Friday, June 19, 2009

Beverley McLachlin or Dick Cheney?

The Supreme Court is pretty anxious about its secrets, even long ago ones.

The Globe and Mail reports that the Court has sent out an e-mail threatening its former clerks with legal action if they talk to a social scientist doing an institutional study of how the court works. The study would have been anonymous.

For reasons discussed by the Ectomorph, it is unwise to get in a legal battle with the appellate court of last resort.

Surely, there's no reason anyone should ever know how really important decisions get made. How did we lose Sunday shopping or legal restrictions on abortion? What happened with patriation anyway? It's none of your damn business.

Thoughts on Binnie on Original Intent

Scalia and Binnie had a set-to on originalism at some forgotten conference half a decade ago. It can be found in (2004), 23 S.C.L.R. (2d).

Binnie acknowledges a heavy debt to his clerk, Patricia McMahon, an academic historian, and I don't think he was just being overly generous.

For the most part, it is reasonably sensible and just rejects a cartoon "original intent" school that no serious person supports anymore anyway. Binnie says he can see merit in Scalia's more sophisticated original semantic meaning views. He points out that nineteenth century courts did not look with favour on extrinsic evidence of what politicians thought they were doing when they enacted statutes, including the BNA Act, but of course Scalia hates that more than anybody.

Binnie notes that originalism has played a big role in the Canadian courts' interpretation of education rights and s. 96 (which constitutes the federally-appointed superior courts).

An originalism that is just about linguistic change won't have much effect on interpretations of a document written in 1982. The only significant change since then is that "sex" now just refers to the act and we would no doubt use "gender" in section 15 if it were written today.

Binnie's defence of the Motor Vehicle Act Reference is no good, though. (Perhaps in another post I'll say why._

People Don't Want a Do-Gooder President

Everyone thinks that people that agree with them or are otherwise like them are more moral than people who disagree with them or are different. That's natural selection, baby.

Still, we can sort of distinguish between the goody-two-shoes in politics and those with a more direct connection to the dark lord. LBJ and Richard Nixon have their defenders: by any reasonable account, LBJ was the most successful liberal president other than FDR. But even their staunchest supporters would be unsurprised to find out they were on the wrong side of judgment day. Joe Clark and Brian Mulroney had basically the same politics, and Mulroney was certainly more successful, but if Mulroney told you what time it was, you'd double check.

Marnie asserted that in 2008, Americans were looking for someone more moral as President than GWB, and that Obama has disappointed them. Anyone who had illusions that Obama was something other than a successful Chicago machine politician because of his professorial demeanour and talents was mistaken. Obama's a calculating pol, which he has shown in his realist response to the Iranian fracas.

But were Americans looking for something else? Something more idealistic?

I doubt it.

Let's start with his base. Obama was the perfect embodiment of the McGovern coalition of high-status highly-educated cosmopolitan whites and racial/ethnic minorities. Did they love him because he was moralistic? No, they supported him because he was one of them

Next he won over the partisan liberals (the "Kossacks") who were initially attracted by John Edwards. This is one of the most tribalist groups in American society, for whom procedural scruples are the clearest sign of weakness of character. They were suspicious of his talk of bipartisanship and his professorial approach to ideas he disagrees with, but eventually decided he was the best they were going to get. THEY weren't looking for Jimmy Carter.

But Obama didn't get the whole of the Democratic coalition. In fact, as we may dimly recall, he had a rough ride in the second half of the primary contest. Was that because the other half of the Democratic coalition were looking for greater morality in public life? No, it was because HRC was able to make the white working-class part of the Democratic coalition wonder if this guy had the stones to fight for them.

So in the Democratic primary, no one was looking for idealism and niceness, and in fact the reputation for such characteristics was a liability.

What about the general election? "Yes, we can" and all that crap?

I seriously doubt that anyone not actually enrolled in a liberal arts university bought any of that. Again, it was a liability for Obama that he was putting that "inspirational" stuff forward. However, McCain was not able to capitalize as well as Ms. Clinton, because his Senatorial self-regard is tied up with his image of himself as above the partisan fray. His policy positions are pure moralism. So Obama was able to persuade people that he was old and crazy, and that his vice-presidential nominee was dumb and crazier, and won.

Also, there was a financial meltdown.

Thursday, June 04, 2009

Obama's Cairo Speech

First rate. As he admits, of course, it's much harder to actually bring about better relations. But a US President is now actually a positive force.

Reading Judge Sotomayor (II)

I'm not sure about Judge Sotomayor's future as a quantitative social scientist:

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases.

That seems like a claim that differences in gender and ethnic background explain at least half the variance in decision-making, in other words to an r-sqaured of greater than .5. But she rests it on a mere finding of statistical significance in a minority of cases:

The Judicature Journal has at least two excellent studies on how women on the courts of appeal and state supreme courts have tended to vote more often than their male counterpart to uphold women's claims in sex discrimination cases and criminal defendants' claims in search and seizure cases.

Wednesday, June 03, 2009

Reading Judge Sotomayor

The full sentence is:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging.

"Possibility" must refer only to "inherent physiological or cultural differences", because it occurs in the parenthetical phrase, and the main clause asserts that "our gender and national origins may and will make a difference in our judging."

So it follows that she is *asserting* that gender and national origins make a difference, and not just a difference in plumbing or choice of bathroom, but "in our judging." She is further asserting that this is caused *at least* by differences in life experience, but possibly by other factors.

She is not asserting that this difference is caused by inherent phsyiological or cultural differences, but she is asserting that (a) it's possible and (b) she doesn't abhor or discount the possibility.

She may be limiting the possibility of "inherent physiological" differences influencing judgement to gender, while entertaining "cultural" differences in relation to national origin. This is plausible both because the prospect of inherent physiological ethnic differences affecting judges is highly politically incorrect, and because she doubtless knows that "Latina" is a cultural and not racial descriptor.

Tuesday, June 02, 2009

Purposes of Federalism

Marnie takes issue with my claim that "it's hard to see why you would have a federation if you don't have free trade within it." and with the connection between intra-federation free trade and the "national treatment" and "most favoured nation status" principles of international trade law.

Free trade within British North America was definitely one of the objectives of Confederation, and it was motivated largely by the loss of the Reciprocity Treaty at the hands of the protectionist and anti-British Republicans. See both the federal "trade and commerce" power in section 91 of the BNA Act and the words of s. 121, "All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces."

"National treatment" and "most favoured nation status" are non-discrimination principles. Goods produced and services supplied from other countries should neither get worse nor better treatment than those produced and supplied in your own. That's the basic norm of international trade law. It is also enforced between the American states by the courts under the "dormant commerce clause." Unfortunately, it has relatively little (but not zero) support in Canadian constitutional law.

Barry Weingast defines the requirements of growth-inducing federalism as fourfold:

F1. Hierarcy There exists a hierarcy of governments with a delineated scope of authority. (Ideally, Lord Atkin's watertight compartments.)

F2. Subnational autonomy. Do the subnational governments have primary authority over public goods and service provision for their territories? (The subsidiarity principle.

F3. Common market. Does the national government provide for and police a common market that allows factor and product mobility?

F4. Hard budge constraints. Do all governments, especially subnational ones, face hard budget constraints? (Not if Danny Millions or Ahhnold can help it, they don't).

F5. Institutionalized authority. Is the allocation of political authority institutionalized or within the sole control of one of the levels of government?

When you get all five of these, federalism promotes effective government and economic growth. When you don't, it doesn't.

Interestingly, Canada was really only able to maintain all 5 of these conditions when its federation was policed from outside, i.e., by the Privy Council. Since we let the final decisions be made by a branch of the federal government, all 5 of them have declined.

Monday, June 01, 2009

If Diversity and Feedback are good for decision making, then courts must be bad at it

Apparently, there's a vacancy on the US Supreme Court, and President Obama has nominated Judge Sotomayor of the Second Circuit to fill it.

Judge Sotomayor wants made some remarks to Berkeley law students that she hoped a "wise Latina woman" would do better than a white male at the judicial craft.

It has since been clarified that Judge Sotomayor misspoke. She was not claiming that Latina judges are in every respect better than crusty white guys, but only that diversity creates better decision making.

There's no doubt that Presidents deciding on Supreme Court justices have always considered diversity. In the nineteenth century, it was mostly just regional diversity. In the twentieth century, there developed a Catholic, a Jewish and then a black seat on the court. In Canada, we have of course always required three judges familiar with Quebec's civil code, and everyone would like to have an aboriginal nominee with passable credentials. These things are political reality, and there is no sense of "merit" such that it could always and everywhere trump it. Anyway, Judge Sotomayor seems to have the qualifications, along with a moderate and somewhat unpredictable judicial record.

So do the liberals win this argument? No, because the very point they rely on undermines the case for strong judicial review.

There is indeed some evidence that group decision-making is improved when those involved are relatively diverse, and therefore less inclined to groupthink. However, that fact isn't necessarily good for judicial liberalism, as we have come to understand it. No matter what their race and gender, appellate justices are necessarily an undiverse bunch. They have all been indoctrinated in the folk ways of a single profession. They are all in the top decile of intelligence, with extreme workaholic tendencies and bourgeois lifestyles. They live in Ottawa or Washington. They are bowed and scraped to all day by soft-spoken advocates and keener clerks. They almost never encounter the results of their decisions, with the principal feedback they get coming from other judges and law review articles written by people with less life experience than they have.

I'm not one to glamourize either politicians or voters, but they are a more diverse bunch. If diversity's so great, maybe we should leave the big decisions to them