Big Changes

Big changes are coming to Law Prof on the Loose.

Starting tomorrow, I will be on leave from GW while I serve as the Director of Research and Policy of the Administrative Conference of the United States ("ACUS"). I anticipate returning to my regular academic position in 2012.

I haven't spoken to my new boss about this yet, but I probably won't be blogging about politics, Supreme Court cases, and other public affairs while working for the government. I'm not planning on taking down the pre-existing blog posts (just as I am not recalling any of my prior publications, either), but further posts will have to be different, if they appear at all.

Expect no posting for at least a month or so, and then, if I blog at all, it will probably be on topics far removed from public affairs. Poetry, perhaps? Recipes, anyone?

Faithful Readers, I have appreciated your interest and support. It's been a little over three years and not quite 600 posts, including a couple of guest stints on Concurring Opinions and PrawfsBlawg. I've enjoyed this avenue of public expression. Your comments have been interesting and stimulating. Together, we have considered the rights and wrongs of judicial and political decisions, the foibles of the rich and powerful, and occasional notes from culture, sport, and life.

I'll miss you all during this hiatus. Hope to see you again soon.

Will Law School Change?

A hot topic at law schools these days is whether the legal education business model is sustainable. Over at Balkinization, Brian Tamanaha suggests that law schools may be scamming students by taking advantage of students' unrealistic job expectations to get them to pay sky-high prices. An article by Daniel Theis (a student) in the latest Journal of Legal Education sounds the same theme. One of my own colleagues gave us a talk on the subject recently.

A common theme to the argument is that lawyers face permanent, structural changes in the market for their services. Clients, it is said, are no longer willing to pay top dollar for work by junior associates that really amounts to providing the training for these starting lawyers. Therefore, law firms can no longer afford to hire legions of juniors. High-salaried starting jobs at big law firms will become scarcer, and students will no longer be will to pay big bucks for an increasingly small chance at these jobs. In response, the argument goes, law schools will have to figure out how to deliver legal education at much lower cost (through greater use of adjuncts, Internet learning, etc.). There will also be a premium on skills and clinical education that will permit students to graduate ready for practice, and a de-emphasis on scholarship and other professorial activities that don't directly contribute to students' education.

It's always important to keep an eye on large-scale trends and to consider ways to improve. Law schools should take a hard look at trends in the legal world and consider whether they need to innovate. But I am somewhat skeptical about some of the changes that critics claim are inevitable.

First of all, it's not yet clear whether there really is a permanent, structural change coming in the provision of legal services or whether things will go back to their old patterns if the economy cyclically improves. But in addition, I've been hearing for at least a decade that the absurd cost structure of law schools can't possibly be sustained in the face of technological change. In the future, I've been hearing for a long time, a small number of superstars in each field will teach all the classes over the Internet, and the rest of us professors will be lower-paid, glorified TAs, who will grade the exams while our students watch the superstar teachers online.

I'm not saying this could never happen, but it hasn't happened yet. What all of these suggestions overlook, I would say, is something important about what law students are buying with their tuition dollars. Students are buying an education, but they are also buying the reputational value of their degree. That reputational value is very important.

If we professors abandoned every activity we engage in other than teaching, we could probably double the number of classes we teach. Then the school could fire half the faculty and deliver legal education at much lower cost. We could lower the cost still more if we taught everything over the Internet -- perhaps using faculty from other schools, as in the superstar model.

But what would happen to our reputation? A school like GW could probably coast on its prior reputation for five or ten years, but eventually the rest of the academy would notice that we weren't producing anything in the scholarship department, and our reputation would take a big dive, and with it the value of our students' degrees. That is why students have an interest in the scholarly production of their faculty. And as to Internet law schools, well, they do exist, but I haven't heard that their graduates are in much demand.

So I think that those forecasting big changes need to take more account of what schools need to do to invest in the reputational value of their students' degrees. I could imagine more change taking place at schools that aren't in the top 100 -- where the students are relying more on their moxie than on the reputational value of their degree to get jobs anyway. I'm not saying change isn't in our future, but I see an important counterweight that needs to be considered. Schools can't totally change the way they do business without considering what it will do to their reputations.

One change I would support, though, is fuller disclosure. Law schools should publish real information about their students' job statistics. Not just the bilge that is reported to U.S. News, but real information. If students are going to law school with the idea of getting a high-paying corporate job, they should be able to determine what their chances really are. Then they could make a more intelligent decision before they lay out their big tuition bucks.

Majority Rule Redux

An extension of unemployment benefits failed yesterday, because it is supported by a mere 57% of Senators.

I don't pretend to know whether extending unemployment benefits is really a good idea or not. Paul Krugman keeps saying that we need more of just this kind of government spending now, and he's got a Nobel prize in economics, so I'm inclined to agree with him. But it is at least a priori possible that we have reached the point where it's time to worry more about the deficit than about the recovery, and deciding which side is right is not my area of expertise.

But what I do know is this: our political system is broken, and the filibuster rule in the Senate is the chief culprit.

It's absurd that something supported by 57% of our elected representatives can't get legislatively passed. These days, if an individual candidate gets 57% of the vote in an election, that's a big, solid win. So why can't policies supported by 57% of our elected representatives get enacted?

Health care reform, ultimately enacted with the aid of the Senate's "reconciliation" rule (which doesn't permit filibusters), showed how efficient Congress can be when it isn't bound by an absurd supermajority requirement. The House of Representatives passed a series of fixes to the health care reform bill, the Senate (by a healthy 56-43 majority) adopted them with just a couple of tiny changes, and the House agreed to the changes -- all within a week!

Imagine where we could be if the Senate needed only a majority to pass any legislation. Not just these unemployment benefits, but financial reform, climate change legislation, energy policy reform, and probably even immigration reform could all be accomplished already.

Maybe Congress would enact good legislation, maybe not. Things could be a lot better because Harry Reid wouldn't have to agree to outrageous special deals to buy those last few votes. Things could be worse because the majority would go out of control. But things would get done. And if the people didn't like what got done, they could vote for someone else. That's got to be better than what we have now.

Maybe filibusters made sense at some earlier stage in our nation's history. They might have been OK in past days when there was a gentlemen's agreement to use filibusters only on occasions of great moment. But now that they are used every day, on every kind of legislation or nomination, they are a fatal impediment to basic governance. The filibuster rule must go.

The Hobgoblin of Little Minds

I know it's difficult to maintain methodological consistency over many years of cases, but one might expect to see some basic level of consistency over, say, a month. But even that can be tough.

In today's opinions, Justice Thomas joins a concurrence by Justice Scalia, which chides the Court for relying on the Advisory Committee Notes to a Federal Rule of Criminal Procedure. The Notes are not authoritative, Justice Scalia complains -- only the text of the rule matters. But it wasn't even a month ago that Justice Thomas joined, without comment, a Court opinion that relied on Advisory Committee Notes to a Federal Rule of Civil Procedure, even though Justice Scalia concurred separately, raising the same point. (As I said at the time, Justice Scalia is extending his anti-legislative history campaign somewhat unthinkingly here, but that's another story.)

Are the Criminal Rules so different from the Civil Rules? I don't think so. It looks more like Justices don't sweat every detail of the opinions they join. In today's case, Justice Thomas may have joined Justice Scalia's opinion primarily for its bigger difference with the Court's decision (Justice Scalia thought part of the statute at issue was unconstitutional), and he may not have cared so much about this interpretive methodological detail. The big issue wasn't present earlier this month when Justice Thomas went along with consulting Advisory Committee Notes -- again, perhaps without really intending to commit himself on that particular point.

I know a foolish consistency is the hobgoblin of little minds, but these methodological issues do matter, and a little consistency on them would be welcome.

Trends in Legal Writing

Today's Supreme Court decisions display a recent trend: the statement of facts in the Court's decisions has become so long and boring that the Court has taken to previewing the facts in the introduction. The result is that the introduction contains all the facts you really need to know to understand the decision, so you can skip over the actual statement of facts, which is bloated with unnecessary detail. Check out these examples.

It makes one sigh for the opinions of old, when facts were stated crisply and succinctly and the opinion got right to the good parts. Take a look at Judge Cardozo's classic opinion in Palsgraf v. Long Island Railroad Co.: the statement of facts is one short paragraph. It's kind of like the statement-before-the-statement in today's Supreme Court opinions. If only the Court could limit itself to that minimalist statement instead of using it merely as the preview before the detailed statement.

There's a reason why statements should be short. Not only does it make the opinion easier to read, but it makes the case easier to apply. If a court states 20 facts in its statement of facts, it is implying, or at least leaving open the possibility, that all 20 facts were relevant to its decision. What if the next case has 18 similar facts but two different ones? Do we have to go back to the Supreme Court to find out if those two were critical to the decision? Possibly. If the Court states only 5 facts in its statement, it's much easier to tell whether the decision applies to a subsequent case.

Therefore, the statement should be rigidly limited to relevant facts. Don't embellish.

The Slipperiest Slope

We all know that grade inflation is widespread at law schools, but I had never heard of a school's doing what Loyola of Los Angeles has now done: it retroactively changed grades, by adding half a step (actually .333) to all grades awarded in the last few years. So every B- became a B, every B+ an A-, and so on.

Apart from being a little tough on anyone who got an A+ (I presume that grade isn't being changed), such grade inflation is bad because it amounts to deception. The goal of grade inflation (apparently expressly stated) "is to make its students look more attractive in a competitive job market." That is, the goal is to play on people's perceptions of what the traditional grades of A, B, and C mean, while giving grades that have different meanings.

Employers might fight back by ignoring the grades and relying on class rank instead. That would work -- you could call the grades A, B, and C or you could call them Apple, Fire Engine, and Giraffe, and it wouldn't matter as long as you had class rank -- but schools can thwart that tactic by abolishing class rank. That's what GW did when we raised our grading curve a few years ago.

I voted against the change to our grading curve because I thought it involved deception. And I didn't think that the fact that everyone else is involved in the same deception could justify it, any more than a student would be excused for cheating on the plea that everyone else was cheating too.

Over time, my view has evolved somewhat. As the proponents of the change argued at the time, grades have meaning only as a result of social understanding. There was supposedly a time when "C" meant "average," but certainly today a student who got all Cs would not be regarded as an average student. (I wonder if C was ever really the average grade actually given, or whether we have always lived in Lake Woebegone, where all the students are above average.) There is something to be said for the view that we have to give grades that match the current understanding. If all the other schools are now operating on a B+ average and we give grades on a B average, we are disadvantaging our students, and not necessarily achieving the goal of honesty.

Still, the whole thing leaves a bad taste in one's mouth. As today's NY Times piece observes, grade inflation is a never-ending arms race. Everyone uses the excuse that the social meaning of grades has changed to justify changing their own grades. And there's no point always being the last to catch up to the general trend -- in fact, every school has an incentive to be the leading edge of the trend. That, of course, just makes grade inflation go faster and faster.

It's a classic collective action problem. The problem could be addressed if there were some authority that had the power to impose national standards, but there isn't, and whatever the generally accepted view of the meaning of grades is, everyone has an incentive to cheat a little and have somewhat higher grades than that. There's no good solution, and I'll be torn when it next becomes our turn to raise our grades again.

Snoozer

In case you've been dying to know whether the Carmack Amendment trumps the Carriage of Goods by Sea Act with regard to the domestic inland segment of carriage conducted under a through bill of lading that contains a "Himalaya clause," you're in luck! The Supreme Court provided the answer today. I won't spoil it for you.

Still no Bilski and no decision about the constitutionality of the Public Company Accounting Oversight Board. They're putting off the good stuff for the very end.

Sorry About That

Republican Representative Joe Barton apologized to BP for the "shakedown" the company has received from the White House. Then he apologized for apologizing and took back the word "shakedown."

What was he thinking? Look, the minimum penalty for causing an environmental catastrophe has to be forcing the company to internalize the cost that it has imposed on the rest of us. We don't know exactly how much it's going to cost to clean everything up and compensate those who have lost income, but something in the billions seems highly likely. I don't know if it'll be more or less than $20 billion, which is the amount of the compensation fund BP has set up, but that seems like it's in the ballpark.

The compensation fund seems right on target. People are calling for criminal penalties, but there's nothing like good old money to motivate profit-seeking corporations. Let's say BP saved a couple of million dollars by taking safety shortcuts when building the well. Socking them up for $20 billion, which is 10,000 times that amount, is a powerful incentive. It would cause a rational company to tell its employess, "don't try to save a couple of million by taking safety shortcuts if there's even a 1 in 10,000 chance that it might go wrong and cost us $20 billion."

If we could force profit-seeking companies to perfectly internalize all the external costs that their operations impose, they'd have exactly the right incentives. Of course, the external costs can never be perfectly measured and in most cases there's a lot of litigation costs and uncertainty. But a $20 billion compensation fund seems like a good start.

And by the way . . .

In reading yesterday's Supreme Court decisions, I noticed that there is still no Bilski. The longer they keep us waiting for that case, the more I'm convinced it's going to make a major change in patentability. What could they have in store for us? A big cutback in patentable subject matter, I'm thinking.

Finally

The Supreme Court is finally getting around to deciding some of the more important cases of the Term (Monday's decisions were too boring to mention), and today it came out with the New Process Steel case and determined the fate of hundreds of NLRB decisions.

The question was, can the National Labor Relations Board operate with just two members? The normal membership of the Board is five members, and a quorom is normally three. So you might think that the Board couldn't operate with just two.

But, the Board's organic statute allows the Board to delegate its powers to a three-member group, and then provides that a quorom of such a group shall be two. Presumably, the idea here was for the Board to be able to authorize itself to meet in panels of three, the way an appellate court with many judges does routinely. So if the Board authorized a panel of three to consider a case, and then one of the members was disqualified, the remaining two could decide the case.

But the Board faced an unusual situation: toward the end of 2007, the Board was down to four members -- and two of their terms were expiring shortly. It would soon be down to two members, below the quorom of three.

So the Board delegated its powers to three of the members, including one whose term was expiring, and then claimed, when it was down to two members, that those two constituted a quorom of the group of three! The remaining two members thereby decided almost 600 cases, while the President and the Senate squabbled about whom to add to the Board as new members.

By a 5-4 vote, the Supreme Court has now squashed this maneuver. While recognizing that the Board's action rested on a "textually permissible" reading of the organic statute, the Court effectively said that it just couldn't believe that Congress intended the Board to be able to operate with just two members on a long-term basis. The statutory provision for a two-member quorom of a three-member group was for unusual circumstances, not for hundreds of cases over a period of years, the Court believed.

I have to give this one to the dissenters. I expect the Court is right that Congress didn't intend the Board to operate routinely with just two members, but it probably didn't intend the Board to cease functioning either. Congress probably didn't anticipate that the full Board membership would fall to just two members.

The question is how the statute Congress wrote applies to this unforeseen circumstance. The statute permits delegation of the Board's power to any three members and permits two of those three to constitute a quorom. That's what the Board did. As the dissenters observed, the Board's action was "a thoughtful and considerate exercise of its reasonable discretion when it was confronted with two imperfect alternatives."

Everyone's Got a Theory

Everyone's got a theory as to why mystery man Alvin Greene won the Democratic primary for U.S. Senate in South Carolina. It is quite mysterious how a man who never gave a speech, had no campaign web site, and has $114 in his campaign account could have won the primary -- and pretty handily, too, by 100,000 votes to 70,000 (see page 9 of the results).

But of all the theories, the one that I find most implausible is that somehow the Republicans engineered the result by planting him in the Democratic primary and having large numbers of Republicans cross over and vote for him to sabotage the Democrats' chances in the general election. I suppose it's theoretically possible, because South Carolina's primaries are "open" -- voters can choose which party's primary to vote in -- but it's not the kind of thing you can engineer secretly. To get 100,000 voters to vote for someone nobody's ever heard of requires some notice and planning. You can't just send a secret e-mail to all of the state's Republicans. Someone would spill it. Back in the 2008 presidential primaries, Rush Limbaugh advised Republicans to cross over and vote for Hilary Clinton to make life more difficult for the Democrats (which turned out to be bad advice -- it ended up helping Obama), but he didn't even try to keep it secret.

It's possible that Greene is somebody's plant -- it is a little hard to understand how a man who's being represented by a public defender in a criminal case came up with over $10,000 for the filing fee -- but that still doesn't explain what moved over 100,000 South Carolinians to vote for him.

So I would check into the voting machines (that's another theory), but I wouldn't blame cross-over Republicans.

Oh, and did anyone check whether Vic Rawl, the apparently more serious Democratic candidate, ran a lame campaign?

The Repealer

Senator Brownback, in his campaign for Governor of Kansas, has proposed creating an office of the "Repealer," whose charter is a bit murky at this point but who would apparently have the task of disposing of silly, obsolete, or excessively burdensome state regulations and laws. The suggestion is part of a trend of states to clean up their law and regulation books to get rid of unnecessary and obsolete material. Michigan, apparently, has repealed the laws against prizefighting and dueling.

Wait a minute -- dueling? Look, the idea of going through the law books and getting rid of outdated and obsolete material is a good one. As Senator Brownback points out, it seems as though regulations just increase endlessly and "nothing is ever subtracted from the system." People are rightly frustrated that there seem to be never-ending incursions on everyday freedom, and it's a good idea to check that government regulations which may have made sense when adopted are still necessary, appropriate, and wise, and to get rid of them if they aren't.

But dueling? It's not as though dueling has become OK over time. There used to be a serious problem of people dueling over alleged points of honor -- and let's not forget that dueling involves a private agreement between two people that it's OK for one of them to kill the other. That was properly suppressed, and if dueling were made legal I could imagine some young hotheads taking it up anew. Kids do crazy things, and if you could get around the laws against murder so long as there was an agreement between the people involved I would expect some people would do it.

Fortunately, the stated reason for repealing the dueling law in Michigan is that other, more modern laws clearly make dueling illegal anyway, so there's no need to maintain a specific law against it. But frankly, I would have kept that one. The news headline is "dueling decriminalized," and that's not a headline you want.

No Reservations

Taking a day off from more serious legal topics, let's consider the trend reported by the New York Times today that an increasing number of restaurants are refusing to take reservations and are seating people on a first come, first served basis.

The Times and some of the restaurateurs involved suggest that the no-reservation system is more "democratic" than taking reservations. That's obviously rubbish. Last time I checked, anyone who was capable of paying for dinner at a restaurant was also capable of making a reservation -- all it takes is a telephone or an Internet connection. Reservations are hardly the preserve of some inaccessible elite.

The message sent by a restaurant that won't take reservations is "we don't give a damn how long you have to wait for a table -- it's no skin off our nose if you have an unpleasant waiting experience." The only thing worse than a restaurant that won't take reservations is a popular restaurant that won't take reservations. A popular pizza restaurant in DC -- I won't mention the name, but it's near the Cathedral -- doesn't take reservations, and while it does have good pizza, if you want to eat that pizza you have to spend at least an hour, usually more, waiting for a table, and that's if you go during the week. I don't go their often.

As the Times points out, taking reservations entails costs, and not taking them also means that customers are likely to spend longer in the restaurant's bar and order more drinks, which are a high markup item. So restaurants are just making money by not taking reservations, at the expense of their customers, who have a less pleasant experience.

If a restaurant usually doesn't have much of a wait for a table, not taking reservations is acceptable. Restaurants that refuse to take reservations and that expect their customers to wait for more than an hour before even sitting down might as well turn themselves into airlines -- the real experts in customer non-appreciation.

Not Nuanced Enough

Another interesting tidbit in yesterday's Supreme Court opinion was Justice Scalia's concurrence in Krupski v. Costa Crociere S.P.A. The case involved the interpretation of Federal Rule of Civil Procedure 15. Passing over the details of what the case was actually about, the interesting part is that Justice Scalia objected to the Court's reliance on the Advisory Committee Notes that accompanied the promulgation of the rule.

Now, one might say that this is only to be expected -- after all, Justice Scalia has waged a long-standing war against reliance on legislative history. But really, the Advisory Committee Notes seem quite different from the kind of legislative history to which Justice Scalia typically objects. Typically, legislative history consists of a report drafted by one committee of one house of Congress, or words spoken in debate by a single legislator on the floor of one house of Congress. Justice Scalia rightly points out that such history might not reflect the views of the full Congress, which is the body that can give the law authoritative force (although, as I have explained at length, the legislative history may be understood as "incorporated by reference" into the resulting laws).

But the Advisory Committee Notes are different. They're more like the "official comments" that accompany sections of the U.C.C. They are prepared by the single, non-bicameral body that prepares the text of the rule. The Supreme Court is aware of them as it puts its official imprimatur on the rule and gives the rule force. The process is quite different from the legislative process. The difference in the processes by which laws become laws and by which the Federal Rules become rules should give rise to different attitudes regarding the value of the history in interpreting the resulting texts. I think Justice Scalia is being inappropriately mechanical in carrying over his legislative history fight into this different arena.

Court Uses Math!

Today's opinion in Barber v. Thomas poses a math problem as well as an interpretive problem. Federal prisoners who behave well in prison are eligible to receive "good time" credits toward service of their sentence. But when exactly should they be released?

The relevant statute says that a prisoner serving a term of more than one year may receive a credit "of up to 54 days at the end of each year of the prisoner’s term of imprisonment," and that "credit for the last year or portion of a year of the term of imprisonment shall be prorated." So if a prisoner is receiving prorated credit while serving the last year of his sentence, how do you calculate the release date?

The appendix to the Supreme Court's opinion actually contains algebra! Having concluded that the provision for prorated credit means that the prisoner should continue to earn credit at the rate of 54 days per 365 days served, the Court works out the necessary equations. I would do it this way: assuming a sentence of y years, let x be the number of days the prisoner actually needs to serve. Then we have:

x + (54/365) x = y.

So, (419/365) x = y.

And therefore, x = (365/419) y, which is about .871y. So for a 10-year sentence, a prisoner who got maximum good-time credits would have to serve .871 * (10 *365) = 3179 days, or 8 years 260 days. The Court did it a little differently but got to the same result.

Cool to see some actual math, even easy math, in a Supreme Court opinion.

But is this the lawful method of calculating credit? That was the interpretive question. The prisoners wanted slighlty more credit, and the dissent argued that a prisoner's credit for each year should shorten the next "year" for which the prisoner could earn credit. Thus, if a prisoner earned 54 days of credit in his first year, that would be credited against his next 365-day year, so he could earn another 54 days of credit in the next 311 days.

I think the Court's opinion makes more sense. The statute provides for up to 54 days of credit "at the end of each year of the prisoner’s term of imprisonment." That sounds like the prisoner must serve 365 days, not 311, to earn 54 days of credit.

Your Share of the Debt

With the national debt at $13 trillion and counting, it was interesting to hear a story on NPR this morning about one woman's efforts to get people to contribute voluntarily to help pay it off. Kay Fishburn, a nurse from Wisconsin, founded "Citizens for a Debt-Free America," which encouraged people to send in money voluntarily. (If you're inspired to do so, the government bureau that will accept your gift can be found here.)

I can't help but admire someone who actually makes an effort to do something about our nation's tremendous debt, and I don't want to sound mean-spirited or curmudgeonly, but I don't think voluntary contributions are the answer to our debt problem, and I'm not sending in anything myself. Good work, Ms. Fishburn, I don't mean to criticize you for trying, but I see some huge problems with your efforts:

First, it's inconceivable to me that voluntary contributions could ever make even a minor dent in the public debt. According to the story, Fishburn's organization managed to raise about $3 million in contributions in its best year. That might seem like a good haul, but when the public debt is in the trillions, $3 million isn't even a rounding error.

Second, the fair and just way to deal with the public debt is for the burden of it to fall on everybody. When I pay income taxes, I know everyone else has to pay them too. The burden of the public debt shouldn't fall only on those who are public-spirited enough to make an extra contribution. What makes taxes tolerable is the knowledge that each individual's contribution is joined with those of everyone else. (Of course there are a lot of infuriating loopholes and special deals in the tax system, which detract from this sense of shared sacrifice, but at least that's the idea and it achieves the goal better than voluntary contributions.)

Finally, and most insidiously, there is a danger in presenting the government with new, free revenue -- it might just spend it. Again, I don't want to sound too curmudgeonly, but really, even if everyone started voluntarily chipping in a bunch extra to pay off the national debt, there's no guarantee that it would work, because Congress might then feel less pressure to control spending. Looking at the performance of Congress in this regard over the past decades, it does seem that, with rare exceptions, substantial deficit spending is a constant in our government, regardless of which party controls Congress or how well the economy is doing. The government managed to run a surplus for a little while under President Clinton, but that was exceptional.

So while I admire and thank anyone who's willing to chip in extra to help pay of the U.S. national debt, I would think that the problem can only be solved by an appropriate mix of tax policy, spending control, and good economic performance at the national level.

You Have the Right

Sorry for the lack of recent content, faithful readers. I was on vacation last week.

The Supreme Court ruled yesterday that a suspect given the Miranda warnings, particularly the warning, "you have the right to remain silent," must invoke that right in order for it to be effective. Answering questions after being given the warnings will be taken as a waiver of the right to remain silent, notwithstanding the statement in Miranda that "a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained." It seems that an arrested suspect must say "I invoke my right to remain silent" -- and "invoke" has to be in italics, I'm guessing -- or the police can just keep questioning the suspect until he breaks down and says something incriminating.

Others have covered the susbstance of the decision, but here's a word about the procedure that may have escaped attention: the case arose in the context of a petition for habeas corpus. That is, direct appeal of the conviction was over, and the convicted prisoner then applied for habeas. In such cases, pursuant to the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA), relief is available only if the state court decision is not merely wrong, but unreasonably wrong, to the point where reasonable judges would all agree that the state court decision misapplies federal law. If the state court judgment is a close call, the federal court is supposed to deny habeas relief even if, in the federal court's best judgment, the state court got the case wrong.

Therefore, whatever one thinks of the Supreme Court's new understanding of how Miranda actually works, it seems pretty clearly unecessary for the Court to have announced its rule in a habeas case. The Court needed to say only that the state court decision was not an unreasonable application of Miranda, without deciding whether it was ultimately correct. That question could have been saved for another day.

Of course, the judges who complain most vociferously when courts allegedly "reach out" to decide questions unnecessarily, or at the behest of parties who supposedly lack standing, or who in some other way aren't presenting the question in a perfectly justiciable posture, are usually the very same ones who produced yesterday's opinion. In the landmark case of Teague v. Lane, for example, Justices Scalia and Kennedy (the other conservatives weren't on the Court yet) joined an opinion explaining that because new rules don't normally apply retroactively in habeas cases, courts asked to articulate a new rule can't even consider the question unless they first decide that the new rule would, exceptionally, apply retroactively, because otherwise they would be announcing an advisory opinion.

So, as usual, judges just can't make up their minds whether they want to be strict or loose in these procedural matters. If I were cynical, I'd say they like to be loose when that allows them to reach a result they favor, and strict when it allows them to avoid reaching a result they wouldn't like. Good thing I'm not cynical!