Selective Exceptionalism?

Adam Liptak’s series on “American Exceptionalism” in the NY Times, the latest installment of which treats the exclusionary rule, connects in some counterintuitive ways with the relatively recent brouhaha about the Supreme Court’s deployment of foreign sources of law. The debate about relying on foreign sources of law has generally seemed to pit those on the left in favor of things like limiting the death penalty against more conservative members of the Court and Congress who are unwilling to rely on international consensus as an indication of what America should do. The topics that Liptak has chosen to discuss, however, indicate that simply polling the world community would not uniformly lead the Court to more liberal results, at least according to our conception of what “liberal” means in the United States.

The Fourth Amendment’s exclusionary rule, prohibiting the admission of evidence obtained through illegal searches and seizures, is a perfect example. As Justice Clark explained in Mapp v. Ohio (1961), which applied the exclusionary rule to the states, the rule functions not simply as a principle of evidence but instead as a “constitutionally required—even if judicially implied—deterrent safeguard.” By punishing the prosecution for obtaining evidence in an illegitimate manner, the rule thereby dissuades police officers from engaging in such conduct in the first place. The exclusionary rule thus furnishes a kind of restraint on governmental intrusion into privacy that would generally be lauded by liberals or libertarians. As Liptak points out, however, other courts—most notably, a Canadian appeals court, the High Court of Australia, and the European Court of Human Rights—have refrained from adopting such an exclusionary rule.

Some of the examples of contravening legal regimes that Liptak cites demonstrate the perils of relying on foreign sources without placing them within the appropriate comparative framework. Although Australia, like the United States, boasts a common law heritage, it notoriously lacks a bill or charter of rights—hence, the considerations that the U.S. Supreme Court is obliged by the Fourth Amendment to take seriously are not similarly available to Australian judges. The European Court of Human Rights, while influenced by U.S. rights jurisprudence, hears appeals from both common and civil law countries, which necessarily boast very different kinds of procedural safeguards for defendants. As Amalia Kessler’s article “Our Inquisitorial Tradition” illuminates, due process may valuably assume disparate shapes within the common and civil law traditions. Hence, the ECHR may justifiably be unwilling to insist upon principles like the exclusionary rule that might fit better within a common than a civil law system. These concerns, as well as others derived from comparative law, should encourage us, in general, to evaluate the relation between any particular instance of American exceptionalism and its justification within the legal system of which it forms a part. In doing so, we may find that selective exceptionalism is not as anathema as it might sound.

The Virtual Conference Cocktail Party

After hearing of a fifteen-foot-high Cass Sunstein being stationed on a screen behind the other participants at a recent conference panel, I started to wonder whether virtual attendance at professional events might soon become the norm. Between our awakening guilt over climate change, the astronomic rise in fuel prices, and the economic and operational woes of the airlines (sidebar vent: US Airways recently cancelled my flight, failed to rebook me, and told me the best option was “ground transportation”), it seems like Skype and other forms of remote convening could become increasingly appealing. The NY Times even reported a recent boom in student enrollment in online classes due to the increased costs of physically commuting to a university venue.

If the incidence of online conferencing does indeed increase, will these events include a cocktail hour? With Skype-like technology, it seems plausible that most aspects of the conference as currently conceived could be fairly easily transmuted into a virtual form. Speakers could continue to deliver their talks or papers and audience members could chime in with questions. At flesh-and-blood conferences, however, social events and the informal conversations that arise are sometimes as important for participants as the official presentations. How, exactly, would the coffee break and the conference reception be adapted for online enjoyment?

I’ve never graduated to a “Second Life,” but even I can imagine a virtual cocktail hour, one that might almost be preferable to its traditional counterpart. We’ve all been caught in The Awkward Conversation at such events, hoping for a friend or acquaintance to intervene heroically. Perhaps, the shoe on the other foot, we’ve had the discomforting suspicion that our interlocutor didn’t really have to go to the bathroom. The online cocktail conversation market could be quite a bit more efficient. Conference attendees might be asked to identify their preferences for kinds of conversations—short or long; in their field or not; centered around a particular issue; and so on. They could then arrange themselves in pairs or groups with separate videoconferencing “rooms.” Perhaps on the main conference screen, attendees would be able to see the arrangements of individuals as they shifted about, and opt to move to another conversation or ask a particular person a question if so inclined.

As with any kind of online interaction, this model of the conference cocktail party might cut down on productive forms of chaos and partake of some of the other downsides of online social interaction. And would the conference budget have to extend to reimbursing participants’ home beverages and snacks? That’s more than the airlines would do….

Davis Through a Religious Liberty Lens

Last month, the Supreme Court struck down the so-called “millionaire’s amendment” to the Bipartisan Campaign Reform Act, a provision that had loosened campaign finance restrictions on opponents of self-financing candidates. Since the Davis v. FEC decision, debates have been proliferating over just how much the case will affect the election law landscape. I haven't yet seen anything though that looks at Davis through the lens of the religion clauses, in the way that Pam Karlan's fascinating new piece, "Taking Politics Religiously," 83 Indiana L.J. 1-20 (2008), suggests could importantly illuminate our understanding of the law of democracy.

As a thought experiment, imagine the regulatory scheme at issue in Davis transposed into an Establishment Clause case involving vouchers. State X considers a law creating a voucher program through which each student can spend $2,300 at the school of her choice. Any school participating in the program has to agree to derive all of its current revenue from the vouchers rather than from other sources. In legislative hearings, a number of individuals express concern that, because Church Y is the only one that has already set up educational institutions and is well financed in the region, students would only be able to opt out of the public school system by attending Church Y's schools and the result would be a de facto, if not de jure, establishment of religion. Would it then be permissible, under the Establishment Clause, for the state to allow new competitor schools to receive private funding above and beyond their voucher receipts until they, like the pre-existing religious schools, had enough money to ensure their continued existence?

Reasoning from Davis, the answer would be “no.” Now, envision Davis translated into the language of the Free Exercise Clause. This effort, I believe, points up the disparity between the Davis majority’s construction of the individual right at issue in that case and its usual approach to rights in other contexts. Imagine that, after the U.S. Supreme Court’s decision in Employment Division v. Smith, the Supreme Court of Oregon, based upon state constitutional protections for religious liberty, decided to judicially grant Native Americans an exemption for peyote use from generally applicable drug laws. In the aftermath of this decision, other religious institutions in the vicinity that had ceased drug-related activities central to their religious beliefs because of their illegality lobbied the state legislature for an exemption from state laws regulating such substances. If the state did indeed create such statutory exemptions, could we envision the Native American Church succeeding in a free exercise-based claim that permitting these other groups to engage in religion-related drug use diluted the symbolic meaning of their own religious practices and thereby generated a constitutionally impermissible burden?

It is difficult, in the free exercise area, to contemplate the Court treating an exemption granted to one individual’s or group’s religious practice as in and of itself imposing a burden on others’ free exercise rights. It is, however, precisely this kind of competitive and zero-sum conception of an individual right that Justice Alito adopted in Davis when he explained that the “millionaire’s amendment” imposed a “potentially significant” and “unconstitutional” burden on the self-financing candidate’s “First Amendment right to use personal funds for campaign speech” (Slip. Op. 12, 14). Given this discrepancy, it will be interesting to see how far beyond the campaign finance arena the Court will be willing to extend Davis’s understanding of a right.

Where Can Legal Academic Work Flourish?

I don’t really mean this as a metaphysical question. Recently, I have soured on the café as a venue for working. Despite—or perhaps because of—decades of addiction to caffeine, and despite a previously inveterate allegiance to coffee shops, from New York, to Cambridge, to Irvine, and even to the Palo Alto Starbucks at the corner of Stanford Avenue and El Camino Real, I now find myself propelled out of every such institution I enter almost as soon as I have stepped inside.

On a few recent occasions, I have thought that I would jostle myself from my routine and head out on the streets of Brooklyn in search of a venue for reading and writing. One place appeared promising and bestowed with a smattering of people seemingly engaged in similar kinds of activity. When I entered though, the agitated fingers tapping on tables rather than keyboards, the I-Pods sitting beside uniform Macs, and the flies making calculated dives at the customers quickly dissuaded me from staying. Most of my other such forays have met a similar fate.

Perhaps this souring on the coffee shop represents a more general phenomenon—just a couple of days ago, Starbucks announced a plan to close six hundred of its stores. Could the café be going the way of the chocolate house, a center of sociability in late seventeenth-century England? Starbucks and its kin seem under attack on at least two fronts. The yogurt craze that commenced in Los Angeles has hit the East Coast now, and places like Pinkberry offer light and airy spaces that promise treats at least supposedly more salutary than a mocha frappuchino topped with whipped cream. And, of course, wine bars may hold renewed appeal for those who pay attention to the reports of red wine’s seemingly miraculous longevity-enhancing powers.

But when, exactly, is it appropriate to work in a wine bar, and what kind of work can one do there? A lawyer friend of mine recently explained how convenient it was to be able to download books to his PDA, because then he could read at the neighborhood establishment without seeming anti-social. According to his account, it is almost always acceptable to consult a Blackberry or its equivalent, but not to bring actual reading material into a bar. So I was a bit surprised recently when walking by a wine bar in Manhattan on the Upper West Side to see someone perched at the window writing, with one hand poised on a glass. Taking heart from this image, and in need of occupying half an hour while waiting for an appointment, I walked in and placed myself on a nearby stool. At first, I furtively secreted my Westlaw printouts beneath the table, hoping the other occupants wouldn’t notice, but when two more women entered and appeared to be making the gestures of writing, I decided I could be more obtrusive about my activity. The experience was quite satisfying, and I concluded that I would definitely return. On my way out though, I looked more closely at what these other seeming Barbeiteren were doing—all three were filling out series of pastel cards in immaculate handwriting. Perhaps wine bars weren’t meant for law work after all….

Preserving the Right of Resistance

For a couple of weeks, I will be guest-blogging over at Prawfsblawg and will be cross-posting there.

In light of Justice Scalia's insistence on the exceptional requirements of war in Boumediene, and his excoriation of the majority's opinion for "mak[ing] the war harder on us," I was somewhat surprised to discover very vivid traces of England's seventeenth-century civil wars being treated with distinct approval in Justice Scalia's opinion in Heller. Indeed, as the opinion makes evident, the kind of "self-defense" that the right to bear arms should preserve is not simply the kind that would result in less crime, but rather the kind that would permit citizens to menace government with the threat of its dissolution.

Throughout the case, Justice Scalia refers back to the context of seventeenth-century conflicts between religious dissenters and the Crown, situating his discussion of the English Bill of Rights--which he views as containing the predecessor to the Second Amendment--within this context. His most extended treatment of the history makes evident the extent to which the right was one designed to ensure the capacity to resist political authority:

"Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. . . . These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed. . . . This right has long been understood to be the predecessor to our Second Amendment. . . . It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants . . . [b]ut it was secured to them as individuals, according to 'libertarian political principles,' not as members of a fighting force.

By the time of the founding, the right to have arms had become fundamental for English subjects. Blackstone . . . cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, 'the natural right of resistance and self-preservation,' and 'the right of having and using arms for self-preservation and defence' . . . . Thus, the right secured in 1689 as a result of the Stuarts' abuses was by the time of the founding understood to be an individual right protecting against both public and private violence." (Slip Op. 19-21)

Even if construed as rights to be exercised by individuals, the rights of resistance and self-preservation mentioned here were not, in seventeenth- and early eighteenth-century England, envisioned as simply ensuring the ability of one lone Protestant to attend religious services or protect his land. Instead, these rights were viewed as those which, at least under certain circumstances, could be exercised by a number of insurgents in the service of revolution. Perhaps then we should next ask the Court when, under Heller, we are authorized to bear arms not solely to protect ourselves against burglars in the night but rather against our own government. When would that not just render us enemy combatants?