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In the layman's view of the criminal-justice system, defendants go to trial, are convicted or acquitted of certain charges, and if convicted, are sentenced for the offenses. But try to explain the reality of being sentenced for acquitted conduct, and you're likely to be met with stares of astonishment. "You mean you can go to trial, get acquitted and still go to the slammer for stuff the jury says wasn't proven?"
Indeed, my friends, welcome to our world.
Not only have many defendants been sentenced for stuff the jury said they didn't do (or at least wasn't proven), but yesterday the Supreme Court refused to do anything about it. The cert denial came in the case of Mark Hurn of my hometown, Madison, Wis. Hurn ate 15 years extra years in prison for possessing crack cocaine, even though a jury acquitted him of the charge. It's true. Though he was convicted of having powder cocaine in his house, (for which he was looking at two or three years in prison), he was sentenced to almost 18 years. Why? Because even though the jury acquitted him of the crack charge, the judge kind of figured he'd done it and therefore found, by a preponderance of the evidence that he'd done it, and sent him to prison as if the jury had actually said "Guilty" rather than "Not Guilty."
Strange? Yes. But sadly, also true.
And while the high court's refusal to hear Hurn's appeal (notwithstanding reverse his sentence) yesterday was cowardly enough, with the fourth circuit's decision this afternoon in US v. Ibanga, we have finally landed in Wonderland. In the case (and no it's not a joke though I wish it were), the fourth circuit basically says that not only CAN you sentence on acquitted conduct, categorically refusing to consider it is actually error.
What does that mean? It means that if you go to trial and blow, on even a single count, you run the risk of getting slammed for the entire indictment. Not only do ties go to the government, if they even score a run, they win. Anything other than a shut out is a loss for the defense. And that, in turn, makes it virtually impossible to win, but worse, it means that going to trial with a "I did this but not that" defense gets you only a pyrrhic victory. No longer can you reasonably contest a part of the government's case against you at a trial. Well, let me amend that, you can contest it, but it's unlikely to make a difference in how long you go to prison for even if you win.
Your only option? Total victory or plea.
So I'm dying to know, dear fellow bloggers, is there anyone out there who does not find this morally, procedurally or legally appalling? Don't we think Booker or Blakely at least suggest that this kind of thing really ain't so kosher? Anyone want to give me the odds that the court eventually turns around and does away with this abomination?
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What takes my breath away about the Yoo memos, now that we can finally read them, is their air of uttery certainty. One after another, complex questions of constitutional law are dispatched as if there's no cause for any debate. The president has all the war-making power. Congress has none. The president's commander in chief powers extend to interrogations (no matter how far from the battlefield in space and time they take place). Guantanamo Bay detainees and enemy aliens enjoy no constitutional protections. And then the pages Jack points us to, which include "Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield." In other words, Congress cannot prohibit any sort of treatment that the president chooses to allow. No wonder Jack Goldsmith thought Yoo was reaching far beyond where he needed to go, not to mention what the state of the law would actually support. And yet he brooks no doubt. It's as if he's writing as a Supreme Court justice, not a government lawyer. Which is understandable in one sense, since the Office of Legal Counsel functions like the government's internal Supreme Court—but also exhibits the terrifying results of dishonest, glib analysis by lawyers drunk on that very power.
More tripping lightly over what should be boulders: "We conclude that the War Crimes Act does not apply to the interrogation of al Qaeda and Taliban detainees because, as illegal belligerents, they do not qualify for the legal protections under the Geneva or Hague Conventions." Also blithely concluded, the prohibition against torture "does not apply to interrogations conducted within the territorial United States or on permanent military bases outside the territory of the United States." And again, Common Article 3 of the Geneva Convention—the backstop shielding enemy detainees—does not cover "an international conflict with a non-governmental terrorist organization." As David Luban has taken pains to explain, that's a tendentious and discredited view of Common Article 3. Yet there's no hint of all the debate and argument roiling just beneath the surface.The effect is entirely unsober and lawyerly.
On Page 47 of the Yoo memo, if I'm not mistaken, there's the amazing assertion that the Convention Against Torture doesn't apply whenever the president says it doesn't. "Any presidential decision to order interrogations methods that are inconsistent with CAT would amount to a suspension or termination of those treaty provisions." Doesn't this mean that whether or not a treaty has been ratified, with or without express reservations, Yoo is saying that the president can implicitly and on his own authority withdraw the United States from the treaty simply by not abiding by it? Is there precedent for such a claim? In my quick scan so far of the tortured (sorry) reasoning here, I can't find anything other than ipso facto—because I say so, the president says so.
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Reading the Yoo memo as fast as I can, but here it is—Part 1 and Part 2—for your evening reading. Thanks to the Washington Post and Marty.
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Over at Balkinization, Marty Lederman discusses the revelation of the previously secret March 14, 2003, memo by John Yoo that extends the theory of the 2002 torture memo (which sought to excuse the CIA) to the military's operations. Pages 18 and 19 of this memo make the now-familiar and infamous argument that the torture statute would be unconstitutional as applied to the president acting in his capacity as commander in chief. As Marty explains, this memo "" If you want evidence of how the law was badly twisted and misused in the Bush Justice Department, you need look no further than here.
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Jack, yes, Justice Windowdressing's first name is indeed "Secret"; no member of the public can tell how he really feels.
Driving my hypothetical is of course a question about what legitimacy means, and I'm not sure you have answered it. The problem is that legitimacy to the public and legitimacy among the Supreme Court cognoscenti are two different things. I'm not entirely sure which you have in mind.
Take me in 1993, for example. Fifteen years ago, I was an engineering major in college and had only a passing interest in the law. I read Linda Greenhouse's descriptions about the Supreme Court in the New York Times because I read the Times every day, but I had never actually read a Supreme Court opinion.
In 1993, did I think the Supreme Court's decisions and caselaw were legitimate? Of course! To be candid, it never dawned on me that they couldn't be legitimate. The justices were the nine most brilliant legal scholars in the country—that was why they were on the Supreme Court, obviously!—so it seemed absurd to me that anyone could even think to question that they were right. I might or might not like their decisions, but they were the oracles of the law, and I was just an engineering student and obviously they knew best.
My sense is that when you use legitimacy, you don't mean legitimacy to someone like the Me of 1993. That would set the bar pretty close to zero; just wear robes and hear arguments in that fancy building, and you'll trick young Kerr. Rather, you seem to mean legitimacy to a group of lawyers somewhere, or maybe a law school faculty, or maybe some combination of these various audiences. That's why I asked you whether any real-world justices have not generally followed your advice; I was hoping your answer would help articulate the relevant audience that assesses legitimacy.
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It's from December, but then we did not have this blog then. So forgive me for looking back a bit. But this decision is, after all, issued by a federal district court and written by the chief judge of the district no less Although I had read about the decision, National Coalition of Latino Clergy v. Henry, I only actually read the opinion today. And it's pretty shocking, or so thinks me.
The decision concerns a challenge by various anonymous illegal immigrants in Oklahoma claiming all manner of constitutional violations arising from various provisions of a new Oklahoma law restricting benefits and more to illegal immigrants. The court concludes that some of the plainitffs do satisfy the Article 3 injury in fact requirement—in other words, they have alleged a real injury (like being evicted by their landlords from their homes because of their illegal status) and thus they do present a case or controversy based on their specific allegations of being hurt. But that doesn't matter, the court goes on to say, because, according to the court, federal judges must consider whether they should be barred from being permitted to raise a constitutional claim for prudential reasons—i.e., ones of the Court's own discretionary crafting (though loosely based, of all things, on the Supreme Court's recent decision in the Pledge of Allegiance case!). After considering what prudence counsels, the court, per Judge Payne, chooses to slam shut the courthouse door. And why?
Here's the Court:
"In focusing on the illegal alien Plaintiffs here, the Court is reminded that courts have customarily declined to entertain cases involving plaintiffs with 'unclean hands.' Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 814, 65 S.Ct. 993, 89 L.Ed. 1381 (1945). This equitable maxim-that 'he who comes into equity must come with clean hands'-is a judicial closing of the courthouse doors to those tainted with inequitableness or bad faith related to the matter in which they now seek relief. Id. In the present case, the Court is deeply concerned by the implications of the illegal Plaintiffs' admission of violations of federal immigration laws."
Judge Payne then goes on to say: "These illegal alien Plaintiffs seek nothing more than to use this Court as a vehicle for their continued unlawful presence in this country. To allow these Plaintiffs to do so would make this Court an “abetter of iniquity” and this Court finds that simply unpalatable."
Recognizing thus might sound a bit harsh, Judge Payne adds this in a footnote:
The underlying illegality here—the admitted violations of federal immigration law—is directly, even causally, related to the injuries the illegal alien Plaintiffs ask this Court to remedy. A wholly different situation is presented by, for example, an illegal alien negligently injured in a car accident. In that case, the illegal alien plaintiff could certainly bring suit to recover for their injuries because their illegal presence in this country is in no way related to their negligence cause of action. Similarly, an illegal alien criminal defendant deprived of certain due process rights could certainly challenge that deprivation because the injury in that case would be unrelated to the defendant's status as an illegal alien.
But wait, what about Plyler v. Doe, where the court held that illegal immigrants could challege state and local laws depriving them of benefits? Not to worry. That's plainly a different case. Judge Payne again:
The Court would perhaps reach a different conclusion if this case involved children plaintiffs whose unlawful presence in this country was involuntary. See Plyler, 457 U.S. at 220. Indeed, the Plyler Court made it clear that the result in that case was predicated, in large part, on the fact that the illegal alien children plaintiffs' unlawful presence in the country was not of their own volition.
Just to top it all of, Judge Payne defends federal courts' right to invoke a prudential limit right up front with this contention:
While the situation here is vastly more benign, the Court can envision a scenario where a foreign member and supporter of a known terrorist organization could enter the country illegally, make their way to Oklahoma, anonymously-to avoid arrest by federal authorities-file a lawsuit challenging the constitutionality of Okla. Stat. tit. 21, § 1268, et. seq. (the “Oklahoma Antiterrorism Act”), admit in their lawsuit that they are in violation of multiple federal anti-terrorism statutes, and expect this Court to entertain their challenge to the state anti-terrorism law designed to bolster the federal law. Surely this Court would not be required to allow that anonymous Plaintiff to bring suit.
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Rich Schragger responds to Jack Balkin:
Because Jack was so kind as to respond to my prior post, I thought I’d pile on once more. I must admit that I am still a bit puzzled by Jack’s line between prescription and description. Jack’s account of living constitutionalism as a system seems again to conflate is and ought – in that sense it is quite panglossian. His analogy to the market (and his embrace of “structure”) is instructive; as long as the system is working, all is well with the world. But that seems to me to be a defense of constitutionalism, not a defense or a specific articulation of a constitutional theory. Indeed, it seems to me to be a defense of the rule of law, which is also fine, in that it gives us reasons for why we should consider decisions by a constitutional court “law.” But I’m still not sure what follows from an account that understands constitutional change as a process that turns politics into law over time. From what I can tell, such a process is legitimate not because it enhances certain basic values, or because it is a correct reflection of democratic will, but because it works.
In other words, Jack’s account (like many process accounts of constitutional legitimacy) needs to rest upon some more foundational value. For Jack, the system is legitimate if it “preserves rule of law values, maintains the benefits of constitutional government, and is roughly responsive to democratic politics.” I’m not sure exactly what this means, though. I assume that Jack would say that our current constitutional system achieves roughly these ends, but did it during slavery, or before women got the vote? In a world of Dred Scott, does one have a legitimate system of constitutional government? How would one know, unless the mechanisms of legal order had collapsed altogether, or the system had become so infused with corruption that it was untenable, or had become so evil that it was morally indefensible?
For those of us who believe that a constitutional regime is legitimate when it advances certain ends, the fact that politics will –as a systemic matter – turn into law over time is not enough. “Law” must be consistent with (some set of) constitutional commitments; it cannot simply be the name we give to political judgments (filtered through professional norms) that produce a roughly functional “rule of law” system.
As for living constitutionalism, it doesn’t seem to me that it fails if it doesn’t account for constitutional change. The tradition of common law adjudication has always “kept up with the times” with little loss of legitimacy. The idea of reasoning from general principles to particular outcomes in light of new evidence and new technologies is deeply embedded in the Anglo-American legal tradition. Whether a court is appropriately engaged in such an enterprise will turn on its articulation and defense of the general principles themselves. Originalism sometimes offers the false hope that we can put aside our differences about the content of those principles. By asserting that the framers “intent” takes care of all disputed questions and the court need only to “discover” it, originalism gives the appearance of judges behaving neutrally and lets them avoid articulating and defending their particular constitutional commitments. Both insiders and outsiders to the constitutional system can critique individual judicial opinions on that basis--which is what I took Dahlia to be doing when she expressed concern about the Justices's lack of consistency in the Heller case.
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Today begins National Poetry Month, no foolin'. Given concerns voiced here about the blindering of America's lawyers, how about honoring this "cruellest month" with a Convictions Poetry Slam? Let's hear nominations for best, or worst, law poetry. By "law poetry" I mean:
- use of poetry in legal writing, by judges, lawyers, or legal scholars
- poems about law, or about law's effect on society
- passages of prose that, intentionally or not, are poetic
To mark the month over at IntLawGrrls I reprinted America by Gertrude Stein. With effort that poem might be shoehorned into example No. 2. But it's not a great fit, and in any event I'd rather kick off our slam with this snippet, representing example No. 3:
The facts of this
case
are, we must
hope,
extraordinary.
Michael H. v. Gerald D. (1989), by Antonin Scalia
More to come as the month unfolds; looking forward to your entries.
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6. Use the techniques of common law decision making to extend, limit, and revise doctrines and precedents to help keep them faithful to text and principle as you apply doctrines to new fact patterns and changing circumstances. Most of your work as a judge (and especially a lower court judge) will involve doctrinal development and application. Remember that doctrine and precedent should serve constitutional text and principle, and not the other way around.
Again, too much originalism for my taste. I would add: Be prepared to back down when your decisions produce a public backlash. Duck politically sensitive issues if you can. In emergencies, defer to the president. Decide cases narrowly.
7. When in the exercise of your best judgment, doctrinal encrustations and elaborations no longer adequately serve text and principle, or now conflict with them, you should overrule them and create new doctrinal solutions to implement text and principle. Once again be guided by the notion that doctrine and precedent should serve text and principle, and not the other way around. This advice about overruling previous decisions is of particular importance to members of the Supreme Court. If you are a lower court judge, you should do your best to accommodate your judgment in terms of existing upper court precedent.
Jack, did you put this in so that you would have an even 10 rather than 9 principles? What's wrong with 9 principles? Or even 8 or 7? (Is the model the Ten Commandments or a Letterman Top Ten List?)
8. Don't assume that judges are the only people who know what the Constitution means.
Yes! Most constitutional development occurs outside of the judiciary. The modern presidency, so different from what the founders envisioned, to the extent they even agreed on what they envisioned, is the result of compromises between Congresses, presidents, parties, etc.; the justices have played a relatively minor role. I would expand on this principle, and tell judges that other people might very well have a better idea of what the Constitution is or should be, and you need to be prepared to persuade them by argument that their views are wrong, at least if you want to get anywhere with your own. And don't start messing with extra-judicial constitutional norms that have been evolving on their own unless something is seriously amiss.
9. Pay attention to the tradition of conflicting interpretations of the Constitution that has been handed down to you as a potential source of enlightenment.
See my comment on #7.
10. Do you best to live up to your judicial oath of office "to administer justice without respect to persons, [to] do equal right to the poor and to the rich, and [to] faithfully and impartially discharge and perform all the duties incumbent upon [you]."
See my comment on #7.
11. Decide cases in a manner that represents and protects (in as legally principled a way as possible) the constitutional values of temporally extended majorities.
Oops! You only had 10 principles, didn't you? I took #11 from here. I know, I know, I've mixed up theories again. Still, the part in parentheses might not be bad advice, with due consideration for the underlined words. You might add: And don't admit that this is what you are doing!
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Jack asks me what I think of his top ten pieces of advice for judges. Well, let's take a look.
1. Be faithful to the original meaning of the text of the Constitution and the principles that underlie it.
We're not off to a good start. Living constitutionalism requires that our system of judicial review be (or be perceived as) legitimate, as Jack has persuasively argued. Legitimacy means that the people, or at least the people who exercise political power of any sort, believe that judicial review serves their interests, rightly understood. I find it hard to believe that faithfulness to the original meaning of the text of the Constitution will produce legitimacy. (In public debate, it is hardly an exaggeration to say that people claim as the original meaning whatever they think serves their interests today.) After all, people don't care about the original meaning of the Constitution; they don't even know what it is. What they care about is good government delivering needed public services. Faithfulness to the original meaning is consistent with good government only if either (1) the founders somehow anticipated public needs in the world ca. 2008 and managed to design government institutions that would be as good for 2008 as they were in 1789; or (2) they produced the optimal amendment process, allowing the people to change the government whenever changing circumstances demanded new government structures (almost always!). If there is any consensus in constitutional law, it is that the amendment process is too cumbersome and slow. That is why the justices have had to update the Constitution through aggressive interpretation. Fortunately, the founders, in their wisdom, used language of almost infinite malleability, so that (the 34 year old president and the three-house Congress aside) we can almost always claim that whatever we want is consistent with the Constitution, or at least the principles (infinitely malleable times two) that underlie it.
2. Make legal arguments using the modalities of text, history, structure, prudence, precedent and national ethos.
The major alternative to modern-style originalism, which requires justices to overturn precedents in order to return us to the world of 1789, is to respect those precedents, as much as possible, and exercise judicial restraint (underenforcement of constitutional norms), so that the political branches can update the Constitution without judicial interference. Constitutional text will be a starting point when no precedents exist, but that is increasingly rare, and judicial restraint will limit the harm done in those circumstances.
3. You are required to decide consistent with the text's original meaning but you are not bound by the original expected application of the text, although that may be useful evidence of original meaning or of the principles underlying the text.
One of Jack's contributions to the debate, and I hesitate to criticize it before sitting down and reading his work on this topic (it's on my desk, I swear!). For now, I will say that Jack's watered-down originalism, as I understand it, partly but does not fully meet my objections to originalism, as described in #1. Jack's is a Goldilocks view that legitimacy requires avoidance of two extremes: slavish devotion to the document ("original expected application") and indifference to it. If I am right that people today don't care much about the original document (whose major purposes, having to do with slavery and agriculture and so forth, have little bearing on the optimal structure of government today), then there is no need to make obeisance by looking for justifications in its "principles."
4. Apply existing precedents as long as they reasonably implement text and principle, even if they are imperfect articulations of text and principle and even if you would have done things differently if you were writing on a clean slate.
See my comments on #1 and #2.
5. Employ humility and charity in assessing constitutional interpretations of the past. Even if you think that previous jurists did not correctly implement text and principle, try to understand how their interpretations, read in their best light, might be faithful to the Constitution's text and principles.
Okay, okay.
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Orin, you need to redo your hypothetical to make it more interesting. Currently, there's an easy answer: Justice "Substance," i.e., Justice "I don't write opinions," seems not to be doing the traditional work of judges. He is not offering written opinions to justify his conclusions, so he violates points 2, 4, 6 and 10. Justice Windowdressing, who says law is bunk, seems to violate (at least) 1, 5, 7, and 10. Perhaps you mean Justice Secret Windowdressing: he actually thinks law is bunk but he is careful never to tell anybody in public and nobody can tell from his opinions that he thinks law is bunk. (If they can, he is not very good at windowdressing.).
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Today's Washington Post reports that the Bush administration has decided to charge Ahmed Khalfan Ghailani with before a military commission at Guantanamo Bay for acts committed before Sept. 11 -- to wit, his alleged participation in the bombing of the U.S. Embassy in Tanzania. According to the Defense Department, Ghailani will be charged with conspiracy, murder, attacking civilians, destruction of property in violation of the Law of War, terrorism, and material support to terrorism, among other charges. The Post reports:
Ahmed Khalfan Ghailani, who was held in secret CIA custody for more than two years before arriving at Guantanamo Bay in late 2006, was accused of plotting and carrying out the embassy bombing as part of his work for al-Qaeda and Osama bin Laden. The attack, on Aug. 7, 1998, killed at least 11 people and injured nearly 100 more.
Ghailani was also accused of later going to al-Qaeda training camps in Afghanistan, working as a bodyguard for bin Laden and forging documents for other terrorist conspiracies. At one time, he was on the FBI's 25 Most Wanted list and had a $5 million bounty on his head. He was arrested in a raid on his home in Pakistan in July 2004.
Almost all of his alleged "war crimes" occurred before the Sept. 11 attacks, and most predated the nation's fight against terrorism. Four co-conspirators in the Tanzania bombing were convicted in U.S. federal courts. Ghailani, too, was indicted in the United States, but federal authorities have opted to try him before the commission, composed entirely of military officers.
I'll be very interested to see how the Bush administration's lawyers argue their way around the provision of Article I that reads "No Bill of Attainder or ex post facto Law shall be passed". Setting aside the myriad objections to the military commissions generally, and this case specifically, I think this is going to present a major hurdle for the government.
I'm also concerned about the deliberate decision to take this case away from federal prosecutors (who have already scored four convictions -- that's four more than Team Gitmo, in case you've lost count) in favor of the military tribunals at Guantanamo Bay. In my opinion, our default choice for the prosecution of suspected terrorists should be federal court. The Moussaoui prosecution was an anomaly; many, many terrorism prosecutions have gone forward through trial and convictions, including United States vs. Bin Laden (in absentia). The substantive and procedural due process granted by federal courts has strategic value -- it confers legitimacy on the outcome. That legitimacy matters for the struggle against terrorism, and I think it's crucial that evaluate our prosecutorial decisions with that strategic calculus in mind.
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Jack, I'm curious, based on your response to Eric's post -- and implicitly, to my earlier one -- are there any past or current Supreme Court Justices whose decisions are not on the whole reasonably consistent with your advice? My earlier understanding was that almost every Supreme
Court Justice (certainly all of the current ones) did/do what you
suggest. I'm curious if you see any outliers. It seems to me that one possibility is Justice Douglas, whose opinions often delighted in ignoring traditional modes of legal reasoning. Anyone else?
Actually, a second question, if I may. Your "Top 10 list of things judges should do" appears to be advice on reaching results, not what opinions should actually say. If I'm right about that, was the emphasis intentional?
I'm curious about that because substance and process can be quite different. Imagine two Justices, Justice Windowdressing and Justice Substance. Justice Windowdressing thinks law is stupid and it's all politics. He tells his law clerks that no matter what the law says, he will be voting in the liberal direction in every case with an ideological valence; in the non-ideological cases, he will just flip a coin. But, he explains, he wants the clerks to dress up his results using the Balkin list so the opinions read as if they were based in the law. He hires the best clerks Yale can provide, so his opinions sing; law professors love just them, and they are considered works of judicial art.
In contrast, Justice Substance actually does read the Balkin list and follows it with great faith and devotion. Unfortunately, Justice Substance and her law clerks spend so much time thinking about the Balkin principles that they can't be bothered to write judicial opinions. In fact, Justice Substance thinks that the actual opinions are dumb. Instead of writing traditional opinions, Justice Substance always puts out a one sentence solo opinion -- concurring in the judgment or dissenting, as the case may be -- that states: "Blah blah blah. Nyuck, nyuck, that's all folks!!!"
I guess my question is this: Is the legitimacy that you have in mind a question of appearance (in which case Justice Windowdressing is a model Justice) or the process of reaching results (in which Justice Substance is the model) or some mix of the two?
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The study mentioned by Emily can be found here (though you might have to pay to see it). Several of its conclusions are puzzling.
1. "[C]hildless women may be more productive than women with children and their male colleagues (with or without children)." Childless women billed almost 1600 hours, while fathers billed 1541 hours, childless men billed 1491 hours, and mothers billed 1387 hours.
However, the data also show that childless women are less experienced, with an average of 7.13 years of legal experience, compared to 15.3 for fathers, 13.44 for childless men, and 11.06 for mothers. You should picture these firms as employing young childless women, and older men, and older women with children. Are the childless women billing more just because they are younger, that is, your average overworked associate competing for partnership? (In the regressions, the authors control for legal experience, but if mothers tend to be partners, childless women tend to be associates, and partners work less than associates, I don't think that their legal experience control will do the trick.)
2. "[F]amily-friendly benefits appear more advantageous to men than women, even though women with young children would likely gain more from them in balancing work and family." The three variables that measure family-friendly benefits do not actually refer to specific programs such as paid maternity leave; they refer to survey respondents' perceptions of family-friendliness (including such things as whether people at work frown on discussions about child care). The study finds that being in a family-friendly firm does not increase a woman's productivity, but reduces a man's productivity.
The first result is more surprising than the second. To see why, note that one of the measures of family-friendliness is "reasonable workload." It is straightforward that if you are in a firm with a "reasonable workload" you are going to bill fewer hours. The two variables—billable hours and reasonable workload—ought to measure the same thing. So why the different results for women? The only thing I can think of is that maybe women are given more tasks that are not billable, perhaps because they have less legal experience, and it is those tasks that they forgo if they have children while in a family-friendly firm. The authors note that billable hours account for only 2/3 of the time spent by the lawyers at work, so if non-billable hours decline, this will not show up in the regressions and yet may account for a great deal of the underling variation.
But the larger point is that we can't say whether these benefits are more "advantageous" to men or to women without knowing more about how employees are compensated. People don't care only about how many hours they work; they also care about pay. But pay is not in the data set. This leads to a third concern.
3. "[W]e found very little support for ... the costs of working in a family-friendly firm for women's productivity." Emily interprets this statement as follows. "The happy spin from the authors is that the family-friendly policies aren't hurting the firms vis-à-vis their women employees, which makes the policies seem less costly. (Their original hypothesis was that the family-friendly firms would find that mothers were less productive, since these policies are often seen as the path to mommy tracking.)"
Assuming Emily's interpretation is correct (I'm not sure I understand the statement I quoted from the paper), the paper doesn't really provide much support for this idea, or have any normative implications, as far as I can tell. Some firms have family-friendly policies and other firms do not. Women work about the same amount in both firms. But it may be they are paid less in the family-friendly firms, which would suggest that they are being less productive (producing lower-quality work, or producing less work given a fixed investment of the firm's other resources). Or they could be equally productive but receiving some of their compensation in the form of flexibility rather than cash. We just don't know because the study doesn't include salary data or other information (such as the quality of the work) we would need to measure productivity. Also the omitted non-billable hours are troubling.