Eugene Volokh's Blog, page 2585
March 25, 2012
Borat Comes to Life
The AP reports:
Kazakhstan has called the playing of a spoof of its national anthem at an international sporting event "a scandal" and demanded an investigation of the incident.
Maria Dmitrienko won a gold medal for Kazakhstan on Thursday at the Arab Shooting Championships in Kuwait, but during the award ceremony the public address system broadcast the spoof anthem from the 2006 movie "Borat," which offended many Kazakhs by portraying the country as backward and degenerate.
Thanks to Victor Steinbok for the pointer.
NHTSA vs. Effective Navigation
Cnet has a disturbing report on how federal regulations could destroy effective vehicle navigation systems in the name of curbing distracted driving. The cruel irony of this sort of effort is that less-effective and less user-friendly navigation systems will make many drivers less safe, as they strain to figure out where they are going. Modern GPS devices, animation and all, are less disruptive to a driver's attention than unfolded maps on the driver's lap or written directions. (Hat tip: Instapundit)
National Security Federalism in the Age of Terror
That's the title of a new paper in the Stanford Law Review by Columbia Law School's Matthew Waxman (link to SSRN). Federalism is under considerable discussion these days, of course, largely in relation to the "economic Constitution." But there are important questions of federalism raised by the "national security Constitution" as well, and Waxman's article explores them.
One topical example of national security federalism is raised by the controversy over NYPD surveillance of various Muslim groups. It is easy to view this issue in familiar terms of substantive balances or tradeoffs of security versus privacy – and seen in those terms, the natural solutions seem to lie in tightening and enforcing substantive restrictions and guidelines that govern police intelligence activities and investigations. Waxman's new article is important for focusing instead on the broader structural and institutional issues – the federalism issues – at stake here, too: What role should local police agencies play in terrorism prevention, and how should their cooperation be organized horizontally (among local police agencies) and vertically (between the federal and local governments)? How much discretion should state and local governments have in performing counterterrorism intelligence functions, and what are the dangers and opportunities in localized variation and tailoring? (Below the fold, the abstract from SSRN.)
National security law scholarship tends to focus on the balancing of security and liberty, and the overwhelming bulk of that scholarship is about such balancing on the horizontal axis among branches at the federal level. This Article challenges that standard focus by supplementing it with an account of the vertical axis and the emergent, post-9/11 role of state and local government in American national security law and policy. It argues for a federalism frame that emphasizes vertical intergovernmental arrangements for promoting and mediating a dense array of policy values over the long term. This federalism frame helps in understanding the cooperation and tension between the federal and local governments with respect to counterterrorism and national security intelligence, and also yields insights to guide reform of those relationships. The Article emphasizes two important values that have been neglected in the sparse scholarship on local government and national security functions: (1) accountability and the ways vertical intergovernmental arrangements enhance or degrade it, and (2) efficiency and the ways those arrangements promote public policy effectiveness. This Article reveals the important policy benefits of our shared federal-local national security system, and it suggests ways to better capture these benefits, especially if terrorism threats evolve to include a greater domestic component.
Upcoming Appearance on C-SPAN's Washington Journal
For readers who may be interested, I will be on C-SPAN's Washington Journal from 8 to 8:30 AM tomorrow to talk about the upcoming Supreme Court oral argument on the Anti-Injunction Act, and whether or not it precludes the individual mandate lawsuit. The AIA issue is somewhat technical. But it does tie in to one of the key constitutional questions at stake in overall individual mandate litigation: whether the mandate is constitutional because it is actually a tax. Although the Fourth Circuit ruled otherwise, most lower courts have concluded that the AIA does not apply to the anti-mandate lawsuits because the mandate is not a tax as that term is defined in the Constitution.
I might have instead appeared on Washington Journal on Tuesday to talk about the main individual mandate oral argument. But unfortunately I will be at an international academic conference in Montreal that day – ironically a conference focused on the question of whether judicial review in federal systems promotes nationalization or decentralization.
March 24, 2012
Can the Federal Government Pass a Compulsory Education Law?
I was trying to think of a good example to illustrate the Federal government's lack of a general police power as opposed to the states' inherent police power, with an example that doesn't implicate serious "substantive due process" concerns. So here goes: All states have compulsory schooling laws, some to age 18, others to age 16. No one seriously questions the constitutionality of these laws.
But let's say the Federal government decided to pass legislation, modeled on longstanding state laws, requiring all residents of the United States to attend school until age 18 or face [some penalty--a fine, or being drafted into "national service" or whatever]. A resident of a state where schooling is only mandatory until age 16 sues, claiming that this is beyond Congress's enumerated powers.
The government claims that it has the authority under its Commerce power to require school attendance. After all, not only is education is a huge percentage of the American economy, the federal government already regulates the education market to a substantial degree and spends tens of billions of dollars annually for education, money that will to some extent be wasted if children don't continue their education at least through high school. Thus, it's both necessary and proper that the government impose an education mandate to ensure that it's education policies will be successful.
To the argument that a sixteen year old dropout isn't engaged in economic activity, the government argues that staying out of school is itself an economic activity, because, among other things, it reduces the amount of federal and state aid to one's school, makes one less marketable in the employment market, reallocates resources that would otherwise be spend on the dropout's education, and makes it more likely that one will need to spend money on education in the future. Moreover, no one is really "out" of the education market, because everyone is learning things all the time, whether from t.v., one's friends, Facebook, or formal schooling. Finally, by dropping out of school, a sixteen year old is raising the expected costs to the government and society of future crime, welfare payments, and the like.
Anyone think the government should win?
UPDATE: The government has at least one more argument: Given interstate mobility, the dropouts from "16″ states may move to other states and impose costs on them due to their lack of education. Nevertheless, I have a hard time seeing these arguments getting five votes from the current Court.
Can the Police Arrest Someone for Homicide, When It's Clear He Killed But Likely in Self-Defense?
To arrest someone for a crime, the police need probable cause to believe that he committed the crime. But what if it's clear that the person committed the act (e.g., intentionally killed someone), but it seems likely that he has a good affirmative defense (e.g., self-defense)? My view is that probable cause should be probable cause to believe that the conduct was indeed criminal, and if the self-defense case is strong enough, that negates probable cause to believe that a crime (as opposed to a justifiable homicide) was committed. But when I looked into this several years ago, I saw that the few courts that had discussed the matter were split.
Florida law, though, clearly resolves this: "A law enforcement agency … may not arrest [a] person for using force [in a self-defense situation] unless it determines that there is probable cause that the force that was used was unlawful."
So in Florida, the police must have probable cause to believe that the defendant wasn't acting in lawful self-defense in order to arrest the defendant. It's not enough to say, "we have probable cause to believe that you killed the victim, so we'll arrest you and then sort out later how strong your self-defense case is."
I can't speak with confidence to whether in the Martin/Zimmerman case the police indeed have such probable cause (which, as you may recall, is a not very clearly defined standard that is well below proof beyond a reasonable doubt, and probably somewhat below preponderance of the evidence).
'Living With the UN': Why Did I Choose Hoover Institution Press?
My book, Living With the UN: American Responsibilities and International Order, is now in stock and on-sale at the Hoover Institution Press website. I have a copy in hand and I'm delighted to be holding it. It's not quite like holding your new baby – but for an inanimate object, it's closer than you might have thought.
It will be a couple of weeks – April 17, I understand – before it is available through Amazon, Barnes & Noble, and other online sellers. A Kindle edition will be released on April 17 as well. My thanks to the Hoover folks, my editors, and others for their patience in this long running project. Over the next couple of months, I will be talking about various themes in the book – UN-US relations, the nature of the UN, the different ways in which the US should engage (or not) with different parts and functions of the UN. To start with, however, I wanted to go to a very different topic – this one about publishing, choosing a publisher, and why I chose the Hoover Institution Press.
This is a policy essay, not a "scholarly" book – it has about twenty footnotes for the whole thing, and a bibliography of secondary sources aimed to be accessible to those without a university research library or knowledge of how the UN online archives work. My interest in this case is dissemination of the ideas in the book, not staking out academic turf. So my general choices were three: One, find a commercial trade publisher, which seemed improbable given the subject matter, the way it is written, and my lack of trade press publishing in the past. Two, find a university or academic press; this seemed like the obvious thing, and in fact there were several options that direction, notwithstanding that this is something like the opposite of the dense academic monograph. Third, go with a think tank policy press in which case, given the history of the project and my affiliations, it would be Hoover.
The Hoover publishing folks have been marvelous – let me strongly recommend them if your publishing suits their programs. They have been fabulous on production values, editing and copy editing, all the professional production elements. They have been patient to a fault in waiting for the manuscript and letting me make later changes. And they have excellent marketing staff and have a commitment to getting the book out there in a way that is only sometimes true of academic presses whose primary audiences are academics and university libraries. But it is true that several academic presses are great in all these ways, too, so one has to ask, why consider a think tank press? After all, isn't a think tank press – even one associated with a university, like Hoover – taking a hit in academic prestige and respectability?
I thought carefully about these issues before choosing to go with Hoover. In part this is a matter of how one sees academic prestige in public international law and, particularly, international organizations – which are, after all, human institutions and not purely legal propositions. The human experience of them matters – at least if you want to say the things about them that I say in this book. I had a long career in the human rights and international NGO world before coming to teach in my mid-forties, dealing with international organizations frequently, and whether in private or public law, I have a relentlessly practical streak that, at least in inherently political fields such as public international law, can't see formal legal categories as dispositive. International law for me is always fused with pragmatism (to draw from Michael Glennon's fine book on this topic), politics and diplomacy, realism – policy, in other words. But formal academic "brilliance," to put the question of academic prestige in that way, likewise requires a more formal (and closed) system that allows one to show in some surprising and (one hopes) useful way that x is true and not y. Policy, on the other hand, is about criteria of plausibility, not truth formally as such or purely for its own sake or, frankly, sheer marvelousness in reasoning. One can do that in many areas of domestic law, because the legal framework drives the outcomes as such, but not in my field.
So prestige is not precisely my aim because I don't think the subject matter or the writing work to that end. This is not to say that it has not been researched with the same care that the purely scholarly work would have – on the contrary, it is over-researched for such a short book, and it is also infused with a large number of interviews and discussions of a more journalistic nature than would drive a purely academic book. I will say that it wears its substantive learning deliberately very lightly. I spent a lot of time a few years ago understanding the UN budgeting, accounting, and fiscal control systems – such as they are – from the inside out, and I am pretty certain I am the only public international law academic ever to have done so, at least among the Americans. But if prestige in the sense of building my own academic capital is not the issue here, then what do I want?
Dissemination, mostly. I want to get this book out into the hands of a couple of audiences: the Washington and international organization policy audiences; the international NGO world; academics in international law, organizations, politics, and international relations; both the Obama administration (despite this book's many criticisms) and the Republican campaign; and finally classrooms at the undergraduate, public policy and graduate school, and law school levels. The key issue there is price. The book retails directly from the Hoover site for $19.95. Hoover could sell it for more, but it is in the business of dissemination of ideas too – it and I are aligned. By contrast, the decisive factor for me in deciding what press was price – the other publishers wanted to sell at minimum $35, in several cases $40. I'm not sure anyone would want to adopt this as a text in a class on international organizations – not as the main text, but as the short, fairly readable critique and counter-view – but I can't imagine anyone wanting to adopt it at $40 as a supplemental text.
It is true that everyone will discount, starting with Amazon and Barnes & Noble. But I think that just gets it down to $20 – down to where Hoover starts its pricing. Whereas I suspect that Amazon will discount the book very quickly to below $15, and I saw on a B&N page that it would sell at $13.50 – straight out of the box. Now, if I made my living selling books or if Hoover made its living publishing them for a profit, this would be a big problem. But we are both in the ideas-dissemination business. We can live with this. I think people can be persuaded to take a look at this book with a $13 price point (in hard cover, let alone Kindle), whereas at over $20 that is not nearly so likely. Moreover – and this is very cool – at some point down the road, in a year or two, as sales dry up, Hoover will make the book available free as a pdf off its website. So if your priority is dissemination of ideas and the book, rather than academic signaling and red queen behavior, this is not a difficult call.
Let me invite your ideas on how I should market this book. If my aim is dissemination of ideas, getting the book and its ideas out there, both into policy-maker and influencer hands as well as a broader university and interested-public audience, what should I do? For this kind of book, we are in somewhat uncharted territory. I'm not self-publishing a Kindle romance novel and this book is not coming from Penguin Press from an established writer with a track record and some built-in audience. I want to take advantage of social media and the new word of mouth it implies … tell me what my marketing strategy should be.
Lethal Self-Defense, the Quantum of Proof, the "Duty to Retreat," and the Aggressor Exception
The tragic death of Trayvon Martin has led to more discussion of self-defense and the "duty to retreat." I wanted to offer a few thoughts about the broad issues.
1. The costs of the legal acceptance of lethal self-defense: To begin with, I think both self-defense enthusiasts and self-defense skeptics have to acknowledge that the law's accepting lethal self-defense poses very serious risks, not just to criminal attackers but to the law-abiding. (When I say self-defense, by the way, I generally also include defense of others.) First, there is a risk of accidents, where a well-intentioned defender erroneously assumes he is being attacked.
Second, there is a risk of false claims of self-defense being used as a cover for murder. When D kills V in alleged self-defense, there is often only one witness left: D himself. He can say, "I heard V threaten to kill me, saw him reaching for his waistband, and was sure that he was going to shoot me"; and unless the jury concludes beyond a reasonable doubt that D — again, the only witness — is lying, D will be off the hook, even if D was well aware that V was no threat at all and just wanted to kill him. (This could happen either if D was planning to kill V all along, if D and V are involved a dispute and D kills V in a moment of anger, or if D and V are involved in a fight that doesn't suffice to authorize deadly force, but D uses deadly force in any case.)
Third, there is a risk — especially with guns — of an innocent bystander being hit. And, fourth, there is a risk that even a justifiable killing will lead to a cycle of retaliation, including not just against the defender but also against others in the defender's family or community, perhaps with innocent bystanders being accidentally killed as a result. Blood feuds, race riots, and gang wars often happen this way.
As I said, this is something that bears on the arguments of both self-defense enthusiasts and self-defense skeptics. The former group has to acknowledge that the legal acceptance of lethal self-defense is a mixed blessing, with real costs (and, again, not just to criminals). The latter group has to acknowledge that our legal system (and, to a large extent, most of the world's legal systems) protects self-defense despite these costs. The costs of forbidding lethal self-defense, or cutting down on it in dramatic ways (e.g., accepting only the use of lethal force against an immediate threat of death, and not, for instance, of serious bodily injury or rape), are seen — in my view, rightly so, as exceeding the costs of accepting it.
2. What the legal system does about these costs: The question, then, is: Given our acceptance of lethal self-defense, what does the legal system do and what should it do in an attempt to minimize the costs? Let's briefly discuss several approaches.
a. Bans on possession of deadly weapons: One possible solution is to ban the possession of various kinds of deadly weapons — whether for all people or for some, and whether just in public or both in public and at home. This is indeed the American approach with regard to felons and some other prohibited categories, and the approach of about 10 states as to guns in public places. (The remaining 40 or so states generally allow any law-abiding adult to carry a gun in public places; a few don't requite a license, and the rest do require a license but give it to pretty much all law-abiding adults who apply.) I don't want to rehearse the arguments on this in detail here, but they are in many respects similar to some of the cost and benefit arguments related to self-defense: The availability of a gun can make a mistaken killings more likely, or can increase the likelihood of situations where someone (who is otherwise law-abiding enough to comply with a gun carry ban, if such a ban was in place) kills in anger but then is able to cover it up with a false claim of self-defense. The unavailability of a gun can make it harder to resist those attacks that people should be able to resist. Again, this is familiar territory, which I leave to others.
b. Allowing convictions unless the defendant proves self-defense by a preponderance of the evidence: This appears to be the old common-law rule: While a murder defendant's identity, intentional action, and the like have to be proven by the prosecution beyond a reasonable doubt, the affirmative defense of self-defense has to be proven by the defense by a preponderance of the evidence. If the jury thinks that, say, there's a 40% chance that the defendant is telling the truth when he says he heard the victim threaten to kill, and reach for his waistband, then the defendant would be convicted of murder (or manslaughter, if that's what he's charged with).
This approach was upheld as constitutional in Martin v. Ohio (1987), but is now the law in only one state, Ohio. In all other states, once the defense introduces some evidence of self-defense, the prosecution must rebut that with proof beyond a reasonable doubt. If the jury thinks there's a 40% chance that the defendant is telling the truth when he says he heard the victim threaten to kill, and reach for his waistband, then the defendant would be acquitted. The theory that "better that [say] 10 guilty men go free than one innocent man be convicted" extends to self-defense claims: "Better that 10 men who committed murder and lied about the need for self-defense go free than one man who killed in justifiable self-defense be convicted." The worry about fake claims of self-defense has not been seen as serious enough to retain the old common-law/now just Ohio rule.
c. The duty to retreat: Another means of trying to preserve the right to self-defense while minimizing the costs of lethal self-defense has been the so-called "duty to retreat." This is something of a misnomer — it's not a true duty, such as the duty to testify when subpoenaed, but rather a rule that
even if D reasonably believes that he is facing an imminent threat of death, serious bodily injury, rape, kidnapping, or, in many states robbery and some other crimes from V,
so long as D can escape this threat with complete safety
by leaving the altercation
except when D is in his own home (or, in some states, in his workplace),
D does not have the right to engage in lethal self-defense because such lethal self-defense is no longer necessary given the availability of a safe retreat.
I hope to say more about the duty to retreat in a separate post, but for now let me observe a few things. First, most American states rejected the duty to retreat even before the recent flurry of new "Stand Your Ground" laws. That's what the LaFave & Scott 1986 treatise reports, and I have no reason to doubt it. Now that many states like Florida have, in recent years, have rejected the duty to retreat, the "no need to retreat" rule appears to be the supermajority rule in the United States, though there is still a substantial minority of the states that adopt a duty to retreat.
Second, the duty to retreat has always been, at least in principle, a narrow doctrine. There is generally no duty to retreat from an assailant with a gun, since any retreat in such a situation would be quite likely to increase your risk of being shot as you're retreating (compared to what the risk would be if you shoot first). A typical "duty to retreat" scenario would instead be when there's a fistfight, and you fear serious bodily injury since even a fistfight can cause such injury, but you can easily leave (for instance, this is right outside your home, or a friend's home, and you can go inside and close the door, or you're in your car and can just drive away). The same may apply to someone who is at some distance from you, and is threatening to attack you with a knife (that is not likely to be thrown) or a stick, and you can get away without risk that the person will run up and indeed attack you.
Third, if the worry is that someone will lie about the alleged need for self-defense in an "only two people were there, and now one of them is dead" scenario, the duty to retreat doesn't really do much about this worry: The killer's lie could just as easily rebut the applicability of the duty to retreat, for instance if the killer claims that the victim seemed to be reaching for a gun.
Fourth, even when there are some witnesses, the question will often turn on what the facts were, and neither story would yield a different result in duty-to-retreat vs. no-duty-to-retreat states. I don't want to speak in detail about the Martin/Zimmerman case, because the facts are so unclear. But if the dispute is between "Martin was trying to leave, and Zimmerman started shooting" and "Martin was on top of Zimmerman beating him, and Zimmerman reasonably feared serious bodily injury so he started shooting," the duty to retreat would be irrelevant under either scenario. It would only be relevant if the facts show that (1) Zimmerman did reasonably fear death or serious bodily injury (or some other forcible felony) — since absent such a fear, lethal self-defense wouldn't be allowed — but (2) the fear didn't stem from a worry about Martin possibly pulling out a gun and shooting him (since in such a situation, one can't retreat with complete safety), and (3) Zimmerman could have avoided the threat of death or serious bodily injury with complete safety by leaving. That's possible, but there's only a pretty narrow range of possible circumstances that fits all these criteria.
[UPDATE: I meant to include this paragraph, but neglected to in the first version.] Note that the duty to retreat is generally seen as arising only when the threat of death or serious bodily injury, and therefore the need to use deadly force in self-defense, arises. So even in duty-to-retreat states, a person does not lose his right to self-defense by simply doing something that's potentially dangerous, such as approaching or following a potentially dangerous person, or going into a dangerous park. Instead, he loses his right to self-defense only if, once he sees the mortal peril, he is able to retreat with complete safety but doesn't. See, e.g., Matter of Y.K. (N.Y. 1996). (He might also lose his right to self-defense on the different basis that he is the initial aggressor, but that's a separate doctrine with separate requirements; I discuss it below.)
d. The aggressor exception: The duty to retreat, then, is a much less important factor in self-defense cases than many seem to assume, partly because it's a minority rule and partly because it applies only a narrow set of cases. There is, however, another long-established means that the law has used to limit lethal self-defense: The principle that someone can't use lethal self-defense (or, in some situations, any self-defense) if he was the aggressor in the first instance, at least unless he tries to withdraw from the fight first.
Sometimes, this principle can stem from the basic principle that self-defense can only be used against unlawful force. If someone tries to kill me, and I take out a gun and shoot him, he doesn't then have a legal right to take out his gun and shoot me in supposed "self-defense." My action would be legal because it was defense against unlawful force, but his wouldn't be because it is defense against lawful force. (Note that this is something of an oversimplification. For instance, if you reasonably mistakenly believe that you need to inflict serious bodily injury to defend against me, or if you're a small child or insane or acting under duress, you might not be acting unlawfully in your use of deadly force; but I can still defend myself against you. If you're really interested in that, check out Model Penal Code § 3.11, which deals with this by defining "unlawful force" as nonconsensual force "the employment of which constitutes an offense or actionable tort or would constitute such offense or tort except for a defense (such as the absence of intent, negligence, or mental capacity; duress; youth; or diplomatic status) not amounting to a privilege to use the force."
But the aggressor principle also has some independent scope as well. Here is the Florida version:
The [self-defense defense] is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2) Initially provokes the use of force against himself or herself, unless:
(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
So in principle the duty to retreat does exist under Florida law for those people who have "[i]nitially provoke[d] the use of force." (Recall that the duty to retreat arises only as to lethal self-defense, which is available only when the person reasonably believes he's in imminent danger of death or great bodily harm, so that clause of (2)(a) does nothing there.) And it's possible that, depending on the factual circumstances — and on how Florida courts interpret "initially provokes" — Zimmerman's actions might have been a provocation. (Say, for instance, that Zimmerman started unjustifiably chasing Martin in a way that made Martin worry that he himself was going to be attacked, or started a fistfight with Martin, or perhaps even grossly insulted Martin.)
And this might possibly be a stronger duty to retreat than the norm; for instance, the question is whether the provoker "exhausted every reasonable means" to escape the danger, and not whether he could escape the danger with "complete safety." On the other hand, courts might read "exhausted every reasonable means" as referring only to means that allow a retreat with "complete safety." If that's so, then, as I noted above, the duty to retreat would likely make a difference only in very narrow circumstances.
* * *
In any case, these are some thoughts that I had on the subject. I hope to blog a bit more about the "duty to retreat" soon, and perhaps on other matters, though I hope to stay away from debates about what actually happened in the Martin/Zimmerman situation, given how contradictory the various factual accounts are.
Review of the Hunger Games Movie
My wife and I saw the Hunger Games last night. I described the core plot of the Suzanne Collins book series on which the movie is based here:
In the far future, what's left of a post-apocalyptic United States is ruled by a tyrannical central government (the "Capitol") that oppresses and exploits twelve subordinate districts. Every year, each of the districts must send two teenagers (a boy and a girl) to participate in the Hunger Games, a nationally televised game show where they fight each other to the death until only one survives. The government uses the Games to entertain the public and divert their attention away from its oppressive nature, while also reminding the districts that any attempt at rebellion is doomed to failure. Main character Katniss Everdeen ends up in the Games after she volunteers to take the place of her younger sister, who was chosen in the selection lottery.
Overall, I thought the movie was extremely impressive. The first half – which covers the time before the contestants enter the Games arena – was almost letter-perfect. It effectively developed the characters, the tyranny of the Capitol, and Collins' critique of "reality TV," of which The Hunger Games is an effective parody.
There were, I thought, a few problems in the second half, which portrays the actual combat in the arena. The filmmakers cut key conversations between characters without which certain plot developments don't make as much sense as they do in the book. But these flaws are relatively minor in scale.
They certainly don't outweigh the film's many strengths. Perhaps the most significant is the way the filmmakers managed to translate the story onto the screen without being able to rely on Katniss' internal monologues, which convey many of the most important elements of the story in the book. Also, Jennifer Lawrence is very good in the lead role of Katniss, and I thought the other actors were effective, as well.
As for the much-debated political message of the series, it is just as ambiguous in the movie as in the books. However, this movie only covers the first of the three volumes, and the later ones get into political issues more.
This movie did benefit from the fact that The Hunger Games is easily the strongest of the three novels in the series. The producers face a more difficult challenge when it comes time to make the two sequels, where the series' shortcomings are more evident. Still, this is an excellent beginning.
Three Quick Thoughts on Recent Media Coverage of Paul Clement
In the run-up to the Affordable Care Arguments, there has been a ton of media coverage about Paul Clement, the attorney who is doing the bulk of the arguments for the challengers. Examples include the Associated Press, New York Magazine, and NPR's Nina Totenberg. Three quick thoughts on the coverage:
1) Although I agree that Clement is the best proven Supreme Court advocate of his generation, I'm not as sure that Clement was the best pick for the state challengers in this case. The constitutional challenge to the mandate tries to invalidate the signature legislative achievement of a Democratic president, and it was thought up by political opponents of the President late in the running and then adopted by many Republican lawmakers. Clement is a marvelous lawyer. But if I were hiring counsel to argue against the mandate, I would have tried to counter that political narrative by hiring a prominent Democrat — or at the very least, someone not clearly affiliated with the Republican party. Choice of counsel can send a signal to the Justices that the case is more about long-term principle and less about short-term politics. Michigan's decision to hire former Rehnquist clerk and right-of-center appellate lawyer Maureen Mahoney to defend affirmative action in Grutter v. Bollinger provides a useful reference, I think. Of course, it may be that no prominent Democrat would have taken the case, especially after Mahoney's representation of Michigan is sometimes thought to have sunk her chances of being nominated to the Supreme Court by President Bush a few years later. But it would have been worth trying.
2) A lot of the press reports point out that Clement argues before the Justices without notes. I've only argued one Supreme Court case, but at least based on my very limited experience, that particular practice doesn't seem notable to me. You don't have time to look at notes when you're up there at the podium. And you've gone over the argument so many times in your head that you don't need to. (Law students who have taken an open-book exam and then later realized that they never looked through their outlines know how this works.)
3) Near the end of the Nina Totenberg segment on Clement, Tom Goldstein expresses doubt that Clement could get confirmed to the Supreme Court given his association with Republican causes that are deeply controversial on the political left. For what it's worth, I don't think we can know what the chances of confirmation might be without knowing the make-up of the Senate that would do the voting. Over the last decade, we have moved towards a system of near uniform party-line voting for Supreme Court nominees. As long as the President's party controls the Senate and the Senators in the President's party support the nominee, nominees generally have the votes to get through. The open question at this point is what happens when the President's party is in the Senate minority. Then you run into lots of interesting game theory questions for each side, but the process is sufficiently unpredictable that it's hard to know who could make it through.
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