Toby Stern has a great question on his blog about when justices are obligated to give up continuous dissents. He cites as an example the consistent 4 dissents in the Rehnquist Court's recent line of federalism cases, although the same question could be (and has been) posed about Justice Brennan and Justice Marshall's death penalty dissents after Gregg v. Georgia.

As I wrote Toby, I'm a bit on the edge of reasonable debate when it comes to stare decisis. I think that the whole concept is questionable, and generally don't have a problem with judges dissenting again and again, so long as their dissents are reasoned decisions. (That's my way -- perhaps unfair -- of distinguishing what the current four are doing in 11th Amendment cases from what Justice Brennan and Justice Marshall did for many death penalty cases).

Gary Lawson wrote a great article on this in 1994. The Constitutional Case Against Precedent. (I've only dipped my toe reading in this area, but for one response, see Richard Fallon's essay here).

If I was trying to start from scratch to construct a theory on when judges should follow precedent and when they shouldn't, I suppose I'd spend a lot of time on reliance, i.e., the more constitutional doctrine and policy that rely on the decision in question, the more compelling the reasons someone should have for not giving up and going along. The converse, I think, is also true. The more that related constitutional doctrines and policies, &tc. shift away from the precedent, the less deference it deserves. That's what gets us to Brown, which, of course, we must always.

But that is still a pretty loose standard. I'm not sure how you can tighten it, though, without giving up a lot of discretion (see Brown, Barnette, et al.) that is probably worth keeping.

One thing that I hear a lot from pro-Roe people is the canard that "of the 30-something justices who have considered the decision, only 6 or so have said it's bad law." I think generally this argument is symptomatic of the problems liberals have with creating plausible constitutional theories, but it might be a rough rule of thumb as to the appropriateness of persistant dissents.

WHAT? A POSTING ON RULE 11? Howard was kind enough to point to an interesting case out of the Third Circuit on Rule 11 sanctions.

I don't know enough about the law underlying Rule 11 (and left my copy of the rules at the office so I can't read the advisory notes) to know whether the majority or the dissent have the better of their argument regarding the advisory notes and previous applications.

If the question comes down to objective or subjective reasonableness, and I'm dealing with a clean slate, I think the majority has the better of the argument. We've been round and round and round again these questions in First Amendment law and in interpreting Franks v. Delaware. The pattern seems to be clear -- when enforcing sanctions (whether libel judgements or exclusionary rules) and we are more concerned about overinclusiveness (punishing conduct we shouldn't' be punishing) rather than underinclusiveness (letting slide conduct we should be punishing), we use a subjective standard. This ensures that courts will target only those with bad motives, not the merely incompetent.

In other situations the desirability of protecting the incompetent seems clear; in First Amendment (public figure) cases, the value of protecting editors and reporters outweighs whatever marginal tarnish a public figure gathers; in police affidavit cases, the value of protecting police officers against the onslaught of challenges to warrants makes sense, even if it means sacrificing the privacy-protecting objective standard.

In the case of the courtroom, the due process concerns of the client, not the court, should predominate.

Think of it this way: who is hurt by a sanctionable motion under Rule 11? Is it the opposing party -- no, because by definition when a court applies Rule 11 it has recognized the weaknesses of the underlying motion. Opponents have ways of challenging objectionable filings -- they're called response or reply briefs. They may incur costs more than they would have otherwise, but in the grand scheme of litigation . . .

Rule 11 protects the courts -- their time, their dignity (whatever that means), their ability to administer justice efficiently. As between those prudential concerns and the party's concern to be represented as much as possible, the courts should lose. Their dignity and efficiency aren't worth that much.

So, why I am wrong? Email rule11-at-hotmail.com

THE SINGLE DUMBEST BILL EVER INTRODUCED IN CONGRESS. I'm sure it has a lot of competition, but I can't conceive of anything more stupid, insulting, unpatriotic, stupid, wasteful, ignorant, and stupid than this. I hope the next time Representative Brown-Waite decides to introduce a bill, she lets it set in her file cabinet for a couple years.

It reminds me of Bob Dole's old line about Newt Gingrich: "Five file cabinets in his office. Four big ones, labeled "Newt's ideas." One small one, labeled "Newt's good ideas." Brown-Waite should see if she could borrow one of the first four.

THREE QUICK THINGS on hump day.

1. I think everything Josh Marshall has written over the last few days is worth reading. And rereading. So, why not go do it?

2. This paper that Larry Solum highlights sound very interesting, and I'm looking forward to reading it, but it does raise Simon's First Rule of Constitutional Interpretative Theory: Any theory that relies on capitalizing "We the People" is probably (rebuttably) crazy. See, e.g., this.

3. I hope (assume) Howard is joking. But I think it's a little crass. Maybe it's just me, but I can't find anything funny at all about Texas's killing spree.

COLLEGES AND CONSTITUTIONAL LAW. Eugene also points to FIRE's new guides on religious liberty, student fees, judicial processes, free speech, and first year orientation.

My problem is this: no question that when pressed, I will take FIRE's side on any of the "hard" questions any of these guides raise (for those of you following at home, I'm on the Smith/RAV/Good News/Dale side of the liberal camp). And I haven't had the chance to read the guides closely. But I can't help but think that some of their examples miss the point (and might even be off the mark). No question that in non-collegiate settings the government can't discriminate (based on viewpoint). It must, in most (all?) situations treat the "We support tolerance for gay people" group with no more, or no less, respect than it treats "We support intolerance for gay people" group.

Does the university share the same burden? I'm not sure. I know all the reasons why it should, but it seems, as I've mentioned before, that we liberals (classically defined) can't avoid all content or viewpoint-based normative decisions. Should college or university administrators -- or student governments -- treat a group wishing to promote inclusion and tolerance of all members of the student body the same way that it treats a group promoting intolerance and social divisions? FIRE, and caselaw, suggests that they should. I'm not convinced.

To forestall the influx of outraged emails: I know (from first-hand student government & campus policy experience) the problems with drawing the sorts of lines I want to draw. But that doesn't stop me from wanting to draw them, or thinking that someone, somewhere, should.

A final note: I haven't read all of FIRE's guides, but another thing that concerns me is their tone, e.g., the description for their first year orientation is "FIRE’s Guide to First-Year Orientation and to Thought Reform on Campus contrasts the legitimate purposes and intentions of campus orientation sessions with current practices and effects, revealing how these sessions have evolved in frightening fashion in the hands of college administrators." (Emphasis mine).

Sure there are bad programs, or bad events within good programs. But first year orientation programs, done well, can have an enormous positive impact on a student's college career, in part because they force students outside their comfort zone. I hope students don't mistake that discomfort for reasons to sue.

SPEAKING OF VOLOKH. Eugene wrote something this morning I'd like to disagree with: "But it's not clear why this sort of line-up would happen here, and Scalia and Thomas don't enlighten us (and, of course, they have absolutely no obligation to enlighten us on this)."

Of course the justices have no formal obligation to enlighten us; for precedential purposes, we treat their silence as acquiescence of Justice Ginsburg's reasoning. But I think that Eugene's casual observation highlights a serious problem with our judiciary -- the cloak of silence covering its work.

There are many threads in that cloak: the apolitical judiciary; the absolute secrecy surrounding deliberations and judicial work product; the ability of almost any judge - if he or she so chooses - to avoid a public statement of their view on anything outside the bounds of the case (and sometimes, within the bounds of the case).

Some of these protections make sense, but when it comes to the Supreme Court, especially, I get worried. Lower (inferior?) courts have strong incentives on properly and fully explaining their reasoning -- if they don't, they are liable to be overturned (although in fairness this doesn't happen very often). The Supreme Court, though, don't suffer those constraints beyond what a justice needs to gain votes in conference.

Obviously there are strong prudential reasons why returning to the pre-Marshall era of judicial opinion writing is a bad idea. At the same time, though, I wonder if there isn't a way to change the way opinions are issued now so that all justices could (must) express their view of the case without sacrificing workable precedent. Maybe a bastardized version of what the ECJ does?

PLEDGE BREAK UPDATE. I don't have a blogroll, and I'm sure all three of my readers know this already, but in case you've been living under a rock: go visit The Volokh Conspiracy. Even though most of its conspirators are a little too conservative for my taste, it is consistently one of the most interesting blogs out there.

JUST A REMINDER. I'm not competent enough to create comments yet, so if you have something you'd like to say to me -- rule11-at-hotmail.com. Email is always appreciated, and if you want, I'll post your comments.

COLLEGE BASKETBALL. For what it's worth, I think Stewart Mandel is right. The Bonnies' players don't have anything to apologize for, despite all the screams from the sports commentariat. John Feinstein, whose work I love, commented on NPR this morning that the team had let down the school, it's conference, and themselves. It seems to me that he has it just opposite: the school let them down, and the conference exacerbated the situation when it banned them from the conference tournament. If the A-10 doesn't want them in its tournament, why should they dignify its regular season?

NEW WAVE IDENTIFICATION TECHNOLOGY. Story from CNN about twin brothers who have made (what looks like to this techno-baby) a huge leap forward in face-identification technology.

What should a good (or aspiring to be good) civil libertarian think about this? I'm generally not fond of any sort of id system, even relatively harmless ones like our DC traffic cams. Still, though, I'd be a fool not to recognize the enormous positive potential this breakthrough has for securing airports and other points of entry.

So how about this compromise: authorities may use the cameras, but only to compare the faces to a pre-existing database of known or suspected bad people. Once the program has cycled through that list, it cannot store the picture, nor can the authorities make any effort to identify, tag, or track people who do not show up in the database (obvious exception for ongoing on-camera crimes (e.g., mugging), and perhaps an exception for warrant-based tracking in certain situations).

This doesn't sound so bad to me. Am I right, or is my civil libertarian alarm bell malfunctioning?