Where Crimson Dreams Die

Harvard's football team had quite a run from the beginning of last season until today. Riding a series of improbable second-half comebacks, the team went undefeated and untied last year for the first time since 1913. This year's squad lost tough games by one point to Lehigh and three points to Northeastern, but remained unbeaten through the first five games of its Ivy League schedule. Led by prolific (if injury-prone) senior quarterback Neil Rose and wide receiver Carl Morris (who was last year's Ivy League player of the year, and who is a serious contender for this year's Walter Payton Award as the best Division 1-AA player in the country), Harvard relied on a potent offense to overcome an inconsistent defense. Today's game with Penn was, for all intents and purposes, the Ivy League championship game. Alas, Harvard's offense turned the ball over repeatedly, and the defense crumbled in the second quarter, resulting in a 44-9 Penn win.

Penn plays at Franklin Field, a handsome if rundown stadium at the southern edge of the Penn campus. Now probably best known for its featured role in M. Night Shyamalan's 2000 film, Unbreakable, the stadium was home to the NFL Philadelphia Eagles as recently as 1970 and continues to host the Penn Relays. I first visited Franklin Field in the early 1970s, when my father (a Harvard alum) and I made the drive from northern New Jersey to watch the Harvard-Penn game with my father's law school roommate (a Penn alum). Harvard usually won those games, and handily—Penn at the time rivaled Columbia as the Ivy League doormat.

Since my first semester at college in 1982, however, Franklin Field has been a nightmare for Harvard. That November, Harvard and Penn were tied for the Ivy lead going into the ir November matchup. Penn jumped to a 20-0 lead, but Harvard roared back with three fourth-quarter touchdowns to take a late 21-20 lead. And there things stood as the final seconds ticked away, with Penn lined up for a game-winning field goal. Harvard blocked the kick, time expired, and the Crimson celebrated. Ah, but there was a flag—a Harvard defender had nudged the Penn kicker well after the field goal attempt was away. Penn got another chance, the kick was good, and that was it. Harvard did gain a share of the Ivy League title the following week by crushing Yale, 45-7, while Penn lost, But the sting of the loss to Penn remained. And Harvard hasn't won at Franklin field since. Some of the games, like today's, have been blowouts; some have been agonizingly close. But the results are always the same: Franklin Field is where Harvard football dreams come crashing down.

No, No, No!

According to this New York Times article about a potential six-player deal between the Colorado Rockies and the Florida Marlins, the Mets are considering shipping shortstop Rey Ordonez and outfielder Jeromy Burnitz to the Rockies in exchange for pitcher Denny Neagle. Not that getting rid of Ordonez (who is only as good as his glove, and thus was pretty awful last year) and Burnitz (who, whatever success he may have had in Milwaukee, has now pretty well demonstrated that he can't hit in New York) would be a terrible thing. But Denny freakin' Neagle?! The man had some success until his trade to the Yankees in mid-2000, but since then his e.r.a. has been well in excess of five. Neagle, who won eight and lost eleven last year, is due to make $9 million in 2003. The Mets need many things for next season, but they do not need another aging, overpaid, underperforming player. The roster has plenty of those already.

Now, someone like Tom Glavine would be more like it.

Was It Osama?

I've noted with interest the apparently forming consensus that it was indeed Osama bin Laden's voice on the tape turned over to al Jazeera this week. I find the consensus particularly interesting in light of Robert Siegel's interview with Egyptian political scientist Mamoun Fandy on Wednesday's All Things Considered. Fandy, who has interviewed bin Laden in the past, was quite confident that the voice on the tape was not bin Laden's—not only did the intonations differ from bin Laden's in some ways, but the nature of the rhetoric on the tape was not consistent with bin Laden's previous pronouncements. I haven't seen any similar skepticism about the new tape, nor have Fandy's points been addressed in any of the articles suggesting that the tape is authentic. Is Fandy someone whose views don't merit consideration? What is the basis for the apparent confidence that the tape is genuine?

Judicial Activism Revisited

With the reconvening of the Senate Judiciary Committee (which yesterday approved the nominations of Michael McConnell and Dennis Shedd for appellate judgeships), and with the publication of University of Chicago law professor Cass Sunstein's op-ed in the New York Times last Saturday, the blawgs have been full of discussion about the meaning of judicial activism this week. I took part myself on Tuesday.

Fritz Schranck (whose blog I've somehow missed until now—onto the blogroll he goes) argues that this is all a fruitless exercise. He writes:

The term is nearly bereft of meaning by itself. Instead, a careful identification of the user's own political perspective is first required before any understanding can be poured into the phrase.

At one level, he's certainly correct. There is an unmistakable tendency, especially in the popular media, to use "judicial activism" as a label with which to tar the judicial reaching of results of which the speaker or writer does not approve. Thus, conservatives happily attacked constitutional decisions of the 1960s and '70s as judicial activism, and liberals now use the same term to describe decisions cutting back on the scope of those rights, or cutting back on Congress's ability to legislate. As thus used, calling someone a judicial activist essentially means no more than calling that person a bad judge, with "badness" defined by the ideological preferences of the speaker or writer.

In this sense, "judicial activism" serves essentially the same role that "out of the mainstream" does—it says as much (or more) about the declarant as it does about the subject. The law professors' letter in opposition to the McConnell nomination (described by Howard Bashman here), for example, repeatedly describes Prof. McConnell as "outside the legal mainstream." That's an assertion that probably would have been so had he held his current positions thirty years ago. As one of my colleagues pointed out while the letter was circulating for signatures, though, it's hard to describe as "outside the mainstream" views that appear to be shared by at least two, and sometimes more, of the current members of the United States Supreme Court. The letter thus seems like just another example of a common phenomenon, one that is certainly well evident in the blogosphere: people assume that their own views are both correct and widely shared, and they thus dismiss those with different views as fringe extremists.

Stuart Buck seeks to add substance to the notion of judicial activism, citing University of North Carolina law professor William P. Marshall's description of seven modes of judicial activism. By thinking about the different ways in which a court can be considered activist, Stuart argues, the Rehnquist Court can be seen as just as activist as the Warren Court in some ways while being quite conservative (in the non-political sense of the word) in other ways.

That's an interesting and important observation. And yet to a certain extent it begs a question, as does Prof. Marshall's description of seven forms of activism. As Sam Heldman observes in a comment at Stuart's site, most of the forms of activism identified by Prof. Marshall have mirror images that could also be defined as activist. One of Prof. Marshall's forms of activism, for example, is "remedial activism":

the use of judical power to impose affirmative ongoing affirmative obligations on the other branches of government or to take governmental institutions under ongoing judicial supervision as a part of a judicially imposed remedy.

School desegregation would be an example of this form of activism, as would some instances of prison reform. And by this standard, the Supreme Court's recent refusal to permit remedies against state governmental entities for violations of the federal anti-employment discrimination statutes certainly would not be considered activist. But, as Sam suggests, it is easy to craft a mirror-image form of activism, which Sam labels "refusal-to-remedy activism": the refusal to extend remedies (in this case, legislatively-created remedies) to state entities. By this standard, the Court's recent 11th Amendment jurisprudence would be seen as profoundly activist. Again, it all goes back to starting points.

This may be why Howard Bashman offered such a narrow definition of judicial activism last weekend. Howard defined judicial activism as "the actions of judges who do whatever is necessary to rule as they personally prefer, regardless of what existing law provides." That kind of activism, everyone ought to be able to agree, is undesirable. It is, however, also fairly rare (although charges of this form of activism have been leveled against Texas Supreme Court Justice (and Fifth Circuit nominee) Priscilla Owen, charges that I am not at this point in a position to evaluate). And it is certainly difficult to evaluate in nominees who have not already spent time on the bench.

I do still intend to return to one point from Howard's post, and to suggest a number of ways in which appellate judges can significantly shape the direction of the law without engaging in outright rejection of existing law. But with regard to charges of judicial activism, I think Sam is probably right: we need fewer shrill adjectives like "activist," and more reasoned discussion about the merits of different legal arguments.

* In making this point, Sam echoes legal realist scholar Karl Llewellyn, either consciously or unconsciously. Prof. Llewellyn wrote, in a still-well-regarded 1950 article in the Vanderbilt Law Review, that the canons of statutory interpretation did not provide neutral adjudicative tools, because for each canon pointing in one direction there existed an equal and opposing canon leading to an opposite conclusion. Some of the details of Prof. Llewellyn's article have been subject to appropriate criticism (by Justice Scalia, among others), on the ground that some of the canons that he used in his matched pairings were not in fact generally recognized as legitimate canons of statutory interpretation. The central insight that the canons are not value-neutral tools that lead to determinate results, however, retains much of its vitality.

Back Tomorrow

This is the kind of day that led me to my decision to cut back a bit. I have something in the works, but it won't be ready until tomorrow.

Half a Year

Cooped Up was born six months ago today. And in a sense, it has been more successful than I imagined it could be when I wrote my first post. When I started, I wondered if, in a crowded blogosphere, anyone would care to read what I wrote. Today my hit counter chugged past 49,000, and if recent trends hold I'll pass 50,000 sometime on Friday or Saturday. I've been deemed worthy of links by a wide array of bloggers, including some members of the professional media. And I've also made contact with a number of very intelligent, very interesting people from across the country and around the world, people whom I would not otherwise have encountered.

In one crucial respect, though, this blog has not been a success, and its failure leads me to question its direction going forward. As I said at the outset, I began blogging as part of an effort to break through an agonizing case of writer's block that was preventing me from making progress on my legal scholarship. The writer's block is gone, to be sure—I believe I've written more words in the past half year than in any other six-month period in my life. But those words have almost all been for the blog. My scholarship remains relatively stagnant, now not because I feel incapable of writing but because virtually all of my non-teaching, non-service, and non-family time is devoted to the reading and writing that goes into Cooped Up. That's a choice, of course—no one's forcing me to do this. But I'm a person of enthusiasms—my personality has an unmistakably compulsive component—and I've latched onto blogging rather fiercely, to the detriment of other aspects of my work and life. I spend an inordinate amount of time blogging, thinking about blogging, and checking my traffic. Quite simply, I can't keep going like this.

I'm not ready to give up, though. Instead, I'm going to try a new regime, limiting my blogging to no more than one long post and one or possibly two short ones per day. I also plan to shift the blog's emphasis a bit, away from the pure politics that dominated my thoughts in the weeks leading up to the election and toward more emphasis on law and the judiciary. And wine, of course. And sports too—I haven't done that for awhile. Some politics will surely be thrown into the mix as well, and I plan to contribute to the new blog on state politics being put together by the proprietor of the Daily Kos, But I know I'll feel less guilty about time spent on the blog if more of my blogging involves legal issues.

Part of me dreads making any changes in what I've been doing for fear that it will cost me readership. After all, I suspect that more people currently read my blog each day than have read any individual piece of scholarship I've written, and that's a heady feeling. But, as I said, something has to change—it's either that or shut down completely.

Blog Honors

Congratulations to Tim Dunlop for MSNBC's selection of his Road to Surfdom as one of its "best of blogs" this week. And many thanks as well for his nomination of Cooped Up. "Thoughtful without being dull as dishwater"—sounds like a new subtitle!

Pure Rage

Dwight Meredith is enraged. And the cause of his rage is enough to strike fear into the heart of this father of a toddler.

If I Can Make It There

Congratulations, you're New York City, the Big Apple.
What US city are you? Take the quiz by Girlwithagun.

(Link via Jeanne d'Arc).

All Class

Howard Bashman last night noted an odd passage in the Ninth Circuit's opinion in Flowers v. Carville, Gennifer Flowers's defamation lawsuit against James Carville, Hillary Clinton, and George Stephanopoulos. In the passage in question, Judge Alex Kozinski, writing for the unanimous Ninth Circuit panel, wrote:

We agree with the district court that the trio of colorful waste metaphors--the references to the Star stories as "trash," "crap" and "garbage"--are not defamatory under Nevada law. "[M]ere rhetorical hyperbole" is not actionable. Wellman v. Fox, 825 P.2d 208, 211 (Nev. 1992). Wal-Mart can call a competitor's store "trashy," even if the store is not, in fact, unkempt. Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 129-30 (1st Cir. 1997) (no relation).

Focusing on the parenthetical, "(no relation)," Howard wondered:

In a decision in which the Ninth Circuit is ruling against Hillary Rodham Clinton and two of President Clinton's former aides, arising from an alleged sex scandal, and the First Circuit opinion in question (Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 129-30 (1st Cir. 1997)) clearly has nothing to do with Monica Lewinsky, not to mention the actual difference in spelling, does the addition of the parenthetical "(no relation)" cross the line from a clever interjection to a gratuitous swipe at former President Clinton? Heck, I just ask these questions. You can choose to answer them, or not, as you see fit.

Well, I'll answer the question. It's a gratuitous swipe, inserted with a nearly-visible smirk. And it's inappropriate. Judges are not above employing (or trying to employ) humor in their opinions, and sometimes that humor is directed at one of the parties, or one of the participants in the events underlying the lawsuit. This humor isn't always appropriate—it sometimes suggests that the court takes the parties or their claims less than seriously. But it's human, and therefore understandable. In this instance, however, Judge Kozinski, a Reagan appointee well known for his conservative views, takes a superfluous shot at a Democratic former president. Whether Clinton deserves to be the butt of jokes because of his appalling conduct with Monica Lewinsky is beside the point. Given the author and the target, the comment has a clear partisan undertone. Federal judges should be above that.

Bob Dylan, Legal Philosopher

One more thing: on a lighter note, Howard Bashman links to a New Yorker article about New York Law School Professor Michael Perlin, who has undertaken an extended examination of the jurisprudence of Bob Dylan. The article, regrettably, fails to mention Dylan's profound insight into the outcome of the famous case of Mayo v. Satan, an insight that prompted one of my periodic musical outbursts in class yesterday.

Appellate Judicial Activism

Two of my favorite legal bloggers, Howard Bashman and Sam Heldman, have an interesting exchange about judicial activism in the federal appellate courts and the likely impact of President Bush's nominees on the course of the law developed by the federal courts. It's a subject I find fascinating—it ties into much of my scholarly research—and I'd like nothing better than to spend the rest of the day thinking and writing about it. Unfortunately, other duties call, so I'll post a quick comment and hope that I can return to the subject later.

Howard is absolutely right that appellate judges are significantly constrained—by precedent and by the need to obtain a majority within an appellate panel—in their ability to reach results that they might find ideologically desirable. But I think he overestimates the extent to which those constraints truly limit the courses of action available to appellate judges; this leads him to a definition of judicial activism—"the actions of judges who do whatever is necessary to rule as they personally prefer, regardless of what existing law provides"—that is overly narrow. Activist judges don't need to overrule or ignore existing law in order to shift legal trends in directions to their ideological liking. Sam identifies some ways in which judicial ideology helps shape the legal landscape, even without lawlessness of the kind Howard describes. If I have time, I'll suggest a few more later today.

Howard also errs, I think, by emphasizing the relative powerlessness of any one individual appellate judge to reshape the law significantly. His observation here is correct, but beside the point. President Bush has not nominated one appellate judge; he has nominated many. Individually, those judges might not have a significant impact; collectively, they certainly do have the potential to shape the interpretation and application of the law in significant ways for years to come. Indeed, a Washington Post article to which Howard links today makes clear that religious conservatives are counting on Bush's judicial nominees to do exactly that. Conservative legal commentator Bruce Fein, for example, understands the constraints under which appellate judges work, yet he plainly sees the potential for a judicial "revolution" following last week's elections:

"We're going to see a philosophical revolution in the courts," said Bruce Fein, a Reagan administration lawyer. Though he said the courts will let stand the landmark Roe v. Wade decision because undoing it would be "too wrenching," he said Bush's nominees will impose a variety of new abortion restrictions. "The impact will be enormous," he said. "It will be almost as profound as if [Supreme Court nominee Robert] Bork had been confirmed."

Lest anyone misunderstand, Fein makes the same point in his Washington Times column today:

President Bush's appellate court nominees are every bit as talented as their Reagan predecessors, and promise an equally profound revolution in the face of constitutional law.

Toward the end of his post, Howard challenges his readers "to point to any rulings of significant consequence that reflect this type of judicial activism and that have avoided U.S. Supreme Court review." Even given his very narrow definition of judicial activism, I'm reasonably certain that, with time, I could find such an example (I'd start looking in the Fourth Circuit). But Howard's challenge also overlooks a key point: sometimes appellate judicial activism isn't about deciding cases in the hope of avoiding Supreme Court review; sometimes, it's about trying to drive the Supreme Court's agenda. The Supreme Court already leans conservative; agenda-forcing appellate decisions give the Court an opportunity to re-examine its own existing precedents. That, too, is one of the goals of those pushing the conservative slate of Bush nominees.

I really must move on to other matters now. There's more to be said on this subject, though. Howard hinted yesterday that he would respond to some comments he's received; I hope he will.

Update: Sam Heldman has posted some further thoughts.

Must Be the Mad Cow, Then

Danish researchers have found that moderate wine consumption may help ward off Alzheimer's Disease and dementia.

I guess I'll have to find some other explanation for my increasingly sieve-like memory and my tendency to burst into song in the middle of class.

To Whom Honor Is Due

Speaking of members of the left who love their country: Max Sawicky pays sincere tribute today to America's veterans. All of them. Even Oliver North. He writes: "Veterans are those who have paid their dues and deserve honor, plain and simple."

Again, to our veterans: thank you.

Reclaiming Liberalism

In thinking about Veterans' Day, Armed Liberal found himself pondering a starting point for a Democratic revitalization following last Tuesday's election losses:

And I realized something about my own thinking, a basic principle I’ll set out as a guiding point for the Democrats and the Left in general as they try and figure out the next act in this drama we are in.

First, you have to love America.

This isn’t a perfect country. I think it’s the best country; I’ve debated this with commenters before, and I’ll point out that while people worldwide tend to vote with their feet, there may be other attractions. But there are virtues here which far outweigh any sins. And I’ll start with the virtue of hope.

(Minor editing done). Now, I'm with A.L. so far, especially since he makes clear that he is not advocating "my country, right or wrong," and that love of country does not necessarily correspond with support for everything that the government does.

But he loses me here:

So let me suggest an axiom for the New Model Democrats:

America is a great goddamn country, and we’re going to defend it from those who attack it and fight to make it better.

And for everyone who is going to comment and remind me that ‘all liberals already do that’…no they don’t.

It seems to me that A.L. here repeats the right-wing calumny (so frequently heard from the warbloggers) that liberals (or at least a substantial number of liberals) hate America. And, frankly, I'm sick of hearing that. It's bad enough coming from the political opposition; reading it from someone who's supposed to be a political ally makes me want to bang my head against the wall.

I know a lot of Democrats, in Indiana and in my old stomping grounds up and down the Northeast Corridor. Most of them consider themselves liberals. And every single one of them loves this country. They don't think it's perfect, they believe that it can be made better, but they are patriots, and they have fire and loathing for those behind the September 11 attacks.

A.L. makes what I think is the common mistake of equating liberalism with the political left. It may be that all liberals are members of the political left, but all members of the political left are not liberals. The campus radicals whom A.L. targets for criticism are part of the left, but they no more represent liberalism than Jerry Falwell and Pat Robertson represent real conservatism. Falwell and Robertson hate America—that much is evident from their various pronouncements since September 11. But that doesn't mean conservatives (as a category) hate America, does it?

As Democrats move forward, we need to proceed on several fronts. One clearly is substantive: the Democrats largely failed to offer real policy alternatives in the fall campaign, and it cost the party dearly. But another is rhetorical. And as part of that campaign, it's time to reclaim the word "liberal" from those in the Republican party who have used it as a slur—"hopelessly liberal," "disgustingly liberal," "outrageously liberal"—for the past two decades. Because true liberals have great love for the country, love founded in hope—hope that the country will draw ever closer to the ideals on which the nation was founded. And we won't tolerate the slander of those who would deny what we know to be true.

Veterans' Day

I wanted to say something about Veterans' Day, but my early efforts were nothing more than strained reaches for artificially soaring rhetoric. So, to the veterans who have served this country, I'll simply say: thank you.

Wine of the Week
Chateau Montrose St.-Estèphe 1961

For Bordeaux collectors, 1961 is a holy grail year. Thanks to a springtime frost, the crop was tiny, and thanks to a hot, dry summer the remaining fruit was of exceptional quality. Now entering their fifth decade, the wines are fully mature. And, because of the combination of miniscule quantity and extraordinary quality, their prices are stratospheric—we're talking four figures for first-growths like Chateau Latour and Chateau Margaux, Under normal circumstances, these wines are far out of my reach, and, barring a lottery jackpot, so they'll remain.

I once found myself in abnormal circumstances, however. In 1992, a friend and I wound up buying eight bottles of 1961 Chateau Montrose at an auction in London. At the time, I was getting ready to start as an associate in a large D.C. law firm,; I was single and feeling flush. England, meanwhile, was mired in recession, which (as one of its more insignificant effects) depressed wine prices. The lot on which we bid had moderately soiled labels, making them less desirable to collectors. And, more to the point, the wine had not been bottled at the chateau; instead, it had been shipped to England (in barrels, I assume) and bottled by London wine merchant Justerini & Brooks (which is also the J&B of scotch whisky fame). This was a fairly common practice until recent decades, and the wine is the same regardless of where it was bottled. Collectors, though, want wines bottled at the estate. Thanks to the combination of factors, we were able to get the wine for $70 per bottle—quite a lot for a consumable liquid, to be sure, but an astounding bargain for a 1961 Bordeaux.

I drank two bottles of the wine shortly after it arrived (one of them after taking the Pennsylvania bar). One was very, very good; one was astounding. This weekend, with my father and step-mother visiting from New York, I decided it was time to try another.

Opening a forty-year-old bottle of wine is a crapshoot (not that I've done it all that often). Even if the wine would still be vibrant in ideal conditions, individual bottles can have corks that went bad; they can have been stored imperfectly at some point. There are lots of things that can go wrong. This wine looked lively while I was decanting it and in the glass, a dark ruby-brick color with only a bit of faint ambering around the rim. The bouquet was subtle, with licorice and tobacco notes along with red fruit. At first, the flavors were pleasant but light, mostly soft, plummy fruit, with ripe but prominent tannin. With a bit of time in the glass, though, the wine opened and deepened, and blackcurrant, mineral, and spice notes emerged. It remained relatively light in weight, but it had good length, and its subtleties made it a wonderful accompaniment to fillet mignon.

Wines like this require a different vocabulary; it's possible to identify individual component flavor characteristics, but a mature wine is an integrated whole in a way that young wines are not. And because I have so little experience drinking wine of this age and quality, I'm not sure I'm up to the descriptive task.

I don't want to exaggerate. This was not the best wine I've ever had (among others, one of the bottles of this wine I had ten years ago was better). But it was excellent, and it was an experience I wish I could have more often.

Branding

The other day, on my way home from the office, I was feeling a bit drowsy, so I got off the highway and pulled into a convenience store for a sugar fix. While perusing the chocolate selection, I saw something new: Snickers with Almonds. I like Snickers, and I like almonds, so what could be bad? I decided to give it a try.

It's a Mars bar.

Now, I know it's not exactly unheard-of for a product to be rebranded in hopes of boosting sales. And I've long suspected that the Mars bar is a relative underperformer in the M&M/Mars stable of brands. And it's been very common recently in the candy business to introduce products under established brands—Reese's Fast Break, Reese's Nutrageous, Snickers Cruncher, Milky Way Midnight, Milky Way Lite, and so on (yes, I know my chocolate). But still, how many times does a company rebrand a product that carries the company's name? Mars, Inc. is an enormous company; how odd would it be if they stopped selling a Mars bar?