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To the "more pie" metaphor advanced today by Adam and years ago by Orin, let me add the "more homework" spin on same.
It's a favorite aphorism of U.S. Supreme Court Justice Stephen G. Breyer; I've heard him use it 2, maybe 3 times, so it's not surprising the phrase has a life on the web. Here it is:
"The working life of the Supreme Court justice is reading briefs and writing opinions. So a lot of it is spent here at the desk, with my word processor. I usually say to students what I told my son when he was growing up: If you do homework very well, you will get a job where you can do homework the rest of your life."
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Today I encountered two insights simply too good not to reprint here. First, from Jack W Burtch, Jr.'s essay [pdf] in the new issue of the Virginia Lawyer:
"Becoming a partner is a decision, not a reward. . . . Becoming a partner in a law firm is like winning a pie-eating contest where the prize is more pie."
Second, from the latest installment of John Dickerson's peerless Slate coverage of the presidential campaigns:
"94.3 percent of the time Obama never really tells the audiences
anything uncomfortable though he boasts that he will 100 percent of the
time. What he promises them instead is to tell people they don't like
(auto executives and Wall Street fat cats) what those groups don't want to hear."
Update: Unsurprisingly, my esteemed colleague traced the origins of the "pie" quip long ago.
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As Jack mulls over a response to Orin on computers in the "national surveillance state," I'd like to raise a different set of beefs with the Jack-type response to today's Washington Post's story about the government's recent failures in terrorism trials. Two points.
First, it seems awfully easy to come up with spin either way in interpreting what a mistrial or acquittal in any particular terrorism case really means. Jack looks at the Post story and sees a trend in counterterrorism criminal justice toward "violating people's legal rights by bringing prosecutions too early and with insufficient evidence to convict." (I'm not actually sure what rights Jack thinks it violates if a prosecutor brings a case she believes in good faith amounts to criminal activity and the jury later acquits.) Others (including others quoted in the Post) as plausibly see mistrial or acquittal in such cases as just a sign of the great jury trial system at work. More broadly, for as many administrative spokespeople as I've heard say the approach changed after 9/11, and the FBI is newly in the "prevention" business now, I've heard other FBI officials say that their approach to crime (and terrorism in particular) has always been prevention. Both sets of arguments seem to me far easier to make than to prove.
But that brings me to point two: anecdotal reports like the Post's are anecdotal. They may be a signal of the phenomenon Jack fears. Or not. We'd have to know more about what's going on - a lot more - to say for sure. How many of these (for lack of a better term) ‘preventive' prosecutions post-9/11 have been brought? What statistics exist about what we were doing in this realm (or one closely analogous) before 9/11? What's a typical win/loss record in some control set of criminal cases? What's the total win/loss record in this particular set? And inflated rhetoric of attorneys general notwithstanding, on what basis have prosecutors decided to bring these cases - because they were desperate for some way to lock these guys up, or because they actually thought these guys had committed a crime?
Theory can be enormously helpful in the realm of counterterrorism, but answers to these particular questions (unlike so many others in this field) are actually knowable. I'd thus particularly applaud the work of folks like Bobby Chesney, one of the few scholars I know who is studying what's actually happening in more than one case at a time, and who is described by the Post as painting a "complicated" picture about the federal record in pursuing such ‘preventive' cases. Jack, you'll no doubt berate me, too, for not reading enough of your work, but I guess I suspect Bobby's right - the real "trend" picture is more complicated than the one you paint.
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Jack suggests that I have misunderstood his argument about a "National Surveillance State," but I'm not so sure -- and I'm pretty confident he has misunderstood my criticism.
To be clear, my point is not specifically about responding to threats, or security issues more generally. Rather, my argument is about perceptions of computerization. As we increasingly move from physical conduct to digital equivalents, the computerization of everything increases. What we are observing is a general shift to increasing computerization by everyone -- individuals, groups, businesses, even governments -- not necessarily a shift to greater surveillance or greater surveillance powers. My claim is that it is easy to confuse these two possible trends; what looks like a shift to greater surveillance powers is really just one small part of the societal shift to increasing computerization.
Perhaps the basic claim of "the National Surveillance State" is just that as we all use computers more and more, there will be more computerized information, and that we need to think about where all that data is going and what it is used to do. The shift can alter the balance of power among individuals and institutions in many complex ways, and we need to constantly reassess the balance. If that's the argument, I agree with it. Moreover, I'm not sure anyone would disagree -- although one might object that the label "National Surveillance State" is not a very descriptive way to make the point. But I had thought based on Jack & Sandy's article and Jack's blog posts that the claim was much more government-specific than that.
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Eric, nothing that the pope said Friday favored one set of rights over another. Indeed, as my post stated, his speech to the U.N. General Assembly included "a tacit reprimand to those who would privilege civil and political rights over economic, social, and cultural rights -- or vice versa." (emphasis added) The point I'd intended to underscore was that the pope had reaffirmed the indivisibility of both sets of rights, the civil/political, on the one hand, and the economic/social/cultural, on the other. Indivisibility was inherent in the 1948 Universal Declaration of Human Rights, but frayed when Cold War geopolitics pushed the U.N. Human Rights Commission to separate the 2 sets as it began the process of drafting treaties designed to make binding all those rights that states had endorsed in the nonbinding Declaration. That separation, which seemed essential at the height of the Cold War, may be less so today: 160 countries are full members of the 1977 International Covenant on Civil and Political Rights, while 157 countries are full members of the 1977 International Covenant on Economic, Social, and Cultural Rights. That means that 3/4 of all the United Nations' member states are firmly in each Convenant's camp. Vestiges of Cold War concerns may be found, however, in the fact that the United States is not party to the latter Covenant and China is not party to the former.
As for China: application of the concept of indivisibility means that China is no more a "champion" of human rights than any other state. The role that the Chinese state has played in alleviating poverty deserves attention. Indeed, how each country addresses the basic needs of persons within its jurisdiction deserves note, as I've argued with regard to the United States in a forthcoming essay just posted at SSRN. But the costs of such programs also must be assessed, respecting matters as wide-ranging as the health problems and the repressions of civil liberties that may result from economic development at all costs. (Here, too, insert a "vice versa.")
On 2 points, it seems, we agree. 1st: Athletes honored to carry the torch a bit of the way toward the 2008 Olympics should not have to fear anger and assault as they run through the streets of their home country. 2d: Comprehensive, critical comparison of the nature and extent of states' programs to protect human rights rarely will yield a clear "winner."
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Convictions blogger Eric Posner debates National Security Network executive director Heather Hurlbert over at bloggingheads.tv on a range of subjects from Bush's climate change speech to executive power to what President Obama might do if a country like Spain were to arrest John Yoo on charges relating to the torture memoranda.
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Orin has not read all of my work on the National Surveillance State, so perhaps he may be forgiven for not recognizing that I emphasize the very points he mistakenly believes to be a critique of my argument: I argue that as times change, increasingly powerful information technologies are placed in the hands of governments and private parties alike. Governments must therefore increase investments in and methods of surveillance in order to meet new threats and new abilities to escape detection through traditional methods. There is no disagreement here. At the same time governments also face pressures to use increasingly powerful techniques of information collection, collation and analysis not only to provide security but also to deliver social services. Finally, it is important to realize that much, if not most, of the new information gathering, analysis, and surveillance in the National Surveillance State is in private hands.
In the National Surveillance State, the government increasingly uses surveillance, data collection, collation and analysis to identify problems, to head off potential threats, to govern populations, and to deliver valuable social services. The National Surveillance State is a special case of the Information State-- a state that tries to identify and solve problems of governance through the collection, collation, analysis and production of information. The characteristic features of the National Surveillance state are increasingly information-rich techniques of governance, the increased power of privately held information technologies and surveillance, increased cooperation between public and private enterprises in collecting, collating and analyzing information, and the increased adoption of information collection, collation, and analysis techniques for the provision of a wide range of of social services (not just criminal prosecution). The National Surveillance State is a further evolution of the Administrative and Welfare State, on the one hand, and the National Security State on the other. (I hope Orin doesn't think those are also merely fads!). I regard the development of these new forms of governance as the likely if not inevitable consequences of long term technological and social change. The central question is how to structure these developments so as to guarantee civil liberties under changed conditions.
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As a matter of rhetoric, maybe. In substance, skepticism is called for. One searches in vain for concrete plans advanced by the candidates for improving America's international law compliance. They do all say that they will respect the Geneva Conventions, but the Bush administration has said the same, and none of candidates explain how they will modify America's counter-terror tactics in order to bring them in line with U.S. treaty obligations. The candidates realize that the voters they seek to attract don't care much about international law or international institutions, so they have no reason to promise to tie their hands with ambitious commitments. It is likely that our next president will think of international law in instrumental terms, just as all our previous presidents have done. To be sure, the next president will have different policy goals (more enthusiasm about reducing greenhouse gas emissions, less enthusiasm about free trade, for example), and these different policy goals will require different types of international cooperation (more for a climate treaty, less for trade treaties), but it's hard to think of a reason why a (say) Democratic president will show more enthusiasm for international law per se than a Republican president or even President Bush, though one can expect that the rhetoric will be more careful and sophisticated.
I discuss this issue with Heather Hurlburt (who disagrees), of democracyarsenal.org, at bloggingheads.tv.
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Jack has written before about what he sees as a growing "National Surveillance State," and I thought I would explain why I think Jack is wrong. What Jack perceives as a "National Surveillance State" is actually a shift from physical world activity to network activity that creates a false impression of increased surveillance powers.
Here's the context. In the old days, co-conspirators met and plotted in person, and the government tried to find out what they were up to by trailing them in person (think "follow that car!") or using undercover agents. These days, though, co-conspirators more often meet and plot online: They use the Internet as a tool to bring them together without having to go and meet in person. This creates a substitution effect: Internet technology takes what would have occurred in public or out in the open and makes it something hidden, bits and bytes crossing over computer networks.
The switch stacks the deck against the government, as it takes away the power it used to have to watch crimes and terrorist plots in the open. For the government to get back the rough degree of power it used to have in the physical world, it now needs to tap into those lines of Internet traffic to collect the information that is the equivalent of what it used to get by open-field surveillance. For example, these days collecting the IP addresses of Internet connections could be the equivalent of the G-man getting in the taxi and ordering the taxi driver to "follow that car"; in both cases, the government is getting information about the whereabouts and conduct of suspects.
To some observers, this will look like massively increased surveillance, even (to add a snappy title) a National Surveillance State. Look, they will say, the government has added computers, and surveillance; they used to leave networks mostly alone and now they tap them. But in truth the government will be merely getting back the kind of power it used to have before the bad guys took advantage of the Internet's substitution effect.
Of course, different people will disagree about what powers the government should have, either in the setting of criminal law or terrorism. And the actual translation from physical environments to virtual ones is extremely complicated. But I think it's quite misleading to look at the increased use of computers by the government and see this as part of a new "Surveillance State."
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continue reading at Balkinization . . .
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The D.C. Circuit's Judge Douglas Ginsburg recently returned to his old stomping grounds, Harvard Law School, to speak on the subject of Law & Economics.
He reflected on the history of the study of Law & Economics -- a
course of events in which he played a substantial part -- and then,
moving from the campus to the courthouse, he turned to the question of
what role Law & Economics plays in his work as a judge:
Careful to not oversell the effect and future use of law and Economics
Ginsburg ended with these personal views of the usefulness and best
practices for law and economics in the courtroom. . . . Judge
Ginsburg cautioned on how much law and economics should factor into the
final decision making process of a judge. He stated very simply that
"economic insight can be very helpful, less so in deciding cases, but
to help the judge spot economically dubious arguments along the way."
He laid out his concept that it is the "tools of law and economics"
that are important and offered that "a few simple receipts would carry
the judge, the counselor, and the statesman a long way."
Judge
Ginsburg is (rightfully) one of the federal bench's most
highly-regarded judges, and his recognition of the limits of Law &
Economics befit his judicial temperament. That said, I can't help but
think back to a 1997 article by Judge David Sentelle, the new Chief
Judge of the D.C. Circuit (and for whom I once enjoyed the great honor
of clerking): Law and Economics Should Be Used For Economic Questions (Harvard Journal of Law & Public Policy, vol. 21, p. 121).
In
that article, then-Judge Sentelle argued that "[t]he more judges use
economics to decide cases that do not turn on purely economic
questions, the more their resulting conclusions tend to be utterly
irrelevant to the real questions before the court or so blindingly
obvious that they could better be described as stemming from common
sense than economic analysis." Judge Sentelle's analysis focused on
the example provided by a concurring opinion in the D.C. Circuit's en banc decision in Crawford-El v. Britton,
93 F.3d 813, 838 (1996), in which a judge relied on a Law &
Economics analysis -- including a discussion of demand curves! -- to
resolve the question of what evidentiary standard a plaintiff must
satisfy to defeat an assertion of qualified immunity.
Ever
the gentleman and colleague, Judge Sentelle never identified the author
of that concurrence. Of course, by now you'll guess that the author
was none other than ... then-Chief Judge Ginsburg.
Did Judge
Sentelle's article dampen Judge Ginsburg's enthusiasm for Law &
Economics analyses? I suppose it's impossible to say. But now you know the rest of the story.