…and write a WSJ Op-Ed urging the ratification of The Law of the Sea Treaty.
I suppose it is even more appropriate for HENRY KISSINGER, GEORGE SHULTZ, JAMES BAKER III, COLIN POWELL AND CONDOLEEZZA RICE to all join on this Op-Ed as this treaty has been up for ratification for decades!
In light of Justice Steven’s insistence on perpetually dissenting from Citizens United–a case decided two years ago–as a soon-to-be property prof, I propose a rule against perpetuities for perpetual dissents:
A Justice (whether active or retired) can only complain about an opinion in which they dissented for the term-in-being (that is, the term when the dissent was issued) plus four years or until the next Justice is confirmed (whichever happens first).
This may work for a few reasons.
Generally, an opinion that warrants a perpetual dissent resulted from a sharp 5-4 split. Sure, Brennan and Marshall dissented from *every* death penalty case, but no one could conceivably take those dissents seriously after a while. Stevens is very proud that his dissent was based on a “rule of law“–not some public policy (exactly what characterized Marshall/Brennan dissents).
So, I think it is fair game for a Justice to continue to complain about an opinion until one of two things happens.
First, a new Justice is appointed. That may (or may not) be enough to swing the 5-4 split a different direction.
Or, four years elapses. This would give, presumably, the American people a chance to elect a new President, who can (ultimately) appoint a new Justice to change the direction of the Court.
I recognize this rule isn’t perfect, though frankly it makes a hell of a lot more sense than the actual rule against perpetuities (at this point I plan on teaching it, briefly, but not testing it).
I’ll come back to this later.
Justice Stevens, who last I check retired as an active Associate Justice of the Supreme Court, continues to dissent in a case decided nearly two years ago.
But Jus t i c e Al i to’ s r e a c t ion doe s pe r suade me tha t ln due cour s e i t wi l l be ne c e s s a ry for the Cour t to i s sue an opinion expl i c i t ly c r a f t ing an exc ept ion tha t wi l l c r e a t e a c r a ck ln the founda t ion of the Ci t i z ens Uni t ed ma jor i ty oplnlon. For hi s s t a t ement tha t i t i s “not t rue ” tha t for e ign ent i t i e s wi l l be among the bene f i c i a r i e s of Ci t i z ens uni t ed of f e r s good r e a son to pr edi c t the r e wi l l not be f ive vot e s for such a r e sul t when a c a s e a r i s e s tha t r equi r e s the Cour t to addr e s s the i s sue in a ful l opinion. And, i f so, the Cour t mus t then expl a in i t s abandonment of , or a t l e a s t qua l i fy i t s r e l i anc e upon, propos i t ion tha t the ident i ty of the spe ake r i s an impe rmi s s ibl e ba s i s for r egul a t ing c ampa ign spe e ch. I t wi l l be ne c e s s a ry to’ expl a in why the Fi r s t Amendment provide s gr e a t e r prot e c t ion to the c ampa ign spe e ch of some non-vot e r s than to tha t of othe r non-vot e r s .
…
Whi l e I r e cogni z e tha t the membe r s of the Supr eme Cour t ma jor i ty tha t de c ided Ci t i z ens Uni t ed di s agr e e wi th my judgment on thi s i s sue ! I think i t c l e a r – for a l l the r e a sons expl a ined in my Ci t i z ens Uni t ed di s s ent and e a r l i e r in thi s t a lk- tha t the i r di s agr e ement i s ba s ed not on some cont rol l ing rul e of l aw! but r a the r on the i r di f f e r ing vi ews about wha t rul e wi l l be s t s e rve the publ i c int e r e s t .
(I apologize for the bizarre spacing but the PDF has some serious formatting issues and I do not have time to clean it up).
JPS gives new meaning to the concept of the “perpetual dissent.”
Update: Doug Berman comments:
What is Justice Stevens up to? It is hard to see how this speech is not timed to have some influence over the Court and what it will do in the Montana case. Let’s put aside the propriety of the retired Justice speaking about this case (I leave that ethical question to others who know something about the subject—though I predict political hacks on the right will condemn Stevens for making this speech now and hacks on the left will defend him.) But what’s the goal of the speech now? To get the Court to set the Montana case for argument? To buck up the likely dissenters in the Montana case? If it is to get the Citizens United majority to reconsider its opinion in Citizens United, it hardly seems likely to work. His long dissent didn’t do it. What’s different now doctrinally? Bluman? I hardly think that will be enough to convince Justice Kennedy or the Chief Justice. More public criticism? There’s been plenty of that.
So what happens when you can build a robotic teacher that discerns when students are distracted or not paying attention?
The pair programmed a Wakamaru humanoid robot to tell students a story in a one-on-one situation and then tested them afterwards to see how much they had remembered. Engagement levels were monitored using a $200 EEG sensor to monitor the FP1 area of the brain, which manages learning and concentration. When a significant decrease in certain brain signals indicated that the student’s attention level had fallen, the system sent a signal to the robot to trigger a cue. “We can’t do it just at any given moment, we have to try and do it like human teachers do,” says Mutlu.
The robot teacher first told a short story about the animals that make up the Chinese zodiac, in order to get a baseline EEG reading. Next, the robot told a longer 10-minute story based on a little-known Japanese folk tale called My Lord Bag of Rice, which the student was unlikely to have heard before.
During this story the robot raised its voice or used arm gestures to regain the student’s attention if the EEG levels dipped. These included pointing at itself or towards the listener – or using its arms to indicate a high mountain, for example. Two other groups were tested but the robot either gave no cues, or sprinkled them randomly throughout the storytelling. Afterwards, the students were asked a few questions about the Chinese zodiac to distract them before being asked a series of questions about the folk tale.
As the team had expected, the students who were given a cue by the robot when their attention was waning were much better at recalling the story than the other two groups, answering an average of 9 out of 14 questions correctly, as compared with just 6.3 when the robot gave no cues at all. The results were presented at the Conference on Human Factors in Computing Systems in Austin, Texas, earlier this month.
Maybe I could wire my students up to EEG meters? Or better yet, monitor their chatter to see what’s going on. Oh wait.
What’s wrong with that statement? The part that Facebook wants to triple its workforce? Oo that it needs the permission of Menlo Park to do so.