In Case You Missed It...

I want to draw your attention to some posts I thought stood out around the blogosphere for their fairly sophisticated treatment of their respective topics, or simply because the information they provide us is timely if not urgent owing to its political or legal salience. Of course my judgments on this score are invariably a tad idiosyncratic but....

First, Kevin Jon Heller, guest blogging at Balkinization, has an extended discussion of the "The Justice Case," or United States of America v. Alstötter et al. [3 T.W.C. 1 (1948), 6 L.R.T.W.C. 1 (1948), 14 Ann. Dig. 278 (1948)]: "John Yoo and the Justice Case."

Relatedly, at EJIL:Talk! (the blog of the European Journal of International Law), one of the newer (and best of the) international law blogs, see Dapo Akande on the "Prosecutions of US Officials for Torture? Some Issues."

And while we're on international law and politics, two posts from IntLawGrrls are quite informative: first, Rebecca Bratspies on "Worldwide Food Insecurity," and Naomi Norberg on "Iran's Inexorable Sexual Revolution."

At the International Criminal Law Bureau, Cathy Mac Daid introduces us to the 2009 World Report from Human Rights Watch.

At The Immanent Frame, Richard Madsen has a series of posts exploring the relevance of Charles Taylor's much discussed book, A Secular Age (2007), to religious worldviews in Asia. Scroll down to his first post on Feb. 5, "Discerning the Religious Spirit of Secular States in Asia" (the next two posts follow in order).

From Mark Thoma of Economist's View, we learn of an ad that recently appeared in the Washington Post in support of The Employee Free Choice Act and signed by not a few prominent and lesser known economists.

Andrew Perlman raises important issues concerning the election of state judges at the Legal Ethics Forum: see here and here.

The wonderful online Stanford Encyclopedia of Philosophy has a new entry on "the philosophy of technology."

Guest blogger Brian J. Foley stirs things up at PrawfsBlawg with his post, "USA TODAY: Don't Investigate Bush Administration “Excesses” (read: alleged monstrous crimes)." Not a few of the comments reveal a lack of familiarity with just war theory, international criminal law and the literature on "humanitarian intervention."

At the Neuroethics & Law blog, Daniel Goldberg has a provocative post on Michael Pardo and Dennis Patterson's recent paper, "Philosophical Foundations of Law & Neuroscience." Peter Reiner continues the discussion with "Neuroreductionism: not dead yet." Time constraints prevented me from adding my own two cents worth in the comments, but I'm largely in agreement with Daniel and perhaps even more persuaded by Pardo and Patterson's argument than he is.

Lastly, an important review by C.A.J. Coady at Notre Dame Philosophical Reviews (NDPR) of Bob Brecher's Torture and the Ticking Bomb (2007).

How Lawyers Write

(I've been posting reactions to our weekly faculty workshops at the Marquette Faculty Blog. This post is part of that series.)

This week’s faculty workshop presenter was our very own Professor Jessica Slavin, whose talk was entitled “Talking Back to IRAC: Legal Writing Beyond the Paradigm.” The project on which the talk was based has two components. First, Professor Slavin traced the history and questioned the utility of using IRAC and related formulas as vehicles for teaching legal writing. Second, she presented the results of her own empirical study of briefs submitted to the Wisconsin Supreme Court, which suggest that something other than strict adherence to IRAC characterizes the brief writing of at least one set of advocates.

To me, this is interesting and provocative stuff. I find the psychology of writing fascinating (put it together with the process of judging and I could maybe write a whole article about it). Having tried to teach a writing class once, I’ve experienced first hand just how difficult it is to articulate what makes for good writing. For me, at least, this is partly because I go about my own writing in a highly intuitive way. I don’t recall ever consistently thinking about IRAC when writing in a legal context, and I cannot articulate many of the rules of grammar (although I consciously violate some of the more ridiculous “rules,” such as the ones about split infinitives and prepositions at the end of sentences). Given all this, I share Professor Slavin’s sense that there’s something not quite right about a method of teaching writing that suggests that it is somehow a mechanical or rule-driven process. This is not (on my part, at least) to suggest that IRAC-like formulas are not useful, but rather that they are incomplete.

Lately my bedtime reading has included large helpings of the flat-out brilliant David Foster Wallace. (RIP) Wallace, in his essay “Authority and American Usage,*” provides perhaps the best statement I’ve seen about why it’s so hard to teach writing, and why constructs like IRAC seem to fall short. He writes of “the error that most Freshman Composition classes spend all semester trying to keep kids from making – the error of presuming the very audience-agreement that it is really their rhetorical job to earn.” He continues, characteristically, in a footnote:

Helping them eliminate the error involves drumming into student writers two big injunctions: (1) Do not presume that the reader can read your mind – anything you want the reader to visualize or consider or conclude, you must provide; (2) Do not presume that the reader feels the same way that you do about a given experience or issue – your argument cannot just assume as true the very things you’re trying to argue for.

Because (1) and (2) are so simple and obvious, it may surprise you to know that they are actually incredibly hard to get students to understand in such a way that the principles inform their writing. The reason for the difficulty is that, in the abstract, (1) and (2) are intellectual, whereas in practice they are more things of the spirit. The injunctions require of the student both the imagination to conceive of the reader as a separate human being and the empathy to realize that this separate person has preferences and confusions and beliefs of her own, p/c/b’s that are just as deserving of respectful consideration as the writer’s. More, (1) and (2) require of students the humility to distinguish between a universal truth (“This is the way things are, and only an idiot would disagree”) and something that the writer merely opines (“My reasons for recommending this are as follows:”). … I therefore submit that the hoary cliché “Teaching the student to write is teaching the student to think” sells the enterprise way short. Thinking isn’t even half of it.

Wallace seems to have nailed it, though he has perhaps sold his assessment short. This, it seems to me, is the trick not only to Freshman Composition, but to all effective writing. There’s more to it, of course – there’s organization, and at some point one moves from mere concerns about effectiveness to striving for some sort of euphony – but as a description of the basic struggle I find myself engaged in every time I sit down to write, it’s hard to do better. Viewed from that perspective, IRAC appears as the treatment of a symptom rather than the cause. Of course, that’s often all that one can reasonably do. To her great credit, Professor Slavin is struggling with the question of whether, and how, we might do more.

*This essay appears in the collection “Consider the Lobster.” The quoted material is at page 106. A shorter version, which does not include the quoted material, appeared in Harper’s as “Tense Present: Democracy, English, and the Wars over Usage.”

Democrats & Republicans Agree: (Big) Government is Good!

It is essential to keep in mind...that government doesn't only regulate people's lives. By providing the institutional conditions without which modern civilization and economic activity could not exist, government is substantially responsible for the kinds of lives that people can lead.---Liam Murphy and Thomas Nagel

At Balkinization, Jack Balkin convincingly argues that even the Republicans, crass ideological rhetoric to the contrary, are committed to "big government:"

Small government conservatism is an excellent slogan, but it corresponds neither to contemporary realities nor to the actual policies of either party. None of the Republican presidents since the New Deal have really limited the size of government; all have presided over its increase, and in some cases (Nixon and Bush), the growth of government has been quite remarkable. [....]

Despite the Republican rhetoric of small government, the actual Republican political hegemony of the past three decades has not really been directed to reducing the size of government. Rather, it has been about lowering taxes, especially taxes for large businesses, limiting government regulatory oversight, especially for large businesses, and increasing subsidies and government expenditures on subjects that Republicans have sought to subsidize, including, among other things, various business interests and the defense industries.

The Nixon Administration consolidated and expanded the Welfare State; the Reagan Administration ran enormous deficits; and the George W. Bush Administration converted a federal surplus into enormous deficits while creating new bureaucracies in education, health care, and Homeland Security and helping to construct the national surveillance state. While it was doing all this, it also expended about a trillion dollars on an ill-advised war in Iraq. Ironically, its particularly poor stewardship of big government has created an emergency that will probably lead to even more government.

You might think that an anti-tax and anti-regulatory philosophy necessarily means smaller government. But it does not, and indeed, the Bush Administration has shown us how to grow government while simultaneously reducing taxes and crippling regulatory oversight. [....]

So it would help if the Republicans opposed to the "stimulus" plan would overcome their collective self-deception and states of denial and concede once and for all the incontrovertible fact that "government is good!" The anti-tax rhetoric assumes, as Liam Murphy and Thomas Nagel remind us in The Myth of Ownership: Taxes and Justice (2002), that

pre-tax market outcomes are presumptively just, and that tax justice is a question of what justifies departures from that baseline, [a view that] appears to flow from an unreflective or 'everyday' libertarianism about property rights. Though a consistent application of sophisticated libertarian political theory leads to deeply implausible results that hardly anyone actually accepts, in its naive, everyday version, libertarianism is taken for granted in much tax policy analysis.

If we believed market outcomes were in fact presumptively just, we would not look to government "to provide welfare support to those of its subjects who are destitute, without access to food, shelter, or health care," in short, we would not subscribe to the animating rationale behind the Welfare State, nor would those in the affluent states of the northern hemisphere still be living and--globally and thus comparatively speaking--flourishing in "the real worlds of welfare capitalism."

"Everyday libertarianism" also unfairly trades on an untenable picture of the marketplace as set apart from "the government," ignoring the fact that

There is no market without government and no government without taxes; and what type of market there is depends on law and policy decisions that government must make. In the absence of a legal system supported by taxes, there couldn't be money, banks, corporations, stock exchanges, patents, or a modern market economy--none of the institutions that make possible the existence of almost all contemporary forms of income and wealth. (Murphy and Nagel: p. 32)

As Balkin notes above, the anti-regulatory rhetoric serves the narrow interests of casino capitalism and transnational corporations over and above public interests and the common good. And Murphy and Nagel pellucidly and patiently spell out the political virtue inscribed in the prescriptive admonition that "societal fairness, rather than tax fairness, should be the value that guides tax policy."

Professor of Politics at Mount Holyoke College, Douglas Amy, provides us with an unabashed and "unapologetic defense of [government as] a vital institution" at his website, Government is Good. And be sure to check out his laugh-out-loud satirical video, "Who Needs Big Government?"

However belatedly, with Marcus G. Raskin in The Common Good: Its Politics, Policies and Philosophy (1986), this is a propitious period in which to ask ourselves the following questions:

In a time when so many of us feel thrown, or alone and sinking, and in a time when our institutions and knowledge seem to reflect our problems rather than offer any cure or amelioration to them, is there any sense at all in talking about the common good for and among us? In an age of narcissism, selfishness and inattention, is there any value to proclaiming the need for a common good beyond class, or family or self--and trying to show how it just might be achieved?

In an age of deformed institutions and economic turbulence, is there any sense to reinvigorating our social and economic institutions, transforming them so that they will serve the economic, social and psychological dignity of all people? In an age of mass manipulation where politicians package themselves like commodities and where politics is synonymous with power, is there any value to concerning ourselves with a different, humane conception of politics and leadership? [....]

And in a time where people are told to hug old social structures, assert fundamentalist dogmas, and seek the repeal of social gains made by women, poor people, workers, since the French and American revolutions, should not people argue for more rather than less democracy, for more participation rather than trusteeship and oligarchy to protect and extend the gains of the past?

That "government is good" would seem to be an innocuous truism but alas that is not the case. All the same, "good governance" is a necessary but not sufficient condition of the "common good:"

The common good is not static; it shifts with our understanding and our discoveries of what is possible, of what humankind can positively create. In the day to day search for the common good those concerned with political action and those having to make conscious choices soon become aware that the common good is made up of contradictory and antagonistic elements. Often these antagonisms are between the new and the old. But no one should assume that the 'new' or the 'old' is a priori preferable over the other. In the age of modern science there is always a tendency to dismiss the old for the new. Indeed, the market system stimulates this tendency and there is enough that is rotten in tradition, or decaying in the old which justifies revolutionaries and capitalists alike in wanting to begin from scratch to erase history and its artifacts. But the reality is that the path of the common good encompasses the culture of the past, not in the sense that the people should be controlled by another time, but in the sense that the accomplishments and struggles of the past, of other generations, are not to be treated lightly. The accomplishments of others reflect the cumulative power and wisdom of civilization. (Raskin: p. 27)

Reflections on the Bombardment & Invasion of Gaza

We interrupt the schedule of planned posts to draw your attention to the latest issue of the London Review of Books (Vol. 31, No. 2 - 29 January 2009)---

In a post at the end of last year on the Israeli military assault on Gaza I wrote: "I am absolutely convinced that the mass media in this country is constitutionally unable to provide anything remotely resembling fair coverage of what is going on in Gaza...." We now have sufficient evidence for the truth of that claim courtesy of Henry Siegman in the latest issue of the London Review of Books:

Western governments and most of the Western media have accepted a number of Israeli claims justifying the military assault on Gaza: that Hamas consistently violated the six-month truce that Israel observed and then refused to extend it; that Israel therefore had no choice but to destroy Hamas’s capacity to launch missiles into Israeli towns; that Hamas is a terrorist organisation, part of a global jihadi network; and that Israel has acted not only in its own defence but on behalf of an international struggle by Western democracies against this network.

I am not aware of a single major American newspaper, radio station or TV channel whose coverage of the assault on Gaza questions this version of events. Criticism of Israel’s actions, if any...has focused instead on whether the IDF’s carnage is proportional to the threat it sought to counter, and whether it is taking adequate measures to prevent civilian casualties.

Middle East peacemaking has been smothered in deceptive euphemisms, so let me state bluntly that each of these claims is a lie. [....] [emphasis added]

Read the article by Siegman for the specific reasons as to why each of the aforementioned Israeli claims is not true. And then read, on the LRB website, "Responses to the War in Gaza" by Tariq Ali, David Bromwich, Alastair Crooke, Conor Gearty, Eric Hobsbawm, R.W. Johnson, Rashid Khalidi, Yitzhak Laor, Yonatan Mendel, John Mearsheimer, Ilan Pappe, Gabriel Piterberg, Jacqueline Rose, Eliot Weinberger, and Michael Wood.