Baker v. Carr and the problem of alternative data compression

One of the areas of mathematics and statistics that interests me generally goes under the heading of data compression. It’s closely related to “machine learning,” if that helps. The idea is that one has a whole lot of variables that one observes about something (“independent variables,” to use a statistics term) and one has a result that follows (“a dependent variable”). And one has this data for a whole bunch of different instances. The idea behind the prevalent technique of multiple regression (well described among other places in Ian Ayres’ fabulous book, Super Crunchers), is that one assumes a “model” of how the independent variables relate to the dependent variable and then sees which coefficients “best predict” the result. The output is basically the statistical distribution of these coefficients and is generally simplified to the most likely value of the coefficients. If one conceives of the law as some sort of system for mapping “facts” into results, one can also use this technique to deduce what the law must be. One “simply” categorizes “the facts” in some numerical fashion (1s can be used for the presence of some fact, 0s for its absence), categorizes the result numerically, and one can develop a regression whose results represent the best estimate of “the law.”

But where did the model come from? Often it comes from some physical intuition about how the system operates or one uses Occam’s Razor to assume a simple linear relationship. This often works well in modeling physical systems. But it may not work well with law where it may be some combination of variables that best predict the outcome, not just some linear combination of the individual variables. And so, in fact, what clever jurists often do is to ferret out combination of variables that seem to predict the outcome of cases and pronounce that to be the law. Indeed, doing this represents one of the chief skills learned in law school. For classic work by a really bright student, see Justice Cardozo’s opinion in MacPherson v. Buick Motor Corp., 217 NY 382 (1916).

But for fat data sets, ones in which there are lots of variables, such as those attempting to capture the complexity of many legal cases, it turns out that there may be multiple “compressions” of the data in which use of just a few variables can predict outcomes quite well. So, for example, in predicting the outcome of an automobile negligence action, one might do quite well by excluding from consideration the color of the plaintiff’s vehicle but might not do well unless the variable “speed of defendant’s vehicle” was present. The idea is to find “compressions” that predict well and that are parsimonious, i.e. some sort of fairly terse expression. Legal rules that take 100 pages to set forth are disfavored by humans, even if they predict well. (Although maybe one can think of a treatise as being an example of a model that trades in parsimony in favor of accurate prediction).

Anyway, it turns out that there are often multiple compressions of data that have roughly equivalent parsimony and roughly equivalent predictive value. They often rely on a different subset of variables drawn from the much larger set of potential variables. Moreover, there may be a set of compressions that lie along a “Pareto Frontier” such that one can not improve parsimony without sacrificing predictive value and vice versa. (You can read about this here). To choose which of these models in fact represents “the law,” is an extraordinarily difficult task in which one often has to go outside statistics and invoke one’s aesthetic preferences, as well as one’s beliefs about what law should look like and care about.

Which brings me to Baker v. Carr. Although sometimes judicial disputes about precedential reasoning are based on different categorizations (encoding) of facts and outcomes, I do not see that going on here. Instead, the case features Justice Brennan’s clever recompression of a data set composed of prior Supreme Court decision’s on justiciability. He ends up with a rule that predicts justiciability based on a disjunctive combination of six factors (“textually demonstrable commitment,” “lack of judicially manageable standards”, etc. ) and not based simply on whether the “Republican form of government” clause is potentially implicated by the case or whether the case is political. Justice Frankfurter in his dissent develops an alternative three-factor compression (including interference with matters of state government) of the precedent data bank that he finds predicts outcomes well. Among the things interesting to me are (1) that while both compressions predict well with hindsight the outcome of prior cases, they arguably diverge on the outcome of this particular case — indeed, this is likely the case for most contested Supreme Court decisions — and (2) the “ships passing in the night” character of the opinions, which do not fully grapple with either the success of the alternative models in prediction or with the non-“statistical” bases for preferring one compression, one vision of the law, over the other. (Although Frankfurter comes close at the end in expressing a preference for justiciability rules that avoid judicial activism in ways that he thinks will create tension in federal-state relations).

Query for students by the way: What values might Justice Frankfurter be sacrificing or ignoring here?

Moral: It is probably useful to see what rule of law emerges from an attempt to compress the dataset implicit in some bank of relevant precedents but to recognize that alternative compressions are often likely to succeed. The process of choosing from amongst the successful models is a yet more difficult problem, one that might be informed by concerns for the robustness of the models — a good model should not lead to absurd results in cases not yet examined — but that will likely be the product of external notions of justice, efficiency and legal aesthetics.

Prudential Limitations: Beyond Article III Standing Requirements

By Charlotte Simon

Coming out of class on Friday, I thought standing was at least theoretically simple: satisfy the three requirements of Article III standing (injury in fact, causal connection and redressability) and voilà, a plaintiff has standing to bring suit. Apparently, it can get a bit more complicated due to prudential limitations on standing… and balloons can be quite controversial.

The controversy occurred in our own backyard (or, rather, in our own big blue sky). The case is Houston Balloons & Promotions v. City of Houston, 2008 WL 5169359, (Dec. 9, 2008 )  (decision currently only available on Westlaw). Houston Balloons & Promotions (“HBP”) leases inflatable advertising balloons all over Texas. If you don’t know what such a thing is, check out their gallery. (I’m a big fan of the “One Buck Buys a Truck” Duck.) Unbeknownst to me, the City of Houston, through its Sign Administration Division, has been regulating signs since it passed the Sign Code of 1980. HBP’s balloons fall under such regulation because they are “attention-getting devices” (“AGDs”), right along with “festooning,” “whirligigs,” and “scintillating lights.” Non-generic balloons disfavored: There are two types of AGDs—generic and non-generic. Non-generic messages are premise-specific (“Grand Opening at Ming-Yang’s Chinese Bistro”) and are therefore considered signs, whereas generic AGDs (“Grand Opening”) don’t qualify as signs. The Houston Sign Code, Section 28-37, requires that local businesses, including HBP customers, register their non-generic AGDs with the City. The problem: Pursuant to the Sign Administration’s interpretation of Section 28-37, the City stopped issuing permits to and refused to register (effectively banning) all AGDs with non-generic messages. Houston rationale: The stated purpose of the regulation is to prevent adverse effects on “the aesthetic environment, safety, and quality of life” in Houston and is an “integral part” of Houston regulation that “seeks to minimalize visual clutter.”

Constitutional challenge: HBP filed suit in 2006, alleging that Houston’s regulation of AGDs bearing non-generic messages violates HBP’s freedom of expression and equal protection under the 1^st, 5^th and 14^th Amendments because of the content-based nature of the regulation. The standing issue: The City filed a motion for summary judgment claiming that HBP lacks standing to bring suit because the regulation doesn’t affect HBP’s activities, only the free speech rights of third-party customers. HBP replied arguing that they have standing because: (1) there is a real controversy between HBP and the City, (2) they have standing pursuant to the overbreadth doctrine, (3) the City had failed to show the regulation advances government interests, and (4) that they have standing on their own behalf (due to damages from loss of customers).

The decision: Citing to Lujan, the court lists the “irreducible constitutional minimum” of Art. III standing requirements and finds that HBP has Article III standing. Element 1, injury in fact, is met because HBP suffered economic injuries (shrinking customer base) and direct economic injuries are sufficient to constitute injury in fact. Element 2, the causal connection, is satisfied because HBP’s declining sales are directly traceable to customers’ inability to obtain permits and fear of fines. Element 3, redressability, is satisfied in that, if the regulation were found unconstitutional, customers would resume leasing inflatable balloons with non-generic messages.

The caveat: So HBP meets Article III standing requirements, but their claim assertion of standing fails due to prudential limitations. The principle of prudential standing is that “a plaintiff must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” So, a court must consider whether the regulation in question grants persons in plaintiff’s position a right to judicial relief. Here, the court finds that Section 28-37 of the Sign Code does not regulate HBP’s actions directly and does not grant HBP the right to relief. Because HBP is free to keep renting out AGDs, it is only HBP’s clients whose freedom of expression is (allegedly) being infringed. Because the City regulation does not directly control HBP, HBP lacks standing to bring suit. (Note: the opinion also contains an interesting section concerning the overbreadth doctrine, but I fear this post is waxing long.)

Stay tuned!: The opinion ends with what is essentially an open invitation to HBP customers to bring suit, if they feel the regulation of AGDs infringes their free commercial speech. Also, because Houston recently adopted Ordinance No. 2008-992, which will ban all AGDs—generic messages, non-generic messages and no messages at all—and will take effect on 1/1/2010, the Court granted HBP leave to amend its complaint to assert a new claim challenging the constitutionality of the new ordinance. HBP would satisfy both Article III and prudential standing requirements to bring that claim.

A founding mystery

By Seth Chandler

No doubt about it, those Founders of the Constitution were pretty darned smart: James Madison drafting a Constitution that has held up more or less for over 200 years, John Marshall figuring out how to implement that Constitution through treacherous political waters, George Washington uniting and leading a new nation still vulnerable to attack, and a host of others. Few of them had the formal education that so many of us acquire today (although some studied Latin and Greek) and none had the educational resources that we regard as relevant to learning. And you try reading by candlelight or firelight some time or writing a lengthy opinion with a prose style as graceful as some of the early jurists in an un-air conditioned office with a quill pen that lacks spell check or the latest Internet collaboration tools.

So, the hardly original question is, how did it happen? How could all these remarkable individuals come together during what was, in some sense, a far more primitive era in which few people’s talents were developed, at just the right time to lead? There are, of course, several possible answers to this.

1. There is the gloomy statistical fluke argument that even if one assumes the distribution of extraordinary individuals to be constant over time, if you run the experiment of history long enough, there will indeed be some period of time when one has a “five-sigma” event, i.e. a stunning good draw from the distribution, and, it just so happens that the random draw we know best is that from the revolutionary era. We can appreciate the wonders that occur upon a lucky draw, but we do not have much ability to encourage its repetition.
2. There is the divine providence argument that, for some reason, external supernatural forces decided that this would be a good time to change the course of history and used these individuals as an instrumentality. On this view, there is nothing one can do to replicate the successes of that generation except perhaps to engage in behaviors thought to enhance the likelihood of a repeated intervention.
3. There is the “forged by events” possibility, that extraordinary events such as the Revolution or life on the frontier created extraordinary individuals of courage and learning. There was something special about this period that distinguished it from other times, even those such as the Civil War, World War II or other periods that truly tested the broad portion of a nation.
4. There is what amounts to a eugenics argument that people who weren’t awfully smart and awfully prudent just couldn’t survive or at least thrive in that period whereas our development and equalizing policies today augment our population today to include those who just would not function in an earlier era.
5. There is the argument of “few distractions,” that the absence of diversions (such as television, the Internet, video games, etc.) left people the time in which to think deeply and to use their imaginations. On this view, there would be lots more George Washingtons today but their brains are being wrecked throughout their development.
6. There is the related political filtering argument that, unlike today, when talented individuals have so many opportunities in business, science and the “academy,” the incentives of the revolutionary era channeled people of talent into political and public life or at least did not channel them out of it. On this view, there are lots of George Washingtons, but they are using their talents in corporate leadership, science or academic positions rather than devoting their energies to the perfection of government.
7. And there is the option of denigrating the premise: really, there was nothing particularly remarkable about the period in which the nation was formed: what they did was not so wonderful (Exhibit A, slavery; Exhibit B, treatment of Indians; Exhibit C, treatment of women) and what we do today is actually incredibly impressive (Exhibit A, technological achievements; Exhibit B, vast bureaucratic state run with at least moderate efficiency).

I’m afraid this post won’t resolve the argument, although I do rather like argument 6. Instead, however, let’s take a closer look at possibility 7 listed above, the idea that there really was nothing special. Any one care to guess what the population of the United States was in 1790 if one eliminates (a) children; (b) women who had precious little opportunity for education and political participation; and (c) Indians and slaves who had yet less?  We’ll do it as a couple of  multiple choice questions.

 

Q1. Which of the cities below is closest in population today to the adult white male population of 1790 America (the first time we have a census)?

(a) New York City; (b) Houston; (c) Philadelphia; (d) San Antonio; (e) Austin 

Q2. Which of the following cities below is closest in population today to the adult white male population of 1790 Virginia?

(a) Philadelphia; (b) San Antonio; (c) Austin; (d) Rancho Cucamonga, California; (e) Beaumont, Texas

The answers are (e) and (e). All the other cities listed have populations that are too large. Data from the United States census shows that the white adult male population — the only folks with much chance at education or participation — was about 771,000, and the population of Austin, Texas is about 743,000. I hope I do not insult my home state’s capital, when I say that I have not seen it produce recently quite the level and breadth of enlightened statesmanship that a like population produced during the revolutionary era. The white adult male population of Virginia, which produced so many of the founders, was 110,936, about the same as that of Beaumont, Texas as of 2007, 111,799. I hope I do not insult Beaumont when I say I do not see its contemporary equivalent of Washington, Jefferson, Marshall, and Madison.

A closer look at an argument of Justice Cabell’s in Hunter v. Martin

By Seth Chandler

Like many others, I suspect, I thought that the Court of Appeals of Virginia had some nerve in defying the United States Supreme Court on the remand from the original decision of the Supreme Court in Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. 603 (1813). I assumed (a) that they were a bunch of “crazed anti-Federalists” anticipating the Civil War and (b) that Oliver Wendell Holmes was right when he said (Oliver Wendell Holmes, Jr., Collected Legal Papers 295 (1920)) that the union would have been imperiled without the United States Supreme Court doing what it did in response: overruling in Martin v. Hunter’s Lessee, the decision of the Court of Appeals.

Having read the opinion of the Court of Appeals, however, I now have a greater appreciation for some of the complexities. I want to use this blog entry to focus on one of them because it sheds light on the formation of the federal judiciary and, derivatively, on Article III of the Constitution.

A lawyer for the faction claiming to own the valuable real estate through devise from Lord Fairfax and not through the Commonwealth of Virginia apparently anticipates Justice Story’s ultimate resolution of the case and Oliver Wendell Holmes’ commentary on it. The lawyer argues to the Virginia Court of Appeals:

“if the appellate power of the Federal Courts be denied, there will be no other mode by which congress can extend the judicial power of the United States to the cases of federal cognizance; that there will, consequently, be no uniformity of decision; that the general government will be deprived of the power of executing its laws and treaties; that the purposes for which that government was adopted, will be defeated, and that, in many instances, the peace of the country will be endangered.”

But Justice Cabell actually has an interesting and sophisticated reply to this argument. He basically says that if this be so, it is a problem of Congress’ making and one that Congress can cure.

All the purposes of the constitution of the United States will be answered by the erection of Federal Courts, into which any party, plaintiff or defendant, concerned in a case of federal cognizance, may carry it for adjudication; for, it was never intended to force the parties into those courts against their will. The right of the plaintiff, to have his case tried before the federal courts, is unquestionable, as he may institute his suit in the State or Federal Courts, at his own option; and it will be sufficient for the defendant sued in a State Court, if the act of congress shall give him the power, to remove the case at any time before judgment into the Federal Courts. I cannot doubt that congress may give this power consistently with the constitution; for, otherwise, the judicial power of the United States might be eluded at the pleasure of any plaintiff.

And, to some extent, he is right. Suppose Article III of the Constitution gives Congress the authority, as most acknowledge, to extend the jurisdiction of the “Inferior Courts” to all cases involving a federal question, including those where the action was originally brought in a state court or where the federal question exists only by virtue of a defense or only in a less direct fashion. If Congress were to exercise that authority and grant those federal courts jurisdiction — perhaps exclusive jurisdiction — then there would be no need for the Supreme Court to be so rude as to overturn state court decisions. The supposed impediment to the uniformity of federal law would vanish; so would the deficiencies of having politically unaccountable state judges deciding the meaning of federal laws, including treaties.

But Cabell’s response puts Congress to a hard choice. Either it has to let state judges decide issues of federal law — including treaties whose interpretation could precipitate war — and forgo federal appellate review or it has to create an enormous federal court system that can handle not only all cases in which the plaintiff’s right derives from a federal law (or treat or constitution) but also those in which the federal law plays a less direct role. Even back in the Nineteenth Century, that might have been a lot of cases. And once you phrase it this way, the luster of Justice Cabell’s clever rejoinder wears thin? Absent clear textual support for such a view, why would one assume that the framers of the Constitution would put Congress to such a hard choice? Why would Congress not also permit a middle ground of “spot checking” under which states are delegated the opportunity to resolve many of these federal questions but that ultimately a federal judge gets to review what they have done?

So, was Holmes right that the union would have been imperiled? Probably, yes. But not because federal control of the Constitution could not theoretically have been achieved but because as a practical matter the federal government lacked the bureaucratic structure, finances and traditions that would have been needed to erect a sufficiently large court structure. Plus, I doubt the states would have been too fond of the large domains of exclusive federal jurisdiction that would have been needed to fulfill Justice Cabell’s creative though flawed alternative universe.

Plurality Opinions

By Seth Chandler

One of the first curiosities students are introduced to in many Constitutional law classes is the “plurality opinion,” i.e. a case in which no opinion fully commands the assent of a majority of voting judges on a court. An example would be Goldwater v. Carter, 444 U.S. 996 (1979), involving the justiciability of a challenge to the President’s abrogation of a treaty. What precedential status is to be given to the opinions in these cases? The following lightly edited excerpt of a law review article, James A. Bloom, Plurality and Precedence: Judicial Reasoning, Lower Courts, and the Meaning of United States v. Winstar Corp., 85 Wash. U. L. Rev. 1373 (2008), does a fine job, I think, of explaining the alternatives currently in vogue and of some roads not yet traveled. Students should not fail to marvel, by the way, at the fact that notwithstanding 200+ years of Supreme Court history and a significant percentage (can anyone find a statistic on this?) of plurality opinions, there is not yet a clear, crispy meta-rule for figuring out what the precedential value of these opinions are.

“[I]n Marks v. United States [430 U.S. 188 (1977)] the Supreme Court articulated the “narrowest grounds” approach. Under the narrowest grounds approach, courts may find binding rationale in plurality opinions, defined as “that position taken by those Members who concurred in the judgment on the narrowest grounds.” There are at least two formulations of the narrowest grounds approach. The first looks for the opinion concurring in judgment that reached the judgment on the narrowest grounds, according that opinion full precedential weight.

“The second formulation looks for particular reasoning within the concurring opinions that a majority of the concurring Justices support, giving that reasoning full precedential weight. However, neither formulation is applicable to plurality decisions when the plurality and concurrence agree on the judgment but disagree about how the law should apply to reach that judgment. Sometimes one of the concurrences and the dissent seem to agree about the reasoning and disagree only about the particular outcome. If in such cases a total of five Justices joined the dissent and concurrence, adherents of the dual majority method find two majorities: an outcome majority of the plurality and concurrence, and a reasoning majority of the concurrence and dissent. This method focuses on numerical support and is typically applied so that any proposition of law from any of the opinions supported by a numerical majority of Justices is binding precedent. Like the narrowest grounds approach, however, the dual majority method is only applicable in cases where the different opinions seem to employ similar reasoning.

“Third, courts sometimes cite pluralities for their results only or disavow them as if they had never been decided. When a court cites a plurality for its specific result only, the court explicitly declines to apply the underlying reasoning and considers only the judgment. When a court disavows a plurality decision, it rejects any application of the decision to facts beyond those contained in the original opinion. Such open rejection is extraordinarily rare.

“Fourth, there are two methods that I will refer to as the persuasive opinion methods. I group the persuasive opinion methods because they measure the relative persuasive worth of each of the different opinions in the plurality to determine which opinion controls as binding precedent. First, the full precedential weight method cites the opinion of the plurality as if it were a majority opinion, ignoring the fact that no numerical majority of Justices supported it. Second, the persuasive effect method treats one opinion from the no-clear-majority decision as binding based on how persuasive the lower court finds that opinion to be. Any number of factors can influence this decision–political, personal, the reputation of the Justice who wrote the opinion, how well reasoned the opinion is, or how applicable it seems.

“Finally, courts could use either of two closely related methods that commentators have not previously described. The first of these two methods may be called the simple reconciliation method. If a lower court applying a plurality decision decides that both the plurality and concurring opinions would produce the same result in the case it is considering, it can avoid the ambiguous precedential value of plurality opinions and simply apply both the plurality and concurrence.

“The second of these two methods is the policy space method, which the lower court can use when the plurality would reach one result, but the concurrence would reach a different result under the facts it is considering. Under the policy space method, the lower court must determine whether to apply the plurality opinion, even though the lead concurrence would not have agreed. This determination is based on the lower court’s evaluation of the factual similarity between the earlier plurality and its own case, and partially on why the lead concurrence would not have agreed.”

Why was March 4, 1801 the date John Adams left office?

By Seth Chandler

The case of Marbury v Madison is triggered in part by the short time between the passage of the Congressional act creating the District of Columbia, 2 Stat. 103 (and various justice of the peace positions) on Friday, February 27, 1801, and the noon of Wednesday, March 4, 1801 on which President John Adams left office. That’s all the time Adams, the Federalist, had to “stack” the judiciary and other offices of the District of Columbia before Thomas Jefferson and his Democratic-Republicans took over and would fill the positions in ways more favorable to their political views. And I bet, like at least one contemporary political official departing Washington, Adams had to move some of his own boxes getting out of office and may not have had a lot of time to focus on last minute administrative details. Anyway, it’s Adams and his subordinates’ failure to quite finish the job that gives rise to this landmark case.

But why was noon of March 4, 1801 the time and date that President Adams had to leave office? I thought this was going to be an easy question. But, it turns out, it’s not quite so simple. I learned a fair amount along this research trail that I thought I would share.

First, the March 4 date was not in the Constitution at the time of President Adams’ departure. It appeared in the 12th amendment (since modified by the 20th amendment) as the failsafe date on which, if there is a “double failure” in the electoral process the Vice President elect becomes President. The “double failure” was (a) the Electoral College failing to select a candidate by “a majority of the whole number of Electors appointed,” and (b) the failure of the House of Representatives, voting by State, to thereupon select a candidate by majority vote. But that amendment, passed substantially in reaction to the bugs revealed by the election of 1800 in the original provisions of Article II, was not ratified until 1804.

Second, there was, so far as I can determine, no statute enacted by the Congress of the United States pursuant to the Constitution (or otherwise), setting March 4 as inauguration day.

Now, true, George Washington had his second term begin on March 4, 1793. And so, since the Constitution says the term of the president is four years, by induction it might be “proven” that John Adams had to leave and Thomas Jefferson got to assume the presidency on March 4, 1801. But how did George Washington know when to start? Particularly since his first inauguration took place on April 30, 1789. I thought that perhaps the answer was that, since George Washington had said it started on March 4, it started on March 4. Few, I suspect, would lightly discount something The Father of our Country had proclaimed, all the more so since he had won the election with a stunning 100% of the electoral votes.

There is, however, a better or at least a more formal answer than “it is March 4 because George Washington said it was March 4.” Turns out, the outgoing Confederation Congress (not to be confused with the Confederate Congress of the Civil War period), passed a resolution on September 13, 1788, “Fixing Date for Election of a President, and the Organization of the Government Under the Constitution, in the City of New York.” (My thanks to colleague Prof. Aaron Bruhl for finding a link to the text). The resolution set the date for “commencing proceedings under the said constitution” as “the first Wednesday in March,” which, in 1789, happened to be March 4. And, thus, the date.

But it’s still not quite so simple. First, it is hardly clear why the actions of the defunct national body, the Confederate Congress, would be binding on the new government, particularly since the Constitution had paid little attention to the provisions of the Articles of Confederation in amending it out of existence. Still, I suppose the approbation of that body, the provision of pseudo “boot code,” gave at least the veneer of legitimacy and regularity to the essentially lawless (thought surely beneficial) usurpation of power represented by the Constitution. Second, if George Washington started his first term – or at least took the oath of office that is supposed to predicate service — on April 30 and the Constitution says the presidency is four years, it is not clear why the views of the Confederate Congress would prevail. Third, I sure wish it was easier to do research on the actions of the Confederate Congress. It looks like the National Archives keeps microform records of its activities, but I have not yet found a convenient Westlaw- or Lexis-like full text source that covers its activites. Not even a public domain Findlaw or Justia. I guess I’m just spoiled wanting everything to be on line so that I seldom have to leave my desk.

Anyway, perhaps readers could point me to a good full text, public domain source of documents from the Confederation Congress. Alternatively, perhaps the Archives could make it a project to put the intriguing documents of that era, which form such an interesting foil to the Constitutional history that followed, into a more convenient and accessible format.

Congressional travel in the 18th Century

By Seth Chandler

The logistics of operating a representative central government were considerably more challenging in the 18th Century and probably the first part of the 19th Century as well.  I asked students to consider, for example, the time for a Congressional delegate either under the Article of Confederation or the Constitution to travel from one’s home state to the seat of government. Here is what one student calculated with the help of a web site that apparently had also considered this issue.

The distance from Savannah, GA to PA according to the website is 728 miles. If traveling on horseback at 7.5 miles per hour, it would take approximately 97.1 hours.  If traveling 8 hours a day, that makes 12.1 days.  Of course, all this assumes travel on today’s roads which are in much better shape and allow for a more direct route than the rough road surfaces in the 1780s. If traveling by coach or carriage averaging 9 miles per hour, the time would be shortened (again assuming on today’s roads) to 80.9 hours, or 10.1 days. And those are probably one-way, best-case times.

So, travel would have been a long (and expensive) process, and I doubt there were hotels with flat screens and hot tubs to pamper the delegate at the end of a day on horseback or cramped in a coach traversing a muddy or snowy trail.  It would certainly make for a different type of relation with one’s constituents to have been subject to these conditions. It might, however, lead to a better grounding in the realities and conditions of the day than exists in today’s world of photo-ops, travel at 30,000 feet, and the luxuries permitted by staff and money.

The student-professor gap

By Seth Chandler

I am over 50. Almost all of my students are not. Many of them are under 25 and were thus born after 1983. There are, therefore, a number of events that I lived through and take for granted in somewhat the same way that all my students lived through and remember the events of September 11, 2001. Often times, I fear, that teachers, particularly those creeping up the mortality curve, forget the gap between what we and our younger students know. So, I designed a little instrument to probe that gap, to see what our students felt they knew about from experience, what they knew about from education, and what they didn’t know much about. The survey can not be called scientific; among other things, I had students fill it out while class was going on. Still, it is probably a crude measure of student knowledge that should, I think, give faculty caution as they move through material, be it in constitutional law or elsewhere in the legal curriculum. Also note that I am not criticizing the “ignorance” of our students; I am sure we appeared as ignorant to the persons who taught us law and who had lived through things of which I had little or no adult recollection (the school desegregation cases, the Steel Seizure, the Cuban Missile Crisis, Miranda) or who knew history from books that I did not — my pre-collegiate history education never ended past the early 20th century.  The attached PDF file shows the results of my survey.

For those who would prefer not to open the PDF file, here is the “executive summary”:

• Certain events with which some faculty may assume personal familiarity on the part of students are, in fact, little known to students. Gruter v. Bollinger, for example, was said to have been “lived through” by only2 students, though perhaps the name of he case was unfamiliar to them, although it was identified as involving affirmative action in law school. The events most frequently said to have been lived through were the impeachment of President Clinton and the cloning of Dolly the Sheep. The introduction of the World Wide Web and the federal raid on the Branch Davidian compound were also events that many students remembered.
• Certain events are largely unknown to students; references to them, therefore, need to be made with caution and with provision of background information. Half or fewer of the respondents said they had much if any familiarity with Gruter v. Bollinger, the Anita Hill / Clarence Thomas controversy, the confirmation hearings of Robert Bork, the National Guard shootings at Kent State University, the publication of the Pentagon Papers, the resignation of Vice President Agnew (only 13% were familiar with that), or Hernandez v. Texas, which was thrown in almost as a “control question” but which gave Mexican Americans significant protection under the equal protection clause.
• High schools appear to ignore many of the events on my list. Only the resignation of President Nixon and the Vietnam war were studied by more than half of my students in high school. The first Gulf War was studied by only 21 of the 62 respondents and only 29 of the 62 studied the end of the soviet Union. Chernobyl and Kent State were still further down on topics addressed.

The only topic that more than half the students said they had studied since high school was the original Roe v. Wade decision regarding abortion. The Vietnam War came in second, with 27 of the 62 respondents (44%) saying they had done studied it since high school.

The Articles of Confederation

By Seth Chandler

Have you ever actually read the Articles of Confederation? I know I had not until I was asked to teach Constitutional Law and thought it might be a good idea. After all, part of what the constitutional framers were reacting to were deficiencies in the Articles. And there’s a fair amount of lore about what those deficiencies were. But how did the Articles actually work? Anyway, here’s a quiz on the text of the Articles of Confederation which, like its constitutional law counterpart available on this blog, is intended to inspire a careful reading of the text.  And here are the answers.

A quiz on the text of the United States Constitution

By Seth Chandler

An awful lot of what is conventionally taught as “Constitutional Law” in the United States (rightly) revolves around the vaguest provisions in the Constitution such as due process, equal protection, establishment of religion, unreasonable search, etc. And, yet, a lot of the Constitution is basically an instruction book on establishing a government. Those provisions are a little more concrete and, while seldom litigated, are nonetheless important to understanding the ideas behind the formation and operation of our federalist system. Moreover, a lot of constitutional law and constitutional opinion gets pretty swiftly unmoored from the text of the Constitution itself. There’s probably nothing wrong with this — indeed it’s probably inevitable — but it does occasionally bother me that any “errors” in the instantiation of a particular vague provision such as due process may get propagated as one starts to then instantiate the derivative objects and it can take a long time before the courts realize they long ago started down a misguided path. So, for these reasons, and perhaps because I have an affinity for the arcane, I think it’s useful for students to have a good handle on the text of the Constitution itself.

This constitutional text quiz is intended to inspire the careful reading of the document on which I place some importance. It is also intended to dispel preconceptions that I suspect some students harbor about the document. The answer key is also attached. Constructive criticism appreciated.

Footnote: I am also working on Mathematica software that would important a lightly formatted text file and turn it into an interactive quiz that would keep score and provide hints (such as the relevant portion of the Constitution); but creating an attractive and general program for this is not entirely trivial.