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One of the students in my Separation of Powers class flags that Barack Obama has proposed that the director of national intelligence be given a fixed term, "like the Chairman of the Federal Reserve," in order to "insulate the [DNI] from political pressure." Presumably, Obama means that the DNI should also be removable by the President only "for cause," as is the case with the members of the Federal Reserve Board (12 U.S.C. 242).
Jack has recently written about how odd it is that proponents of the unitary executive rarely if ever complain about the independence of the Fed, notwithstanding that the members of that board make decisions much more momentous than almost any the president himself makes—and that by now we all simply take for granted that the president must defer on monetary questions to this collection of unelected, unaccountable officials. I am planning a follow-up post on this issue soon, but for now, I'll simply throw out a few questions for the group, the latter two of which are probably outside our areas of expertise:
1. Is Obama's proposal constitutional? If not, is there a way to distinguish it from the Federal Reserve statute?
2. Is there any precedent for a major presidential candidate proposing to cede presidential control over such an important executive function?
3. If Obama is elected, would a Democratic Congress enact such a statute? Would the intelligence "community" support it or oppose it?
4. Is it good policy?
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Both the Clinton campaign and our comrades at Trailhead are complaining that Barack Obama was, in fact, never a law professor.
Well was he? Sorry Trailhead, but it's not so clear-cut. To see why requires a quick visit through the mists and mysteries of academic culture.
Obama was a "senior lecturer" at Chicago. When I was a lowly "visiting professor" at the University of Chicago, there were a number of "senior lecturers." Most were former professors who had other, usually very fancy jobs, and therefore taught less. The list included my old boss Judge Richard Posner, along with Judges Frank Easterbrook and Diane Wood, and I believe Dennis Hutchison. As the list suggests, being a senior lecturer isn't exactly like being the janitor. In fact, its sort of surprising that Chicago gave Obama that title.
To confuse matters further, the title "lecturer" is almost certainly borrowed from the English title, which refers to what Americans would call an "associate" or "assistant professor." In that sense, the term "lecturer" can be sometimes be something of a synonym for "professor." One lectures, the other professes.
But what about the difference in rank or standing? There is a difference. At most schools, the term for the job Obama had is called "adjunct professor," or sometimes "visiting assistant professor" or "clinical professor." In one sense people with these jobs are law professors—in the sense that they profess the law. It is also true that students in the class call them "professor." Doubtless Obama's students called him "Professor Obama."
But on the other hand, an adjunct is not a full-time professor, though he or she might have been so once. Nor has the adjunct or visiting assistant professor or clinical professor gone through the exact same filters required to be a "tenure-track" professor. Yet they do go through some important filters. You can't make a ham sandwich into a law professor.
So where does this lead us? To my mind, it makes for a tempest in a teapot, for two reasons.
First, while academics do care an awful lot about these things, the details may matter much more to insiders than outsiders. At the hospital, there are clerks, interns, residents, and actual attending doctors, but for simplicity's sake we call them all "doctor," even if they are doctors of various qualification. Similarly, I'm certainly not a blogger by occupation, but during this post I am. If Obama had said he was a tenured professor, that would be an outright lie. But if a clinical or adjunct claims to be a law professor, fair enough.
Second and more crucially, context makes a difference. When Obama was in the classroom, he was a law professor. But if he says, I spent these years as a law professor—that's not true. So its fair to say that while he was in the midst of teaching, Obama was a professor, even if he wasn't actually a professor by occupation.
By this standard, Obama's Web site puts it correctly: "he returned to Chicago to practice as a civil rights lawyer and teach constitutional law. And in the speeches, he ought say,
"I taught constitutional law, which means unlike the current president I actually respect the Constitution...."
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Over at Obsidian Wings, my friend Publius [not his real name -- a.w.] suggests that states should enjoy flexibility under the Second Amendment to calibrate gun-control regulations in light of the varying needs of different cities and towns:
If your world is 18th century Massachusetts, then broad gun rights make a lot of sense. If your world is a densely-populated housing project in the Bronx, then broad gun rights make much less sense. Indeed, they create very dangerous environments. And if your world is rural Montana, then the policy rationale shifts back the other way.
Publius seems to get the analysis precisely backward: If "my world" is a housing project in the Bronx, then I'd face a greater need to carry a gun, for self-defense. By contrast, if I lived in rural Montana, then my need for easier access to guns would be much, much lower.
That said, maybe Publius is on to something. Maybe the courts should take more care to calibrate constitutional rights in light of the facts on the ground in differing locales. If we're going that route, then I'd recommend that we start with the Fourth Amendment's protection against "unreasonable" searches and seizures, giving police officers greater discretion in searching persons, homes, and automobiles without a warrant in high-crime urban areas, and further limiting their discretion to conduct warrantless searches in low-crime suburbs.
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Like any associate at a big law firm in a major city, I'm keeping a close eye on layoff trends. I'm a little less worried for my friends in various M&A shops, however, now that I've seen DealBreaker's coverage of how Wall Street is adapting to new market conditions.
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When Linda Greenhouse recently announced that she was leaving the New York Times, it was a sad day for Supreme Court coverage. Now there's good Greenhouse news--and a coup for Yale Law School. Greenhouse will be the law school's Distinguished Journalist-in-Residence starting in January 2009, a new position created for her, to support her research as well as participate in law school doings. Court observers will still miss her on the front pages, but they'll get her sharp eye and analysis in other forms. I can't think of a downside.
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In a major foreign policy address today to the Los Angeles World Affairs Council, Sen. John McCain offered a few policy ideas that sounded, well, downright Democratic, even going so far as to cite Truman and Kennedy as role models:
America must be a model citizen if we want others to look to us as a model. How we behave at home affects how we are perceived abroad. We must fight the terrorists and at the same time defend the rights that are the foundation of our society. We can't torture or treat inhumanely suspected terrorists we have captured. I believe we should close Guantanamo and work with our allies to forge a new international understanding on the disposition of dangerous detainees under our control.
There is such a thing as international good citizenship. We need to be good stewards of our planet and join with other nations to help preserve our common home. The risks of global warming have no borders. We and the other nations of the world must get serious about substantially reducing greenhouse gas emissions in the coming years or we will hand off a much-diminished world to our grandchildren. We need a successor to the Kyoto Treaty, a cap-and-trade system that delivers the necessary environmental impact in an economically responsible manner. We Americans must lead by example and encourage the participation of the rest of the world, including most importantly, the developing economic powerhouses of China and India.
I r
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Last week I cited an L.A. Times feature on the Tupac Shakur killing as part of a post on Eliot Spitzer and Dickie Scruggs. Serious questions have now been raised about the accuracy of that story, which hinges upon a series of documents provided to the paper by a source which depicted an informant's conversations with the FBI. Times editor Russ Stanton said that "questions have been raised about the authenticity of documents that we relied on for a story on the assault of Tupac Shakur in New York ... we are taking this very seriously and have begun our own investigation."
(Full disclosure: I've been friends with Chuck Philips, the L.A. Times reporter who wrote the Shakur story, for nearly 15 years, and think he's a phenomenal journalist, but have not talked with him about this matter.)
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Back to Jack in a bit. Adam Liptak's NYT article notes that foreign courts don't like to enforce American punitive damages awards, a position that Liptak's interviewees attribute to foreign discomfort with the American jury system and American-style punitive damages. It's true that foreigners think that the American jury system is crazy, but European courts routinely enforce American compensatory-damage judgments, which means mainly the judgments of juries. So European discomfort with juries can't go as deep as Liptak's article implies.
As for punitive damages, the attitude of the European courts is not surprising, once one recalls that American courts also do not enforce foreign judgments that are "penal"—namely criminal, for example, fines. European courts appear to have the same rule, and the evident puzzle for them is whether punitive damage judgments should be classified as regular civil judgments (their formal classification) or criminal judgments like fines (which they seem to be, in effect). Punitive damages straddle the line between civil judgments (which are supposed to compensate) and criminal judgments (which are supposed to punish). Hence European puzzlement about whether to enforce these awards.
Courts also don't enforce foreign tax judgments, and this rule, along with the penal rule, seem to reflect a kind of inter-state deal. We'll enforce your civil judgments if you enforce ours—because we're basically in agreement that people should be compensated for their injuries, and we don't want to let defendants escape liability by going abroad. However, we don't agree as much about taxation, criminal penalties, and general regulatory matters, so let's agree to leave enforcement of these rules to one's own national courts, even if sometimes people can escape judgments by going abroad. If this is really the deal, then European reluctance to enforce American punitive awards is justified, even if these awards are good policy.
See also Jonathan Adler's post here.
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Kenji, thanks for the props last week—looking forward to continuing our conversations here and elsewhere. Since we basically agree on the Obama speech, I wonder what you thought of Christopher Hitchens' characteristically energetic denunciation of same. As you can guess from my previous posts, I think he was wrong to argue that the speech was nothing more than a cynical political ploy—there were safer ways for Obama to deal with the Wright scandal and he chose one that was, by and large, courageous and honest. But do you think Hitchens did make a few fair points as to the poisonous relationship between race, religion and politics? Such as:
- Obama almost certainly did choose the “controversial” Rev. Wright in order to gain street cred in the poor and segregated black communities of Chicago. Whether this was nothing more than cynical political calculation or a combination of that and a sincere and laudable desire to learn more about the mores and attitudes of a community he felt connected to by race but had had little exposure to is debatable (I think it’s the latter). But having done so, he had to let a lot of crazy and incendiary talk slide and now it’s come back to haunt him: He can’t defend Wright because some of what Wright says is indefensible, and yet he won’t renounce Wright because the community that Wright (to some extent) represents is one that Obama genuinely cherishes and cares about. I don't blame Obama for this, but isn't it too bad that "street cred" in the black community comes from alliances with demagogues like Wright?
- Isn’t Hitchens right to bemoan the tight interweaving of black political activism and religion, as epitomized by the so-called “liberation theology” of which Rev. Wright is a practitioner? Isn’t it bad for the black community and for civil rights struggles that so many black political leaders and intellectuals are either ministers or speak in the cadence and use the logic of religion (I’m thinking of Jesse Jackson, Al Sharpton and Michael Eric Dyson—all ministers—but also of people like Cornel West who one would think was a minister from listening to him, so completely has he mastered the charisma of the black preacher)? Hasn’t being dazzled by what Max Weber would call the "charisma" of the preacher, the magical thinking of scriptural analogy and the habit of turning political conviction into religious dogma kept black political thought mired in a destructive mind set of grievance and indignation? Yes, yes, I know people will rejoin: "what about the Reverend Martin Luther King Jr.?" but perhaps he was the exception that proves the rule? Or perhaps the desire to imitate MLK has led too many black leaders to exaggerate the most conspicuous, but perhaps not the most important, aspect of King’s persona—that the charismatic man of faith.
- The upshot: It’s not race but religion that should worry us with respect to the Obama/ Wright connection. Obama is no racial demagogue, but demagoguery is an ever present risk for someone who relies as much as Obama does on charisma in direct imitation of the revivalist preacher. Obama is wise and intelligent enough to offer us sound policy based on reason and analysis, but he too often defaults to “inspiration” when faced with tough questions (this is the real importance of Hillary Clinton’s infamous “it takes a president” comments several weeks ago, and one of the few instances where I have agreed with her in a dispute with team Obama.) If we are to realize the ambition that so many of us think Obama’s candidacy represents—not to get beyond race but to find a new and more productive way of engaging it—then don’t we need to move beyond religious, mystical and so-called “prophetic” approaches to what are, in the final analysis, social policy questions?
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continue reading at Balkinization . . .