symphony orchestra."

Said Ronald Perelman, quoted in "Judge Rejects Ronald Perelman’s Claim That His Art Had Lost Its ‘Oomph’/The collector’s holding companies had sued his insurers for $400 million to cover paintings that they say had been damaged in a fire. The insurers said they had survived untouched" (NYT).

The OED traces "oomph" — "The quality of being exciting, energetic, or sexually attractive; energy, vigour" — back to 1937: "With actors, the 'it' quality has to do with their visual personality—sex appeal, magnetism, or whatever you care to call it. Back of the camera, we refer to the ingredient as 'umphh.'" The etymology is "An imitative or expressive formation." I presume what it is imitative of is sexual intercourse.

Meanwhile, you know Cy Twombly — pencil-scribbly things like this:

If the collector sensed oomph and the oomph is now gone — it's like the spark gone out of a love affair — how can he convey his anguish to the judge? His anguish, if any. Who's to believe it ever existed? How can you insure something so ineffable?

We're told law professors are saying we're in a "constitutional crisis," but at what point would they switch to the term "constitutional moment."

One could avoid either term. Even though both terms include the word "constitutional," neither term appears in the Constitution, and I cannot imagine how a real case could hinge on the perception that we are in a "constitutional crisis" or a "constitutional moment." 

But I'm thinking about these 2 terms together because I just listened to today's NYT "Daily" podcast: "A Constitutional Crisis." The phrase was used 23 times, as if we could be convinced by repetition. But convinced of what? 

Michael Barbaro: The phrase du jour, Adam, right now, in Washington, is "Constitutional Crisis." And we come to you as our resident scholar of the law and the courts to understand what A Constitutional Crisis actually is and how you know when you are in the middle of one....

Adam Liptak: I've been talking to a lot of law professors and what emerges from those conversations is that there's no fixed, agreed-upon definition of A Constitutional Crisis. It has characteristics, notably, when one of the three branches tries to get out of its lane, asserts too much power. It often involves a president flouting statutes, flouting the constitution, flouting judicial orders. And it can be a single instance, but it's more typically cumulative. But it's not a binary thing, it's not a switch.

Liptak's been "talking to a lot of law professors," but apparently not to Alan Dershowitz. I highly recommend his "Trump versus the courts: who will win? My legal analysis" (from February 10th):

Alan Dershowitz: I want to be very clear the New York Times had a front page story major story.... All the law professors in the world the entire academy,  all the law professors think there's a horrible constitutional crisis going on. Of course, they interviewed 3 or 4 left-wing anti-Trump law professors. They didn't introduce anybody who would have a neutral view of the Constitution, and they didn't give their readers an honest assessment of the issue. There is no constitutional crisis! Take it from me! I've been study studying the Constitution for close to 70 years now. I know a thing about the Constitution. The United States has a system of checks and balances. That system is designed to prevent constitutional crisis. The Democrats are crying wolf. Schumer screaming out there like a like a mad person about about the Constitutional crisis. People talking about going to the streets and war. No no no no.....

The NYT article he was talking about, published February 10th, was written by Adam Liptak — "Trump’s Actions Have Created a Constitutional Crisis, Scholars Say."

"There are days that I’ve come to my office after an announcement of a case and closed my door and cried. There have been those days. And there are likely to be more."

Said Justice Sonia Sotomayor, quoted in "Justice Sotomayor Describes Frustration With Being a Liberal on the Supreme Court/In a conversation at Harvard, the justice spoke of her despair at some of the court’s decisions, but she urged optimism and a focus on future generations" (NYT).

“There are moments when I’m deeply, deeply sad,” she said, without citing any specific cases. “There are moments when, yes, even I feel desperation. We all do. But you have to own it, you have to accept it, you have to shed the tears and then you have to wipe them and get up.”

"Emil Bove, a defense lawyer, is suggesting that the prosecutors, in their proposed jury instructions, has shifted their theory of the case."

"It sounds like he’s talking about the state election law that underlies the felony business records charges against Trump. Justice Merchan doesn’t seem to agree, but in any case, he says, the prosecution’s proposal for jury instructions holds no weight at the moment. It is only a proposal. 'Just relax,' Merchan tells the defense lawyer, as he continues to argue. Nothing, he signals, has been determined yet. Bove continues to argue. He can tell that the judge is frustrated, but it’s clear that Bove is, too. If he believes that the prosecution changed its theory of the case in these final weeks, it would help to explain why he’s irate."

From the NYT's Live Updates of the Trump trial (free access link).

How can it still not yet be determined what law defines the crime?! 

Is it possible that Justice Merchan said "Just relax" to the defense lawyer because he knows that, in the end, he will hold the prosecution to account for failing to define the crime? I know, it's much more likely that Merchan said "Just relax" because it's irritating to listen to an agitated lawyer, even when, as here, outrage is part of his argument.

ADDED: David French addresses this problem in "The Trump Trial Is Disturbing on So Many Levels" (NYT):

“Justice Sonia Sotomayor said she’s 'tired' and 'working harder than I ever had'.... 'And to be almost 70 years old, this isn’t what I expected.'"

Bloomberg reports on an appearance at UC Berkeley law school. 

"Cases are bigger. They’re more demanding. The number of amici are greater, and you know that our emergency calendar is so much more active. I’m tired,” she said. “There used to be a time when we had a good chunk of the summer break. Not any more. The emergency calendar is busy almost on a weekly basis."...

It's not just the amount of work. After a prompt about how law students feel discouraged, she said:

"I live in frustration. Every loss truly traumatizes me in my stomach and in my heart. But I have to get up the next morning and keep on fighting."

"Law professors report with both awe and angst that A.I. apparently can earn B’s on law school assignments and even pass the bar exam."

"Legal research may soon be unimaginable without it. A.I. obviously has great potential to dramatically increase access to key information for lawyers and nonlawyers alike. But just as obviously it risks invading privacy interests and dehumanizing the law.... At least at present, studies show a persistent public perception of a 'human-A.I. fairness gap,' reflecting the view that human adjudications, for all of their flaws, are fairer than whatever the machine spits out.... Judges, for example, measure the sincerity of a defendant’s allocution at sentencing. Nuance matters: Much can turn on a shaking hand, a quivering voice, a change of inflection, a bead of sweat, a moment’s hesitation, a fleeting break in eye contact. And most people still trust humans more than machines to perceive and draw the right inferences from these clues.... Many appellate decisions turn on whether a lower court has abused its discretion, a standard that by its nature involves fact-specific gray areas. Others focus on open questions about how the law should develop in new areas. A.I. is based largely on existing information, which can inform but not make such decisions...."

Wrote Chief Justice John Roberts, quoted in "Chief Justice Roberts Sees Promise and Danger of A.I. in the Courts/In his year-end report, Chief Justice John G. Roberts Jr. focused on the new technology while steering clear of Supreme Court ethics and Donald J. Trump’s criminal cases" (NYT).

Speaking of humanity, remember when Senator Barack Obama voted against the confirmation of Justice John Roberts because Roberts said "he saw himself just as an umpire"?: "But the issues that come before the court are not sports; they’re life and death. We need somebody who’s got the empathy to recognize what it’s like to be a young teenage mom.... In... 5 percent of cases, you’ve got to look at what is in the justice’s heart, what’s their broader vision of what America should be."

By the way, in literal, as opposed to figurative, baseball, A.I. does a better job of calling balls and strikes.

Judge Duncan's Wall Street Journal column: "My Struggle Session at Stanford Law School."

Link.

Stanford Law School’s website touts its “collegial culture” in which “collaboration and the open exchange of ideas are essential to life and learning.” Then there’s the culture I experienced when I visited Stanford last week.... 

When I arrived, the walls were festooned with posters denouncing me for crimes against women, gays, blacks and “trans people.” Plastered everywhere were photos of the students who had invited me and fliers declaring “You should be ASHAMED,” with the last word in large red capital letters and a horror-movie font. This didn’t seem “collegial.” Walking to the building where I would deliver my talk, I could hear loud chanting a good 50 yards away, reminiscent of a tent revival in its intensity. Some 100 students were massed outside the classroom as I entered, faces painted every color of the rainbow, waving signs and banners, jeering and stamping and howling.  As I entered the classroom, one protester screamed: “We hope your daughters get raped!”

It was a big protest, generated by the real human beings the law school had assembled as its student body, not propaganda on the institution's website. It's real life, like the life experienced beyond the courthouse and beyond the law school, and it's not that polite. You know, it's also not polite to put "trans people" in quotation marks. It's a more polished form of incivility, but law students have long protested about the way law dresses up and glosses over injustice.

"My hearing testimony was forceful and passionate. That is because I forcefully and passionately denied the allegation against me."

Writes Brett Kavanaugh in The Wall Street Journal (not blocked by a paywall):

At times, my testimony—both in my opening statement and in response to questions—reflected my overwhelming frustration at being wrongly accused, without corroboration, of horrible conduct completely contrary to my record and character. My statement and answers also reflected my deep distress at the unfairness of how this allegation has been handled.

I was very emotional last Thursday, more so than I have ever been. I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said. I hope everyone can understand that I was there as a son, husband and dad. I testified with five people foremost in my mind: my mom, my dad, my wife, and most of all my daughters.

Going forward, you can count on me to be the same kind of judge and person I have been for my entire 28-year legal career: hardworking, even-keeled, open-minded, independent and dedicated to the Constitution and the public good....

A good effort at striking the right note. Not too conciliatory.  I'd like to know exactly what were the "few things I should not have said." I'm sure one was to Senator Klobuchar: "You're asking about blackout, I don't know, have you [ever had an alcohol-induced blackout]?" And — after she suggested that he's not had a blackout and "Is that your answer?" — he said "Yeah, and I'm curious if you have." He already apologized for that at the hearing: "Sorry I did that. This is a tough process. I'm sorry about that."

"To think, just a few short weeks ago, we were getting lectured about how unfair, sexist, and racist it was to judge a woman for expressing anger during a tennis game."

Wrote Lyssa in the comments to yesterday's post "The intemperance of the law professors' 'judicial temperament' letter."

I had to go back to see what I'd written about Serena Williams back on September 9th:

I felt that Williams was trying — very hard — to intimidate the umpire. She was actively bullying him. Hey! That reminds me of Trump. People say he's lost it and is raging when he's using a style of emotional manipulation.

As I've already written (somewhere in the Kavanaugh posts and comments) that I think Kavanaugh made a decision — after his calm, bland interview on Fox News — to allow his experience of emotion to be visible during the Senate hearing. He's getting criticized and mocked for letting emotion show, but that doesn't mean he'd have been more successful if he had maintained a stoical front.

As I said, above, about Serena Williams and Donald Trump, I think the emotion is displayed as a means to an end. The emotion isn't completely fake, but it's not out of control. There's real emotion, but it is also performed, with an idea of getting something the emoter wants. We need to be careful not to get conned, so we're right to be somewhat skeptical of those who let emotion show. But everyone's trying to get something they want, and people who suppress their emotion aren't inherently trustworthy.

Someone who truly loses control belongs in a different category. But you have to watch out for the accusation that someone has truly lost control. The accusers — like everybody else — are human beings with a will to get something they want. Sometimes their game is so obvious — like the lawprofs' "judicial temperament" gambit — that no one is fooled (though many are fooled into thinking that others will be fooled, because what they want is for those others to be fooled).

IN THE COMMENTS: Noting my statement, “But you have to watch out for the accusation that someone has truly lost control," Kevin writes: "Because those accusations are civility bullshit." Yes. Thanks for reminding me that this is the "civility bullshit" problem I've written about so many times. Calls for civility — don't get angry and emotional, speak only with cool rationality — are always bullshit. In our present-day American political discourse, it's always an effort to get your opponents to unilaterally disarm. When the tables are turned, and expressing emotion is what the people on your side are doing, you'll vaunt their passion and commitment and scorn your opponents for their bloodlessness.

ADDED: Remember when liberals thought this was exactly what was needed:

The intemperance of the law professors' "judicial temperament" letter.

I see over 1,000 names on this anti-Kavanaugh letter, many of them names of people I know. I've been with a lot of law professors over the past 4 decades, and the best law professors I have known have routinely expressed disbelief that the judicial opinions they read state the real reasons why the judges decide the cases the way they do. And I don't believe the law professors when they say they oppose Brett Kavanaugh because they have concerns about his "judicial temperament."

From the letter, which I'm reading in the NYT:

We regret that we feel compelled to write to you, our Senators, to provide our views that at the Senate hearings on Sept. 27, Judge Brett Kavanaugh displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land.

The question at issue was of course painful for anyone. But Judge Kavanaugh exhibited a lack of commitment to judicious inquiry. Instead of being open to the necessary search for accuracy, Judge Kavanaugh was repeatedly aggressive with questioners.

He was confronted with devastating allegations that were vague and uncorroborated. He knows his own life, yet he was supposed to be committed to "judicious inquiry" about it?! He was supposed to be "open"?! He was supposed to act as though he were absorbing the facts for the first time, like a judge deciding a case? Who wrote this letter? Why did so many law professors sign this text?

Even in his prepared remarks, Judge Kavanaugh described the hearing as partisan, referring to it as “a calculated and orchestrated political hit,” rather than acknowledging the need for the Senate, faced with new information, to try to understand what had transpired. 

But the hearing really was partisan! Yes, the Senators were in a tough spot, since they were trying to figure out what happened, but Kavanaugh knows what he himself has done. Kavanaugh was supposed to be supportive of the predicament the Senators got themselves into and not defend himself vigorously?

He was under a vicious attack, and he knew it was unfair and cruel — unless he was lying. If he was lying, then that's why he shouldn't be on the Court. But this "judicial temperament" idea is designed to work even if he was telling the truth.

So we need to read this letter in light of the professors' intent. Imagine an innocent Kavanaugh, under an outrageous attack and subjected to a horrendous ordeal. He expresses indignation and challenges his accusers. But he was supposed to remain calm and be deferential to the Senators, and because he didn't — and for no other reason — he doesn't belong on the Court. Who believes that?!

Instead of trying to sort out with reason and care the allegations that were raised, Judge Kavanaugh responded in an intemperate, inflammatory and partial manner, as he interrupted and, at times, was discourteous to senators....

Why would Kavanaugh need to "to sort out with reason and care the allegations that were raised" — he knows what happened in his own life — and why would 1,000 law professors say that he should have?!

"SNL's trailer, titled 'God is a Boob Man,' spoofs the just-released 'God's Not Dead 2'...."

WaPo explains... and I needed that explanation. I'd never even heard of "God's Not Dead 1." So... now I'm prompted to blog that SNL spoof, which you may have seen:



And here's the "God's Not Dead 2" trailer:



WaPo's columnist, Amber Phillips, says:

"God's Not Dead 2" is a sequel to the hit 2014 movie where a Christian college student defends his faith against a liberal philosophy professor. The wildly successful movie made $62 million off just a $2 million budget.

Reaction to SNL's skit was pretty much what you'd expect it to be — either positive or negative, with hardly anything in between. Religious protections vs. gay rights is the social battle of the moment right now as lawmakers grapple with how to govern around a changing definition of marriage and family — against some people's wishes. And as such, there is hardly any gray area for either side to find common ground.

My wistful dream is that the common ground would be arrived at through an understanding the law of the First Amendment — Free Speech, Free Exercise, and the Establishment Clause — and the various controversies that courts and legislatures have worked through over the years. I get a hopeless, sick feeling seeing pop culture material like the 2 videos I've embedded, which I think have a great effect on how people think about legal issues, which I do sometimes take the time to try to explain here. The "SNL" thing mocks what "God's Not Dead 2" presents with melodramatic seriousness. Both are funny in their own way but also annoying if you actually care about the problems of religious freedom, which involve coordinating a lot of conflicting interests and could benefit from more open-minded, educated thinking from the citizenry. But the entertainment industry takes advantage of the existing conflicts and ignorance and, for its own benefit, further hardens minds and separates people.

And I'd just like to add that I can't believe writers of a courtroom drama stoop to the level of having a judge tell a lawyer that he's holding him "in contempt" and the lawyer accepting the charge because he, in fact, feels contempt. I guess there's always somebody hearing that hoary riposte for the first time.

The politics of getting 17-year-olds the right to vote in the Ohio primary.

On March 8th, the NYT said "Bernie Sanders Sues Over Ohio Rule Barring 17-Year-Olds From Primary," but yesterday's NYT article — "Bernie Sanders Praises Ruling Allowing 17-Year-Olds to Vote in Ohio" — began "A group of 17-year-olds in Ohio has successfully persuaded a state judge to allow them to vote in the state’s primary on Tuesday."

Who brought the lawsuit? Sanders or a group of teenagers? Answer: Both. The March 8th article says that Sanders filed a suit in federal district court. (He argued that the Ohio Secretary of State Jon A. Husted, had "'arbitrarily' discriminated against young black and Latino voters by not allowing 17-year-olds who will be 18 by the general election to vote in Ohio’s primary next week.")

But the decision that was announced yesterday came from a state judge. The article about the victory at the trial court level in that case eventually refers to the federal court case. A decision in that case is expected on Monday (and I'll bet that the federal judge abstains in deference to the state court proceedings). There was duplicative litigation, presumably to increase the publicity about the issue and the likelihood of some useful action from a court.

The primary is this coming Tuesday, so how is this litigation supposed to play out sensibly? There will be an appeal from the state court's decision, and the state appellate courts will have to act very quickly, perhaps visiting disappointment on the teenagers at the 11th hour, just as they were envisioning their sunny jaunt to the polls for the very first time.

Young people are being encouraged to feel that they are being treated unfairly, discriminated against, and I expect the primary day media to be filled with fresh-faced idealistic 17-year-olds yearning to participate in democracy. They've got to fill the airwaves with something on Tuesday, as we're so interested in what's happening but there are no results to report yet. How many 18- and 19-year-olds will feel inspired to go down there to the polls and vote on behalf of their oppressed fellow teenagers and cast that vote for Bernie, the old man who cares about the youngest of the young voters? And even older voters will get a charge out of the fight against that "'arbitrar[y]' discriminat[ion] against young black and Latino voters."

Oh, it's a fine brew of law and politics. Drink up, children! Feel the Bern!

Lawprof scholarship examining whether lawprof scholarship is politically biased indicates that lawprof scholarship by liberals slants leftward...

... but lawprof scholarship by conservatives does not slant rightward.

Professors who are Democrats... have an average article ideology of -2.67 with a 90% confidence interval of -3.13 to -2.21. Using a t-test, we can say that this is statistically different from zero (p-value < 0.00). Professors who are Republicans... have an average article ideology of 0.17 with a 90% confidence interval of -0.72 to 1.10. For these professors, we cannot reject the possibility that the true net ideology of their articles is zero (p-value = 0.72). In other words, our data suggest that Democrats in our sample do not write articles that are on balance neutral, but that Republicans in our sample may write articles that are on balance neutral. ...

Now, one might wonder whether the study itself is biased, and somehow sees what is conservative as neutral, but let's assume something real has been observed and ask why:

The most plausible explanation is that if the dominant ethos in the top law schools is liberal or left-wing, then Republicans are likely to conceal their ideological views in their writings. Republican professors might fear that scholarship that appears conservative may be rejected by leftleaning law review editors, and disparaged or ignored by their colleagues, which will damage their chances for promotions, research money, and lateral appointments. This would explain why even [those who have not made contributions to either political party] tilt left. Republicans could suppress their ideological views by avoiding controversial topics, taking refuge in fields that have little ideological valence, focusing on empirical or analytical work, or simply writing things that they don’t believe.

That sounds likely, except to the extent that it assumes that political beliefs are deep and fundamental to a person's being. I would assume that people care most fundamentally about acceptance in the group and personal success, in which case, you'd take on the politics prevalent within your environment. It's like religion, isn't it? How many of the exemplars of the faith really believe it? Most are responding, emotionally, to what they need — acceptance, love, money — and fending off what they fear — rejection, contempt, poverty. 

"Donald Trump's reprehensible call to bar Muslim immigrants from entering the United States tracks an exam question I’ve been giving my immigration law students since Sept. 11."

"Would such a proposal be constitutional? The answer is not what you might think..."

Unless you've read all the many other op-eds dotted about mainstream media, but this one, by Temple lawprof Peter J. Spiro, caught my eye because I need to write a couple of law school exams and I have never — in 30+ years — reused a question. I've never even taken the same question and tweaked it with the aim of convincing myself I wasn't reusing it.

Anyway. Professor Spiro does a fine job of explaining the Supreme Court's "extreme deference" to Congress and the President under what's known as the "plenary power" doctrine:

It dates back to the 1889 decision in the Chinese Exclusion case, in which the court upheld the exclusion of Chinese laborers based on their nationality... More recent decisions have upheld discrimination against immigrants based on gender and illegitimacy that would never have survived equal protection scrutiny in the domestic context. Likewise, courts have rejected the assertion of First Amendment free speech protections by noncitizens. Nor has the Supreme Court ever struck down an immigration classification, even ones based on race. As late as 1965, a federal appeals court upheld a measure that counted a Brazilian citizen of Japanese descent as Asian for the purposes of immigration quotas. In the context of noncitizens seeking initial entry into the United States, due process protections don’t apply, either....

The courts have justified this constitutional exceptionalism on the grounds that immigration law implicates foreign relations and national security — even in the absence of a specific, plausible foreign policy rationale. The 1977 Fiallo case, for instance, involved a father seeking the admission of his out-of-wedlock son from the French West Indies — hardly the stuff of national interest.

Indeed, contrary to the conventional understanding, President Trump could implement the scheme on his own, without Congress’s approval. The Immigration and Nationality Act gives the president the authority to suspend the entry of “any class of aliens” on his finding that their entry would be “detrimental to the interests of the United States.”

Spiro goes on to say that the Constitution has meaning beyond what the courts are willing to detect and enforce. As he puts it: "Clear popular consensus can establish constitutional norms, with or without the courts."

Mr. Trump’s plan has triggered an uproar across the partisan divide. Perhaps a religion-based immigration bar may be consistent with court-made doctrine. But it doesn’t reflect our deeper, broadly assimilated understandings of the Constitution.

But is there clear popular consensus? I guess we should at least wait for the next round of polls, because Trump is immensely popular, at least with a sizable enough sector of Americans to wreck the clarity of the picture of popular consensus. Politicians and commentators are trying to lead a chorus of shaming, but Trump may be saying what many are thinking but don't want to be caught singing out.

This "constitutional norms" idea is self-canceling. Trump can't do what he's proposing unless he gets elected, and he won't be elected unless people support him, and if people support him then those constitutional norms that forbid what he's proposing don't exist. 

Jonathan Rauch doubles down on the supply-of-women argument for why polygamy is not like same-sex marriage.

Here's my earlier post, "I've got a problem with the supply-of-women argument for distinguishing polygamy from same-sex marriage," poking Rauch (and Richard Posner) for relying on the social interest in preserving more women for men. They seem to think women are "some kind of natural resource to be conserved for the benefit of males." Like there needs to be a bag limit.

Rauch now has another article, going on at greater length and still failing to take account of the problem:

[W]hen a high-status man takes two wives (and one man taking many wives, or polygyny, is almost invariably the real-world pattern), a lower-status man gets no wife. If the high-status man takes three wives, two lower-status men get no wives. And so on.

This competitive, zero-sum dynamic sets off a competition among high-status men to hoard marriage opportunities, which leaves lower-status men out in the cold. Those men, denied access to life's most stabilizing and civilizing institution, are unfairly disadvantaged and often turn to behaviors like crime and violence.

In this view, women are society's tools, to be used to tame men. If some men are successful in winning too many women — if, after getting one woman, they can continue to take additional women out of the pool of potential wives — then there are fewer women left over to do the dirty work of civilizing the less desirable men, men who, undomesticated, run wild and do destructive things.

Rauch does pause to look at it from the female perspective:

"I don't know why you so-called traditionalists don't dissolve your legal marriages now that the definition of 'marriage' has been changed and corrupted."

"Words no longer have meaning. In protest and on principle, dissolve your unnatural government 'marriage.' Your 'traditional' Christian marriage is no longer protected by the government. Protected from the gays and now the polygamists. Why not do the honorable thing? — dissolve your legal marriages, go back to your church and reaffirm your vows. That's the only real marriage now, right? Otherwise, how can you continue to endure this indignity?"

Meade challenged.

The problem with what I said 9 years ago about how easy it is to distinguish polygamy.

The post I put up yesterday afternoon and left at the top of the blog until now links to something my son John wrote quoting something I wrote long ago. John was quoting the much-linked Politico article that went up on the day the Supreme Court announced its new same-sex marriage decision, "It’s Time to Legalize Polygamy/Why group marriage is the next horizon of social liberalism." From that article:

Now that we’ve defined that love and devotion and family isn’t driven by gender alone, why should it be limited to just two individuals? The most natural advance next for marriage lies in legalized polygamy . . . 

9 years ago, I was responding to something Charles Krauthammer had written, which referred to something he'd written 10 years before that saying "it is utterly logical for polygamy rights to follow gay rights." The distinction I made — in "Distinguishing gay marriage and polygamy" — had to do with economics:

Legal marriage isn't just about love, it's an economic arrangement. Having the state authorize your union is not the same thing as having your friends and neighbors approve of you and your religious leaders bless you. It affects taxes and employee benefits -- huge amounts of money. A gay person with a pension and a health insurance plan is incapable of extending those benefits to his (or her) partner. He (or she) can't file a joint tax return. That's not fair. A polygamous marriage, however, puts a group of persons in a position to claim more economic benefits than the traditional heterosexual couple. That doesn't appeal to our sense of fairness.

The law doesn't assess how much two people love each other. Two persons of opposite sexes can marry for all sorts of reasons. If there were a device that could look into their souls and measure their love, we wouldn't accept the outrageous invasion of privacy it would take for the government to use it. Excluding gay couples from marrying does generate the complaint that society does not sufficiently respect homosexual love, and by harping on this point, proponents of gay marriage activate their opponents who think that's a good thing.

But it's not all about love and who respects what. It's also about economics. And in that dimension, it's easy to distinguish polygamy.

The problem I see today is that the Supreme Court stressed love, not economics. And the political spin coming off the case is #LoveWins. I would have decided the case based on equal protection and left love out of it. Constitutional law limits what government can do to people. Government has no positive obligation to boost egos or bestow dignity. But government chose to use the status of marriage as a basis for many of its actions in the realm of things that properly belong to government (like taxing and spending). At that point, equality is required.

But the Court didn't take that route. It said something about Equal Protection that no one — as far as I've seen — can even understand. I'm going to reread the majority opinion, and I'll get back to you, but it's plain to everyone who reads the opinion in any depth that it rested on ideas about substantive due process. These ideas were not clearly expressed. There was a lot of windy verbiage that I want to parse. But the public's consciousness is off and running without any careful parsing from me or anybody else. It's flying under the flag #LoveWins. It's love, love, love, love, love.



We're not on the economics slope. We're on the love slope. That's more slippery. Who knows where that might go? And who knows why the majority chose (what we're perceiving as) the love concept? Maybe economics didn't seem to have the heft to justify unsettling old beliefs. Maybe the Court wanted emotions to soar, wanted to spark contagious empathy, and government taxing and spending seems too grubby to pull us away from the traditional meaning of marriage. Profundity could only be traded for profundity. That's not how I would have done it. I would have stressed that we are only talking about the limits on government, what government can do to individuals.

But that's not what the Court did.

"New computer-driven research suggests that Supreme Court justices are getting grumpier, according to a new study by scholars at Dartmouth and the University of Virginia."

"This analysis was based on the percentage of positive words versus negative words. In addition, modern justices tend to produce more words and have a lower grade level than their predecessors."

Oh, jeez. Here we go again: If you use more periods and fewer semicolons, the computer will conclude that you are writing at a lower grade level. That's garbage. See how I just wrote a sentence on a dramatically lower grade level than the previous sentence? "Computer-driven" doesn't mean sophisticated. It just means that lots of data was crunched. Things that could be counted and that the researchers wanted to count were counted on a grand scale.

The authors included 107 justices through 2008 and ranked them based on negative words (“two-faced,” “problematic”) and positive words (“adventurous,” “pre-eminent”). The high court’s first chief justice, John Jay, ranked number one with a score of 1.55 percent friendliness rating. Numbers 103 through 106 are current members of the court, including Anthony Kennedy, Clarence Thomas, Stephen Breyer, and Samuel Alito. Antonin Scalia earned the number 98 spot with a score of -0.69 percent friendliness.

Quite aside from whether we should assess a judge's friendliness/grumpiness based on which words he puts in the formal justification of his legal decision that we call an opinion, who determined which words should count as positive and which as negative? Why is "adventurous" considered positive — especially as you look at material that was written over a period of 200+ years? Some of the older meanings of the word are negative: "Full of risk or peril; hazardous, perilous, dangerous... Prone to incur risk; excessively venturesome; rashly daring" (OED). If a justice in 1800 called an argument "adventurous," was he saying something nice?

I suspect that negative words proliferate when justices indulge in writing long dissenting opinions. That doesn't necessarily mean they are grumpy or unfriendly. It might have more to do with feeling free to express oneself in somewhat emotive language, and that may have become more the style as the years wore on. If we feel free to express emotion, we give the language analysts more emotive words to count, and then they can calculate a ratio of positive to negative. But how can we compare that to what was written long ago, when judges may have favored concealed or processed emotion? There will not only be less to count but also a kind of caginess and subtle sarcasm and irony that the computer can't recognize. To take an example from a famous old case, what would a computer do with "the judges of the State courts are, and always will be, of as much learning, integrity, and wisdom as those of the courts of the United States (which we very cheerfully admit)"?  "Cheerfully" is such a positive word, but, in context, it's no, and there's certainly no reason to think that the Justice who wrote it was exuding any sort of friendliness.

But this is the kind of study that gets reported, the kind of is-Scalia-mean stuff the public loves.

How do lawprofs know when they are caving to the feminist activists?

Harvard lawprof Jeannie Suk has an article in The New Yorker called "The Trouble with Teaching Rape." This struck me especially hard because the other day, when I was cleaning out my office, I encountered a folder of notes written 24 years ago, when I taught a law school seminar on rape. ("You're teaching a whole seminar on rape?" That's the first line of the notes.) I'd just read these notes last night — after not looking at them for more than 20 years — so it was interesting to see how different everything was back then and whether my attitude had changed.

I was teaching a seminar on rape because I was immersed in a writing project that had grown out of my experience teaching Evidence. All the evidence casebooks have a section on the "rape shield rule," which limits inquiry into the alleged victim's "other sexual behavior." (This project became "The Lying Woman, The Devious Prostitute, and Other Stories from the Evidence Casebook,” 88 Northwestern Law Review 914 (1994).") If you taught Evidence, you'd have to go out of your way to avoid rape, and the books — highlighting the threat to the criminal defendant's rights — presented the women as liars. 

Professor Suk teaches Criminal Law (not Evidence), so the subject is less about who's telling the truth and more about the act and the state of mind that constitute a crime.  She reports that the teaching "environment" has changed in "the past couple of years" and students "seem more anxious... about approaching the law of sexual violence."

When I teach rape law... I focus on cases that test the limits of the rules.... We ask questions like: How should consent or non-consent be communicated? Should it matter whether the accused realized that the complainant felt coerced? What information about the accused and the complainant is relevant to whether or not they should be believed? How does social inequality inform how we evaluate whether a particular incident was a crime? I often assign students roles in which they have to argue a side—defense or prosecution—with which they might disagree.

These pedagogical tactics are common to almost every law-school topic and classroom. But asking students to challenge each other in discussions of rape law has become so difficult that teachers are starting to give up on the subject. 

Suk doesn't say whether she's had difficulty. She shifts from describing what sounds like her own stellar teaching to references to generic teachers who somehow just can't hack it anymore. Exactly what is happening in those classes? I'd like to hear something specific. Maybe those professors who are giving up never did a very good job with the topic, the students are speaking up about the professors' fumbling, and those professors jumping at the chance to skip the topic altogether.

When I went to law school, more than 30 years ago, the substantive criminal law class didn't focus on any particular crimes. We spent the whole semester on actus reus, mens rea, and a few defenses (like impossibility). There was a section of the book on particular crimes, and we might have dipped into murder and theft, but that was the kind of material you could learn quickly in your bar review course. It wasn't the meat of criminal law. I think if you go back and figure out the history, rape got into the criminal law course because law professors caved to the political argument that not to teach it was to say that it's not important.

That was never true, and if the activists demand that rape be taken out and the professors cave, they are, ironically, paradoxically, uncaving.