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Saturday, March 13, 2004

More on the University of Southern Mississippi controversy: Ralph Luker is on top of the story. I can't tell for sure who's right and who's wrong here, since the university is apparently restricted by confidentiality policies from telling its side of the story. But from all I've heard, my tentative sense of the matter is that the faculty members whom USM is trying to fire are in the right, and the University's actions are a grave breach of academic freedom.
Another example of Jewish Sovereignty: I previously listed four examples of Jewish sovereignty between the failure of the Bar-Kochba rebellion in 135 and the founding of the modern state of Israel. Here's a fifth, courtesy of reader D. Siegel: 5th and 6th century Himayar (Yemen).

Friday, March 12, 2004

Don't laugh at slippery slope fears: A story from Australia:
Swords will be outlawed from July under new laws to curb the growing use of the weapons in street brawls.

Police Minister Andre Haermeyer said the ban would help police overcome a culture of young people arming themselves with swords. "For most people running around the street carrying swords there is absolutely no reason for them to be carrying those weapons," he said yesterday.

From July, anyone found possessing or selling a sword without a permit will face up to six months' jail and fines of up to $12,000.

Existing sword owners must surrender their weapons to police, sell them to a licensed dealer or apply to the Chief Commissioner for specific approval.

Collectors and people with legitimate cultural, religious or military reasons to own swords will be exempted from the ban, but must store them under lock and key and have a burglar alarm.

The sword ban follows a string of recent attacks and a regulatory impact statement undertaken by the State Government last year.

Last week, a 13-year-old boy was arrested and charged after allegedly charging police with a sword near Castlemaine, in central Victoria.

A 21-year-old man had his hand severed by a samurai sword in a confrontation between 40 men in the Fitzroy Gardens a fortnight ago -- the second brawl involving swords in 24 hours.

Huy Huynh, 19, was chased from the Salt nightclub and hacked to death nearby in July 2002 by a mob using samurai swords and machetes. . . .

The Government is also looking at bans on some other weapons, such as crossbows . . . .
I realize that some people might think this sort of restriction is just fine -- my point here is simply that restrictions often do lead to broader ones (for reasons I canvassed here). And when people object to even a seemingly assault weapons ban, their slippery slope concerns may be quite sensible.
State v. Federal Parks: Just enjoyed a spectacular day driving from Mountain View to Monterey by way of the Big Basin Redwoods State Park. Being off-season and a weekday afternoon, the park was peaceful and largely deserted. Here I am standing in the redwood named the "Mother-of-the-Forest," which stands 329 feet tall..



Hiking in this park reminded me that some of the most enjoyable parks we visited on a cross-country family camping trip some years ago were state parks such as Valley of Fire State Park in Nevada, and Dead Horse Point State Park and Coral Pink San Dunes State Park, both in Utah. This made me speculate whether, given the criticisms of the management of parks by the National Park Service, we would have been better off if our park system had developed under state control. They seem more low key, but this may just be because these parks are less popular. I really do not know much about this, but today's visit made me wonder. And blogging about the great outdoors makes me feel like Glenn Reynolds.
Odd term: In Slate, Domestic Silence: The Supreme Court kills evidence-based prosecution." The story eventually explains what "evidence-based prosecution" means -- apparently "evidence" is being distinguished from live testimony of the complaining witness, even though live testimony most certainly is a sort of evidence. Still, it's an odd term, especially for a headline.
More on the Caesarean section case: Reader Fred Larsen writes:
Just thought that I would toss my two cents worth into the ring about the lady who is being charged for not submitting to a c/section to save the life of one of her twins. I am a board certified Ob/Gyn . . . (though now I only do infertility). I've delivered hundreds of babies. First a few thoughts:

1) I have been faced with this very situation. I had a lady who was at full term who was in labor. Her baby's heart tracing was concerning for fetal distress, with indications that the baby was not receiving enough oxygen. I told the patient that I was concerned about the tracing and that if it didn't improve, I would recommend a c-section. She told me that she would not consent to one, even if it meant watching her baby die on the monitors. I was taken aback, as you might imagine. Thankfully, the baby's tracing improved, but I was still facing the possibility of it occurring again. Well, I tell you. I wasn't going to go down alone on this one. I called the chief of Ob/Gyn and made him come put a note on the chart, I called the hospital lawyer and made them come in and put a note on the chart and I made the patient sign something saying that she understood...

On the one hand, I certainly couldn't force her to go through surgery as I would be open to charges of assault/battery, etc. On the other, I have a responsibility to both patients, the baby and the mother. It's an impossible situation to be in. You really can't win, as the physician facing this. Thankfully, this story ended well, but it might not have.

2) In reading accounts of this case, it seems that she went to at least 2 and possibly three hospitals, all of which recommended admission and delivery. I do understand that we are not perfect at being able to predict fetal / intrauterine distress, but if they're talking about slow heart rates, particularly prolonged ones, it's not subtle or rocket science.

3) The one problem I see with your hypothetical "people would hesitate to find a woman guilty of murder when she aborts a child at gestational age 9 months because carrying the child (or having a caesarean) would cause her to, say, be permanently paralyzed, or would involve even a 25% chance of her dying" is this. Regardless of route of delivery, at 9 months the baby has to be delivered. If an abortion were performed (KCl into the heart, followed by induction of delivery), the fact remains that the ramins of the baby would need to be delivered. This would involve induction of labor and vaginal delivery of a large (full term "fetus").

I cannot think of a single instance in which an abortion at 9 months would result in less risk to the mother than delivery of the child. I guess the only thing that I could even imagine would be one in which it was deemed that a c/section would be too risky and the labor is induced and during the labor process, fetal distress ensues and surgical intervention is not undertaken (allowing the baby to die). Otherwise, the hemodynamic changes that occur after c section or vaginal delivery with delivery of the placenta, all occur after the delivery of a dead baby too.

[Moreover,] it would be rare that someone would be unable to withstand a cesarean delivery yet able to undergo vaginal delivery. In the circumstances in which a c-section might result in death to the mother, it is a near certainty that a vaginal delivery would also result in significant risk of death as well. Granted, risks of death are higher with c section, blood loss is generally higher and so forth, but with modern obstetrical anesthesia, intensive care capabilities and high quality obstetrical care (particularly doing a c section as a scheduled procedure, not at the end of a long and failed labor), the magnitude of the difference in risks would be small.
Naturally, this does not remotely resolve the legal issues that my original post alluded to; but I thought it might provide a helpful perspective.
More T-shirt fun: Reader Pritesh Patel points to this AP story:
"International Terrorist" were the words framing President Bush's picture on a black T-shirt that the Dearborn High School junior [Bretton Barber] wore to class on Feb. 17.

School officials told him to take it off, turn it inside out or go home. He went home. The next day he returned, with a different shirt.

School officials said they were worried about inflaming passions at the school, where a majority of students are Arab-American. . . .

Bretton said he wanted to express his anti-war position by wearing the shirt, which he ordered on the Internet.

"Bush has already killed over 1,000 people in Afghanistan ? that's terrorism in itself," he told The Detroit News for a story today.

He said he wore the shirt for a presentation he made that morning in English class. The assignment was a "compare and contrast" essay, and he chose to compare Bush with Saddam Hussein.

Dearborn Public Schools spokesman Dave Mustonen said students have the right to freedom of expression, but educators are sensitive to tensions caused by the conflict with Iraq.

"It was felt that emotions are running very high," said Mustonen. "The shirt posed a potential disruption to the learning environment at the school. Our No. 1 obligation is to make sure we have a safe learning environment for all of the students." . . .

Imad Hamad of the American-Arab Anti-Discrimination Committee said officials took the right approach. Hamad said he hoped they would take it one step further and use the experience to educate students on how to exercise freedoms in positive ways.

"I see no winner here," Hamad said. "The school did the right thing to diffuse any potential conflict among the student population. I assume they would do the same thing if another message was displayed that was offensive to a different culture." . . .
     As I mentioned in my pro-life T-shirt post below, student speech like this can generally be restricted only if (1) there's serious reason to think that it's likely to cause material disruption, or (2) it's vulgar or profane, and offensive because of that and not because of its political message. (It could also be restricted if it's otherwise unprotected, for instance because it's a knowing lie, a death threat, or the like, but that surely doesn't apply here; though lots of people think the viewpoint the shirt expresses is wrong, it's clearly a statement of opinion, not of fact.) The T-shirt here might be seen by some as rude, but the rudeness flows precisely from its political content, so item 2 doesn't apply, either.

     The question is whether the school really has some good reason to think that this would cause material disruption. I'm pretty hesitant, absent more evidence, to think that it would. The fact that most of the students are Arab-Americans doesn't seem to me to be particularly relevant here. If the school can show that similar T-shirts had started fights, there or in neighboring schools, or that there were incidents that seemed about to blossom into fights, it might have a good case. But I don't see how this is inherently likely to be any more disruptive than the anti-Vietnam-War black armbands that the Court held to be protected in Tinker v. Des Moines Independent School District (1969), the leading case in this field.
Forcing religious opinions: I got a bunch of messages responding to my "forcing religious opinions" post; I'm too swamped now to respond in detail, but let me just mention a general point to my libertarian correspondents -- I can certainly see why people would object to others forcing wrong opinions on us through the legal system. I object to it myself.

     But the proper objection is that the laws being advocated are wrong on the merits. It's right to force on others our opinions that rape, child molestation, murder, and slavery is bad -- where "force their opinions" means, as it often does in public debate, "enact coercive laws" based on those opinions -- because these are correct opinions, and the laws that embody them, and try to force others to comply, are good laws. (We can debate about why they're good laws, but we support them because we think they're good). That many people supported abolition of slavery on religious grounds, thus forcing their opinions that slavery is wrong on others, doesn't make this support wrong.

     Conversely, it's wrong for people to force on others their opinions that everyone should hand over all their property to the poor, or that everyone should destroy their guns, because these are morally unsound opinions, and the laws that try to force others to comply with them are bad laws. It doesn't matter if the supporters of the laws are religious pacifists or antipropertarians, secular pacifists or antipropertarians, Marxists, or whoever else.

     Law is a means of forcing people to comply with certain views. If we have law, we'll have that coercion. It's quite proper to insist that laws only coerce people to do (or not do) things that it is right to coerce people to do (or not do) -- for instance, as I mentioned, it's right to coerce people not to kill, rape, steal, and so on. But I see no reason to fault people based not on what laws they want to implement, but based on whether their grounds for supporting such laws are religious opinions or secular opinions.
Attempt to ban pro-life T-shirt in high school? CNSNews reports:
A Virginia high school says a student's pro-life T-shirt violates the school's ban on using profane or obscene language.

The shirt says, "Abortion is Homicide. You will not silence my message. You will not mock my God. You will stop killing my generation. Rock for Life."

An assistant vice principal at Denbigh High School in Newport News told the student to stop wearing the shirt . . . .
     It seems to me quite clear that wearing the pro-life T-shirt is constitutionally protected, just as the wearing of anti-war symbols during the Vietnam War was found to be protected in Tinker v. Des Moines Indep. School Dist. (1969), at least unless there's concrete evidence of some significant disruption (or likely disruption) that the T-shirt has caused. Under Bethel School Dist. No. 403 v. Fraser (1986), the school may also restrict profanity and vulgarity, when the restriction is "unrelated to any political viewpoint," but that pretty clear doesn't apply here. If the full facts are as the story describes (and of course often there are some items that don't come out at first in such stories), and if indeed there's no evidence of sufficient disruption, then this seems a pretty clear First Amendment violation.

     Thanks to reader Matthew Bower for the pointer.
Way cool military gadgets.
Say, wasn't avoiding that part of the point? Evangelical Outpost praises the indeed quite praiseworthy Catholic lawprof Mary Ann Glendon, who has been chosen to lead the Pontifical Academy of Social Sciences [memo to self: write witticism re: pontifical/pontificates/professors/etc. -- v. funny!] and writes:
This is one of those times that I wish we evangelicals had a Vatican of our own.
That whirring you hear is Martin Luther spinning in his grave . . . . (Thanks to Professor Bainbridge for the pointer.)
An early happy bloggiversary: to Russell Arben Fox, who commemorates the day with this very funny post.
L.A. Times piece on opponents of gay marriage: It's here, and it actually strikes me as quite thoughtful and balanced (and not just because it quotes me, correctly identifying me as a supporter of gay marriage). I suppose its bottom line is relatively friendly to the anti-gay-marriage forces, but it provides good arguments from both sides, and in the right tone.

UPDATE: Corrected the link to the article; should work now.

Wooster College Update: The Cleveland Jewish News reports on how its story about an anti-Semitic speech by Samir Makhlouf at Wooster College, sponsored by Presbyterian Peacemakers, became national news thanks to the Internet. The role of the Volokh Conspiracy is noted (though the reporter never contacted me), but not noted is how many of our readers wrote to officials at the College, and later to the school newspaper when it defended Makhlouf, something I've been told by Woosterites. Thanks! (And note to the Jewish News: my last name is Bernstein, not Mason!)
Gas prices from 1950 to now: Gregg Easterbrook points to this table, and writes:
Last week the national average for regular unleaded was $1.71, while "the record," USA Today declared, was $1.74 in August 2003. But all that matters to consumers is inflation-adjusted cost, and in this real-dollar calculation, gasoline prices remain about where they have been for most of the postwar era. This chart shows that the actual U.S. record price for gasoline occurred in 1981, when regular unleaded cost $2.80 in today's money. (The chart is in 2002 dollars; add 2 percent for current dollars.) The current gas-price level that Spencer Abraham, Dan Rather, and others are hyping as close to "the record" is actually 39 percent lower than the true price peak.

Another comparison: The average price of gasoline during the 1950s was about $1.80 in today's money--meaning that during the period enshrined in our collective political nostalgia as Energy Heaven, gasoline cost slightly more in real dollars than the amount now being theatrically bemoaned as a "record" price. But wait; in the 1950s, per-capita real income was less than half what it is today. That means that for the typical American in the 1950s, gasoline cost twice as much, in terms of buying power, as today's gasoline. Adjusted for inflation and for buying power, the purported "record"-priced gasoline at your pumps now is substantially cheaper than the gasoline your parents bought. . . .
Thanks to Greg Skidmore at Per Curiam for the pointer.
Voluntary, consumer-driven outsourcing: If you call the lender E-Loan Inc., you can have your loan application processed by either U.S. or Indian workers. If you choose the U.S. workers, it takes about two days longer to hear a response. Roughly 86% of applicants opt for the Indians.

Thursday, March 11, 2004

Department of Unfounded Ethical Charges (and more on originalism): I did not even hear of this story about the Lincoln Bedroom until I read Mark Kleiman's blog, but I think Mark deserves praise for defending George Bush, a politician he loathes, against a charge of unethical conduct that Mark thinks is unfounded. Kudos to Mark for this classy post. He could have just remained silent.

In this spirit, I report that I was interviewed Thursday morning on KNX-AM radio in LA about Justice Ginsburg's alleged "Ties to Activist Group" reported in Thursday's LA Times (free registration required for link)--a story apparently first stimulated by the blog Patterico's Pontifications. In case you have not read it, here is the charge which was initially brought to my attention by KNX:

Supreme Court Justice Ruth Bader Ginsburg has lent her name and presence to a lecture series cosponsored by the liberal NOW Legal Defense and Education Fund, an advocacy group that often argues before the high court in support of women's rights that the justice embraces.

In January, Ginsburg gave opening remarks for the fourth installment in the Justice Ruth Bader Ginsburg Distinguished Lecture Series on Women and the Law. Two weeks earlier, she had voted in a medical screening case and taken the side promoted by the legal defense fund in its friend-of-the-court brief.

The liberal Ginsburg's involvement with the legal activist group, and recent outside activities by a conservative colleague, Justice Antonin Scalia, have touched off a debate over what kinds of extrajudicial appearances and contacts are appropriate for Supreme Court justices.
My take on this seemed to take the anchor, Chris Stanley, by surprise: I said I thought the charge was preposterous.

Supreme Court justices are not going to change the way they rule because they accept an invitation to speak in front of a group, even an "activist" group with which they tend to agree (and even if the lecture series is named after them). Supreme Court justices are not like the Oracles in Minority Report who must be segregated from the population in general, or from people with opinions in particular, and guarded by eunuchs. They get invited to speak by groups for a variety of motives. Sometimes the groups want to hear from justices who they admire and with whom they agree. Other groups want to hear from a justice who challenges their views. Still others just want to hear a Supreme Court justice, though in my experience they tend to be rather boring. By the same token justices get invited to dinner parties. Justices play poker or golf with their friends. Justices go to the movies. They read the paper or magazines. Justice are people.

I think that the recent flaps over justices Ginsburg's and Scalia's outside contacts is also related to what Larry Solum has dubbed the "downward spiral" over judicial appointments. Where the Constitution is not viewed as having a meaning independent of the preferences of those doing the interpreting--a view that has been very popular among intellectuals for a very long time--we must insist that only judges with whom we agree get on the bench. And while on the bench their views can neither be corrupted nor reinforced by the opinions of outsiders, and we should strive to get those who somehow slipped through the confirmation process to recuse themselves from cases we care about. Of course, we really only care about all this when it concerns justices or judges with whom we disagree.

This view of judging is a self-fulfilling prophesy. Insisting that all constitutional interpretation is or must be based solely a matter of choice concerning "right results" is conducive to judges acting as if this is true, which then makes it true. But it need not be true. Or more accurately, though some judicial discretion in applying the meaning of the Constitution to particular cases is inevitable, it need not be true that this discretion cannot be cabined by an independent meaning of a written constitution. The only genuine solution to the downward spiral is to restore the original public meaning of the Constitution as a source of meaning that is independent of judicial (and legislative and presidential) preferences--even if this meaning does not dictate unique results in every case. In other words, the meaning of an enacted constitution must remain the same until it is properly changed.

To appreciate this, consider the following thought experiment. Imagine judicial nominee A who thinks (1) the 16th Amendment authorizing an income tax is highly unjust but (2) its original meaning clearly makes the income tax constitutional. Even if you disagree strongly with this nominee about (2) but you also truly believe that she has the "judicial virtue"of faithfully putting the original meaning of the Constitution ahead of her view of justice, she can safely be confirmed notwithstanding her strongly-held opinion on the justice of the income tax. Now consider judicial nominee B who thinks (1) the 16th Amendment authorizing an income tax is highly unjust but (2) its original meaning can be ignored or explained away (like the right to keep and bear arms has been) and the income tax can, in the interests of justice, be held to be an unconstitutional "taking." All who oppose this result for whatever reason must now vehemently oppose this nominee.

I do not claim that this example is realistic. I posit it to starkly illustrate the connection between our theories of constitutional interpretation and the downward spiral affecting judicial nominations (as well as the newfound fetish that justices not associate with highly opinionated "activist" groups). What distinguishes between nominees A and B is not their policy preferences but the method of constitutional interpretation to which they are sincerely committed.

Let me offer this maxim: Any method of constitutional interpretation that is malleable enough to lead to ALL the important results you care about--what Sandy Levinson calls "happy endings"--can be used by your political opponents to reach all the important results that THEY care about. Which then reduces all of constitutional law to who get elevated to the bench. This the situation in which we now find ourselves. The only way out of this morass is to reestablish methods of interpreting the Constitution that acknowledge that the text had a public meaning when it was adopted that may not be changed by the very government officials it was supposed to subject to its higher law.

Note bene: I know the subject of constitutional interpretation in general--and originalism in particular--is very complicated. I wrote Restoring the Lost Constitution to address these complex issues at greater length than they can be analyzed in a blog post. Any reader who is genuinesly concerned about the nuances should check out the longer analysis of originalist interpretation and its limits to be found there.

UPDATE: Patterico, who broke the Ginsburg story, blogged to express general agreement with my reaction and adds a thought with which I agree:

Although I wouldn't use the word "preposterous," I tend to agree with Barnett. Justices shouldn't have to lead cloistered lives, as I have stated in virtually every post I have written on the issue. I have seen Justice Scalia (and other judges) speak, and have benefitted from the experience. My point has been simply that a newspaper shouldn't pick on only the most conservative Justice, while giving a pass to the liberal ones.


UPDATE II: Some agreement with the above maxim on the American Constitution Society blog.
Espionage? The MSNBC headline in the story is "Ex-Senate aide charged with giving Iraq secrets." But the body of the story says that
[Susan Lindauer] was charged with being a paid Iraqi intelligence agent and trying to contact her distant cousin -- the White House chief of staff -- to alter U.S. policy. . . .

She was charged with conspiring to act as an unregistered agent of the Iraqi Intelligence Service and with engaging in prohibited financial transactions with the Iraqi government. The indictment makes no mention of her congressional staff work. She was not directly charged with espionage. . . .

The indictment said she accepted $10,000 for working for the intelligence service from 1999 to 2002, including payments for lodging at the Al-Rashid Hotel in Baghdad and expenses during meetings in New York City with Iraqi agents. According to the indictment, Lindauer delivered a letter "to the home of a United States government official" on Jan. 8, 2003, in which she described her access to members of dictator Saddam Hussein's regime "in an unsuccessful attempt to influence United States policy." . . .

According to an indictment filed in U.S. District Court in Manhattan, Lindauer made multiple visits from October 1999 through March 2002 to Iraq's U.N. mission in Manhattan. The government said she accepted payments from the Iraqis for her services and expenses. . . .
     She may well have committed various crimes, and being a covert agent of the Iraqi government is hardly good behavior in my book. But is there really any charge that she gave the Iraqis secrets, or even that she had any secrets to give them?

     The Seattle Post-Intelligencer headline likewise calls her an "[a]ccused spy," but likewise lacks any mention of any charges of actual spying. Am I missing some important details here?
Forcing their religious opinions on us: I must have blogged about this a while ago, but this trope keeps bugging me. "Those fundamentalist Christians are trying to force their religious opinions on us," the argument goes. But that's what most lawmaking is -- trying to turn one's opinions on moral or pragmatic subjects into law.

     Gay rights activists are trying to force their opinions on us by making employers not discriminate based on sexual orientation, or by making taxpayers pay for various marriage-related benefits for same-sex couples as well as heterosexual couples. Civil rights activists forced their opinions about race and sex discrimination on private employers, landlords, and business owners.

     Nor are libertarians immune, unless they're anarchists (though even the anarchists are willing to force their opinions through the use of deadly force, even if not through legislation). After all, laws against breach of contract, theft, rape, murder, and the like also involve the defenders of those laws forcing their opinions on the rest of us.

     Ah, the argument goes, but those laws are backed by secular arguments, not religious ones. Well, as it happens, many laws -- civil rights laws, for instance -- were motivated by religious opinions (it's the Reverend Martin Luther King, Jr., you might recall). But more importantly, all of our opinions are ultimately based on unproven and unprovable moral premises. For some of us, the moral premises are secular; for others, they're religious; I don't see why the former are somehow more acceptable than the latter. And the slogan "separation of church and state" hardly resolves anything here: Churches may have no legal role in our government, but religious believers are just as entitled to vote their views into law as are atheists or agnostics.

     Of course, it's perfectly sound to disagree with people's views on the merits: If I don't agree with the substance of someone's proposal, whether it's religious or secular, I'll certainly criticize the substance. And naturally people will often find others' religious arguments unpersuasive -- "ban this because God said so" isn't going to persuade someone who doesn't believe in God, or who has a different view of God's will. (Likewise, many devout Christians may find unpersuasive arguments that completely fail to engage devout Christians' religious beliefs.) But there's nothing at all illegitimate about people making up their own minds about which laws to enact based on their own unprovable religious moral beliefs, or on their own unprovable secular moral beliefs.
Good progress on my workers' comp research! Thanks to reader Robin Parry, formerly of Scales of Justice, I got a few years' information from the Department of Labor library. Now all I need is 1963, 1965, and 1967. I'll repeat my post from below, mutanda mutans:

I need some numbers on workers' compensation in different states. Most of my numbers come from a publication called Analysis of Workers' Compensation Laws put out annually since 1976 by the U.S. Chamber of Commerce. Its predecessor publication, Analysis of Workmen's Compensation Laws, was put out annually from the 1950s to 1975.

My period of interest is 1962 onwards, but Harvard is missing most issues from the 1960s and 1970s, and supplementing with MIT's, UCLA's, and the Department of Labor's collections, I'm still missing the following years: 1963, 1965, 1967.

If any of you feel like checking (soon, like, within a few days?) whether your local (or university) library has this publication for these years -- and, better, if you also feel like faxing me a copy of a table I'm looking for ("Income Benefits for Total Disabilities"), which should be about three pages long in each volume -- I will be eternally grateful to you. (I think the Library of Congress has a complete set, but that would be going way beyond the call of duty, unless you go there all the time.)

Please write me an e-mail, volokh at fas.harvard.edu, if you can do this.

(Alternatively, you could just mail me the tables slowly, but quickly e-mail me the "maximum weekly payment" amount for the states I need, which are CA, CT, DC, FL, IL, IN, NJ, NY, OH, PA, and TX.)

UPDATE: Various readers have written in to tell me that the set of studies was biyearly until 1968, so the 1963, 1965, and 1967 issues (as well as odd-year issues from before 1963) don't exist. This would explain a lot, though the Harvard library catalog doesn't seem to know it. If this is the case, that means there's nothing left for my blog-reading friends to find. Thanks!
California Supreme Court orders S.F. mayor not to conduct same-sex marriages: Here's the order (thanks to How Appealing for the pointer):
Respondent is ordered to show cause before this court, when the matter is called at the late May 2004 or June 2004 calendar, why a writ of mandate should not issue, directing respondent to apply and abide by the provisions of Family Code sections 300, 301, 308.5, and 355 in the absence of a judicial determination that these statutory provisions are unconstitutional. Pending this court's determination of this matter or further order of this court, respondent is directed to enforce and apply the provisions of Family Code sections 300, 301, 308.5, and 355 without regard to respondent's personal view of the constitutionality of such provisions, and to refrain from issuing marriage licenses or certificates not authorized by such provisions. In addition, pending this court's determination of this matter or further order of this court, all proceedings in Proposition 22 Legal Defense and Education Fund v. City and County of San Francisco et al. (San Francisco Super. Ct. No. CPF-04-503943) and Thomasson et al. v. Newsom et al., (San Francisco Super. Ct. No. CGC-04-428794) are stayed. This stay does not preclude the filing of a separate action in superior court raising a substantive constitutional challenge to the current marriage statutes.

The return in this matter, limited to the legal question whether respondent is exceeding or acting outside the scope of her authority in refusing to enforce the provisions of Family Code sections 300, 301, 308.5, and 355 in the absence of a judicial determination that such provisions are unconstitutional, is to be filed by respondent in the San Francisco Office of the Supreme Court on or before Thursday, March 18, 2004. In addressing the foregoing issue, the return should discuss not only the applicability and effect of article III, section 3.5 of the California Constitution, but any other constitutional or statutory provision or doctrine that may be relevant to the resolution of the foregoing issue.

A reply may be filed by petitioners in the San Francisco Office of the Supreme Court on or before Thursday, March 25, 2004.

Any application to file an amicus curiae brief, accompanied by the proposed brief, may be filed in the San Francisco Office of the Supreme Court on or before Thursday, March 25, 2004.

Any reply to an amicus curiae brief may be filed in the San Francisco Office of the Supreme Court on or before Monday, March 29, 2004.

Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Looks like they are indeed interested in the question whether San Francisco government officials are an "administrative agency," covered by article 3, section 3.5 of the California Constitution:
An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power:

(a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional;

(b) To declare a statute unconstitutional;

(c) To declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations.
I tend to think that they aren't an administrative agency, but we'll see what the Justices have to say.

     I also assume that when the California Supreme Court says that the documents should discuss "any other constitutional or statutory provision or doctrine that may be relevant to the resolution of the foregoing issue," this means that the Justices are prepared to hear the Mayor's substantive constitutional argument about why the California Constitution mandates allowing same-sex marriages, since a resolution of this argument would probably make moot the article III, section 3.5 objection. This doesn't mean that the court will necessarily resolve the substantive issue, but as I read the order, it doesn't preclude such a resolution, either. (I assume that if the California Supreme Court concludes that the mayor was substantively right but procedurally wrong, it wouldn't retroactively invalidate the marriages.)
"If the existing assault weapons ban expires, I personally do not believe it will make one whit of difference one way or another" in "reducing death and injury." Who said that? Tom Diaz, of the pro-gun-control Violence Policy Center.
Murder? An AP story reports:
A pregnant woman who allegedly ignored medical warnings to have a Caesarean section to save her twins was charged Thursday with murder after one of the babies was stillborn.

Prosecutors said Melissa Ann Rowland, 28, didn't want the scars that accompany the surgery.

An autopsy found that the baby died two days before its Jan. 13 delivery and that it would have survived if Rowland had had a C-section when her doctors urged her to, between Christmas and Jan. 9. The other baby is alive, but authorities had no further information.

The doctors had warned that without a C-section, the twins would probably die, authorities said. A nurse told police that Rowland said [the doctor wanted to cut her "from breast bone to pubic bone," a procedure that would "ruin her life,"] and she would rather "lose one of the babies than be cut like that."

"We are unable to find any reason other than the cosmetic motivations by the mother" for her decision, said Kent Morgan, spokesman for the district attorney. . . .

The charges carry five years to life in prison. She was jailed on $250,000 bail. . . .
     A really tough issue: On the one hand, I'm skittish about any legal requirement that someone get surgery, even to save her child's life. On the other hand, parents do rightly have a legal obligation to take care of their children, and it may well be that this obligation does extend even to going under the knife. Thought experiment: Should the law be able to force a parent -- on pain of a murder conviction -- to donate bone marrow to save a child's life? Should it be able to do so, but only on pain of conviction of a lesser offense, such as involuntary manslaughter or child neglect?

     Incidentally, while this naturally brings up an analogy to the constitutional right to an abortion, the analogy is complex. U.S. constitutional law actually recognizes two different rights to an abortion: A categorical right pre-viability, and a right post-viability when the abortion is needed to preserve the mother's life or health. The first right is surely not implicated here; the baby (and I feel quite comfortable calling it a baby) died at gestational age 9 months. The second right, though, is potentially implicated; the argument would be that it is potentially harmful to a woman's health to have a caesarean section.

     I suspect that most (though not all) people would hesitate to find a woman guilty of murder when she aborts a child at gestational age 9 months because carrying the child (or having a caesarean) would cause her to, say, be permanently paralyzed, or would involve even a 25% chance of her dying. The question is whether the same should apply when we're dealing with a caesarean, a serious surgical procedure and one that sometimes does lead to death and always leads to a nontrivial and somewhat painful recovery, but nonetheless one that in the overwhelming majority of all cases doesn't cause death or serious permanent injury.

     Finally, does it matter that medicine is an inexact science, and that a woman may well sincerely distrust her doctors' assurances that (1) a caesarean is needed to save the child's life, and (2) a caesarean would be safe for her? Is that another reason to leave the issue entirely up to the mother? Or would we say what the law often says as to parents' other duties: Even if you sincerely believe that your child will get better if you just pray over him, instead of taking him to surgery, you may still be held liable at least for involuntary manslaughter (negligent homicide) even if not murder (reckless, knowing, or intentional homicide)? (I vaguely recall that some jurisdictions may exempt from prosecution parents who take this view, but even if that's so, I think that that's the exception, not the rule.)
The Passion of the Christ: Reader Tom Hynes writes:
I turned to my wife in the middle of The Passion of the Christ today and said "That Roman is using stirrups!"

All Conspiracy readers know it was not introduced for centuries.

My wife still told me to shut up.
Washington Post site carries ad for term paper mill: John A. Kalb has the scoop. Not a huge scandal, of course; probably no-one authoritative at the Post ever even saw this. But I hope they notice now, and stop carrying such ads. (Yes, I know that the site's FAQ page says that "All papers provided by Example Essays.com are for research and reference purposes only." Forgive me if I doubt that this is the normal way people use the site.)
More on commemorative coins: A reader writes:
Though we would both agree that Chief Justice Marshall is "cool" in many regards, the truth behind commemorative coin programs is "way uncool."

I worked for the U.S. Mint for seven years before enrolling in Marshall-Wythe Law School (Wm & Mary) & have a good read on how these programs work. In a nutshell, a sponsoring organization lobbies the congressional banking committees (to whose music the U.S. Mint dances) to pass commemorative coin legislation, usually for one-ounce silver dollars.

Once legislation is passed, the Mint designs and stamps the coins.

(Getting from design to stamped coin is a long and expensive process...many hands in the design process, many engraving steps, test dies, test runs, final design, etc.). The Mint and sponsoring organization then market the coins to coin collectors or others who might be interested in a particular coin. The purchase price of about $33 per coin breaks down as follows: $10 to the sponsoring organization, $7 for the silver, $16 to the U.S. Mint to recoup costs.

In the 1990s, the Mint would get a few commemorative silver dollar programs thrust upon it each year. Because the sales usually were not strong enough to recoup the agency's fixed costs, the vast majority of these programs were money losers for the Mint (i.e., taxpayers). The Law Enforcement Memorial program is instructive. About 140,000 coins were sold, grossing the Memorial's fund $1.4m. The Mint/taxpayers lost at least $500,000 (but probably closer to $1m) on the program. See here for the general stats[.]

No one can say how well the John Marshall coin will sell, but it is very likely to be a money loser for the government, and thus a cloaked federal subsidy for the Supreme Court Historical Society. See [here.]

I realize that this is small potatoes in the grand scheme of government encroachments into private enterprise, but it is a no-brainer for someone who even leans libertarian. That is, if there were a true demand for a John Marshall coin, the SCHS could contract a program with the Franklin Mint, Liberty Mint, or another small private mint. This is, in fact, the situation that obtained before the U.S. Mint got back into the commemorative coin business in 1982. It is because the Franklin Mint and others could not compete with the U.S. Mint in for the wallets of coin collectors, the Franklin Mint et al. had to switch to making Civil War Chess Sets and the like.

In short, the government should mint coinage for circulation only (and perhaps proof and uncirculated sets for collectors), and leave commemorative minting to private enterprise.
I have no personal knowledge on the subject, but it seemed worth passing along.
Recess appointments: I have no informed opinion on the subject, but I think people who are interested in it might be interested in this excerpt from a brief filed by the Justice Department in 1993.

UPDATE: For a contrary view, from a 1921 Attorney General opinion, see here.

Being Your Own Real Estate Agent: A law professor I know told me that before he bought his house, he took the Georgia Real Estate licensing exam, passed it, and collected the 3% buyer's broker's commission when he bought the house. I'm thinking about buying a house, and was wondering whether I can do the same thing in Virginia. It seems relatively easy to pass the licensing exam, but it's unclear to me whether simply being a licensed real estate seller, as opposed to being an eligible broker, or employee of a broker, would make me eligible for the commission. Anyone know the answer?

And before I get outraged emails from real estate agents arguing that I can't do without their essential services, I have narrowed the area in which I would like to buy a house down to a very small area near George Mason Law School, so I would not need any help picking a neighborhood. Given that houses in this vicinity sell from $400k, I would need a lot of convincing that an agent's services were worth upwards of $12K.

UPDATE: Reader Joel Buckingham notes that in some states, such as California, attorneys who pass the real estate sales exam are automatically eligible to become licensed brokers. In Virginia, however, there appears to be no such allowance for attorneys, who need, like other potental brokers, to prove they have several years of sales experience before they can become brokers. Of course, we all know that licensing laws are meant for consumer protection.
Russia: I haven't followed Russian life much, since the revolution. Still, some things I've been hearing recently reminded me of this poem by my favorite Russian singer-songwriter, the late Bulat Okudzhava, written in 1989 -- much has surely changed, and for the better, since then, but from what I've heard much hasn't. I give a quick and dirty translation below, which unfortunately doesn't preserve the rhyme, the meter, or much of the sensibility, but what can I do? (Note also that the translation borrows in one place from the version of the song that I heard, which differs in some respects from the written version.)

     A bit of background that would be obvious to Russian listeners: Since Leo is an emigre returning from Australia, he's certainly Jewish (only Jews and a few other ethnic groups were allowed to leave during the Soviet era, and the emigres of Okudzhava's circle were overwhelmingly Jews). Okudzhava himself was a Georgian by ethnicity, but many of his close friends were Jews; judging by the dedication in the print version, the song was written with one particular friend in mind, though most of Okudzhava's listeners wouldn't know that.
From Australia Leo to Moscow returned
At his sister's finally arrived
From the taxi's window at Moscow he stared
Felt a chill running down his spine

These days, Moscow doesn't quite look cruel ?
Doesn't shoot, doesn't tie you in knots.
But suddenly asks ?Are you scared, little kike??
And gives you a friendly wink.

In Australia, likely, the weather is hot,
Easy life that the pen can't describe;
But in Moscow it's worse than it was yesterday
Though better than in '37.

Down the boulevard, Leo, unhurriedly stroll
Look closely at the familiar faces
Maybe Moscow doesn't have a vicious soul
But no-one's born fortunate here.
Another "Early" Defense of Lochner: Philosopher Eric Mack defended Coppage v. Kansas, one of the leading Lochnerian Supreme Court decisions in "In Defense of 'Unbridled' Freedom of Contract" The American Journal of Economics and Sociology (January l980), pp. l-l5. It's interesting that there were virtually no defenses of Lochner for over forty years, but that right around 1980 the case began to win sympathetic attention.
Supreme Court Justice on commemorative coin: Aaron Kendal points out that "In a nice confluence of legal and numismatic news, next year, a silver dollar honoring the 250th anniversary of the birth of Chief Justice John Marshall will be struck by the US Mint." Cool.
Is saving soldiers' lives and limbs not medical science? The AP reports:
Seven cadavers donated to Tulane University's medical school were sold to the Army and blown up in land mine experiments, officials said Wednesday. . . .

Tulane receives up to 150 cadavers a year from donors but needs only between 40 and 45 for classes, said Mary Bitner Anderson, co-director of the Tulane School of Medicine's Willed Body Program.

The university paid National Anatomical Service, a New York-based company that distributes bodies nationwide, less than $1,000 a body to deliver surplus cadavers, thinking they were going to medical schools in need of corpses.

The anatomical services company sold seven cadavers to the Army for between $25,000 and $30,000, said Chuck Dasey, a spokesman for the Army's Medical Research and Materiel Command in Fort Detrick, Maryland. The bodies were blown up in tests on protective footwear against land mines at Fort Sam Houston in San Antonio. . . .

"There is a legitimate need for medical research and cadavers are one of the models that help medical researchers find out valuable information," Dasey said. "Our position is that it is a regulated process. Obviously it makes some people uncomfortable." . . .

Michael Meyer, a philosophy professor at Santa Clara University in California who has written about the ethics of donated bodies, said the military's use is questionable because it knows donors did not expect to end up in land mine tests.

"Imagine if your mother had said all her life that she wanted her body to be used for science, and then her body was used to test land mines. I think that is disturbing, and I think there are some moral problems with deception here," Meyer[] said. . . .
The cadaver market sure seems funky, and it may well be that people are lying to the universities. I also understand Prof. Meyer's point about the need to be honest with the donors.

     But this just doesn't seem like much of an ethical issue to me. I take it that the donors are never told the details of what the bodies will be used for; among other things, the ultimate use may not be foreseeable at the time of the donation. They are told generally that they'll be used for scientific or medical purposes. Figuring out how to save soldiers' lives and limbs is a medical purpose -- this isn't testing land mines as such, it's testing protective devices against land mines.

     I realize that some potential donors might view this use either as (1) unworthy on moral grounds (not necessarily immoral, but not something they'd want to participate in -- not a view that I'd take, but I suppose one that some people might take), or (2) unusually and unexpectedly grisly. But donors could say that about virtually any use, except perhaps the most obvious and well-known one (dissection in medical schools).

     It seems to me that when one donates a body for unspecified medical and scientific purposes -- just as when one gives money to the university for unspecified educational purposes -- one can't expect anything other than that the body will indeed be used to somehow help medical education, medical knowledge, or medical practice. Whether it ends up being used for stem-cell research, HIV research, or military trauma prevention research, no-one has been wronged. And if you really want to make sure that your body is used for some specific purpose, make sure that your gift makes this explicit (something I suspect very few gifts do), rather than expecting people to distinguish "disturbing" medical uses from nondisturbing ones.

     Thanks to reader Chris B for the pointer.

UPDATE: A reader writes (emphasis mine):
Military medicine involves some experiments that are just, well, icky. And journalists love to shock the public by writing about it. Some years ago they had a delightful time outing some training exercises for medical students at the Uniformed Services University of the Health Sciences, which trains serving military officers in medicine. Various animals such as dogs, pigs and sheep were anaesthetized and wounded with military weapons like rifles and machine guns. Icky! People were shocked. Exactly how military doctors are to learn how to treat the trauma inflicted by military weapons if they don't do icky things like this is unclear to me. In addition, as my wife (a former anatomy teacher at two medical schools) pointed out when we heard the story this morning: exactly how is it worse to have your cadaver blown up by a mine than slowly sliced to bits over a semester by medical students?
Worst Use of an Osama Analogy: Seen on an academic discussion list: One professor notes uncertainty over precisely what is or is not permissible regarding affirmative action after the Michigan cases, and suggests that such uncertainty is unhealthy for a legal system, and provides support for Justice Scalia's oft-quoted dictum [see correction below], "Liberty finds no refuge in the jurisprudence of doubt." Another professor responds, "Is not Scalia's famous 'jurisprudence of doubt' statement deeply at odds with Learned Hand's famous statement to the effect (I paraphrase) that 'the spirit of liberty is the spirit that is never too sure that it is right'? Do not fundamentalists like Osama suggest that we should endorse Hand's not Scalia's position?" So, stating that the law should be clear and certain=fanatical and murderous fundamentalism. No wonder the American legal system is as it is.

UPDATE: Something seemed a bit off about the Scalia quote attributed to Scalia by the two professors above, but I was too lazy to look it up. Sasha points out that the quote is actually from Kennedy's opinion in Casey, mocked by Scalia in Lawrence. The basic point, however, still stands: Scalia is known for favoring bright-line tests in the interests of certainty and coherence, a preference he recently reiterated in Crawford, and the professor in question suggested that such a preference is analogous to Osama-like fundamentalism.
Libertarian quiz: I like the libertarian quiz David linked below. It's much better than most general-purpose political quizzes, because it does a better job of expressing the questions in a form that libertarians would find valid (i.e., policy-oriented, not result-oriented), and better tracks actual divisions among libertarians. I'm also medium-core, with a score of 70. Hanah got 74. Perhaps I should be worried?
Can your library beat Harvard's? I need some numbers on workers' compensation in different states. Most of my numbers come from a publication called Analysis of Workers' Compensation Laws put out annually since 1976 by the U.S. Chamber of Commerce. Its predecessor publication, Analysis of Workmen's Compensation Laws, was put out annually from the 1950s to 1975.

My period of interest is 1962 onwards, but Harvard is missing most issues from the 1960s and 1970s, and supplementing with MIT's collection, I'm still missing the following years: 1963, 1965, 1967, 1968, 1970, 1973.

If any of you feel like checking (soon, like, within a few days?) whether your local (or university) library has this publication for these years -- and, better, if you also feel like faxing me a copy of a table I'm looking for ("Income Benefits for Total Disabilities"), which should be about three pages long in each volume -- I will be eternally grateful to you. (I think the Library of Congress has a complete set, but that would be going way beyond the call of duty, unless you go there all the time.)

Please write me an e-mail, volokh at fas.harvard.edu, if you can do this.

(Alternatively, you could just mail me the tables slowly, but quickly e-mail me the "maximum weekly payment" amount for the states I need, which are CA, CT, DC, FL, IL, IN, NJ, NY, OH, PA, and TX.)
Blogger gets results: Patterico writes:
On the one hand, I have to hand it to the Los Angeles Times. They have run a front-page story about Justice Ginsburg's speech to the NOW Legal Defense Fund.

On the other hand, why did I have to be the one to tell them about it? . . .
I suspect that Patterico's answer to that is that the Times is more interested in finding fault with Justice Scalia on very similar grounds -- they had run an article about that a few days before -- than in investigating whether Justice Ginsburg might have done the same. Maybe that's so; but a reader comment (apparently from a Pennsylvania legislator who is himself a blogger) makes another good point:
You had to tell them about because you knew more about the subject than they did, and you cared enough about it enough to want the public to know. . . .
I think that's quite right -- often a lot can be done just by alerting the media to facts that they're unaware of, whether you e-mail the newspaper's "Reader's Representative" (as Patterico did), or the reporter directly. And while any reader can do that, I think the rise of organized blogging helps that: Bloggers end up being more willing to devote more time to such matters (partly because they feel that even if their e-mail gets no reaction from the newspaper, they can at least alert others to the point, and can complain on-blog about how the newspaper isn't responding); and blogging helps them build on their own information base by using input from other bloggers and from readers.
The Slow Death of Israeli Kibbutzim: Israeli kibbutzim, once the pride and joy of socialists around the world, are dying a slow death, at least as far as socialism is concerned. As an economic experiment, kibbutzim were never very successful, relying for years on heavy subsidies from Labor-dominated Israeli governments to thrive. When Labor lost power in the late seventies, the majority of the subsidies went away, leading to bankruptcies, privatizations, and a general decline in kibbutz fortunes, exacerbated by an inability of the founders to pass on their socialistic fervor to the next generation.

I actually lived on a kibbutz, Revadim, for three weeks in 1985. The kibbutz, affiliated with the leftist Hashomer Hatzair, still had a children's house--children spent only two hours per day with their parents (itself a compromise on original socialist principle), spending the rest of their days and nights in communal living. I can't say that the principles or lifestyle were to my taste, but voluntary socialism can easily coexist with a libertarian society. So, shed a small tear for the decline of kibbutz socialism, another failed experiment in human coexistence.
A short introduction to economics blogging: Here is a short essay I wrote on economics blogging for The Freeman. It offers a general introduction to what blogging is all about. The print version (but not the on-line version) offers a box which surveys some of my favorite economics blogs, including Lynne Kiesling, Arnold Kling, and others, also see the blog roll at my own www.marginalrevolution.com.
Query about Iraq-Kuwait reparations: Is it possible for Kuwait to assign to a third party an award made to Kuwait by the United Nations Compensation Commission? I am talking about Iraqi reparations here. We know that Iraqi debtors are under pressure to forgive, how does this apply legally to those who hold reparations claims, namely Kuwait? As I understand international law (poorly, that is), an award made by a judicial tribunal may be assigned to another party or institution. I am interested in the general question of whether such awards can go to non-profit and development enterprises more generally, or whether they must remain in state hands, in this case the government of Kuwait. Wouldn't it be nice if the award could be put to valuable use? I wonder if in part the real question is whether UNCC could be considered a judicial tribunal, in which case assignment might be possible. Please write me if you know anything about this or have related leads.

Wednesday, March 10, 2004

Libertarian Purity Test: Just took Bryan Caplan's Libertarian Purity Test for the first time in a long time. I scored a 79, which makes me a medium-core libertarian. I seem to recall getting a significantly higher score many years ago, but my views have definitely mellowed over time. For other bloggers' results, click here. Some of the questions were a bit inexact for the yes/no format, so there is some margin of error involved.
The True AntiChrist: A disgusting smear job by Israeli leftist Yossi Sarid, who manages not simply to repeat the well-worn lie that all evangelical Christian supporters of Israel are motivated by implicitly anti-Jewish apocalyptic concerns, but also to virtually accuse any American Christian who goes to "The Passion" of being an anti-Semite. All, of course, in the name of the greater good of attacking the true AntiChrist, Ariel Sharon.
RSS: Thanks to Philippe Lourier of blogrunner, we now have an RSS feed again, here; and see also this page for more. Much appreciate the help!
For copyright buffs: No hint of litigation about this yet, but it makes for an interesting hypothetical question (assuming Slate didn't get a copyright clearance) -- check out this Slate "Juicy Bits: We read the book so you don't have to" column, and compare it to the situation in Harper & Row v. Nation Enterprises (1985). Not an identical case, of course; for instance, the excerpts here are from a published book, rather than a yet-to-be-published book. Still, it seems like an interesting fair use issue.
More on Blatantly Illegal Minority Preferences: A reader writes:
I am writing to offer some thoughts in response to your post that you find it remarkable that the academic elite would nonchalantly advertise an illegal program.

I would actually find it remarkable if they didn't. For example, here in Georgia we have a state law that provides for an extra income tax deduction of 10% of any amounts paid to minority subcontractors. The law seems clearly illegal and unconstitutional, but it is widely known (it's described on our tax return forms) and remains unchallenged. When I attended law school at the University of Florida, the law school proudly advertised the state-funded Virgil Hawkins Minority Fellowship program, which was available solely to African American law students. In fact, I was told by people I trust and who were in a position to know that the fellowship was provided to all African American law students as a matter of course, and had the effect of providing a free legal education to all such students; I suspect the program is still in place. And in here in Atlanta, the city and Fulton County are frequently being sued over their blatantly illegal set-aside programs. To date the city and county have lost every suit (I think it's 12 or 13 in a row). The city and county file every appeal possible, and, when defeat is certain, they simply tweak the program, rename it and reinstitute it. The revamped program seldom differs much from the version that was struck down.

The behavior described in each of these examples, and in the example cited in your post, makes perfect sense. In each case the administrators promoting the program in question believe that they are taking a principled stand on behalf of a worthy cause, and that the laws proscribing their conduct are unjust. And, equally important, there is simply no downside to taking such a stand. If the arrangements are challenged, the administrators will spend vast sums of other people's money defending the programs. When the programs are ultimately held to be illegal, there will be no personal liability or loss of employment for the persons responsible -- I am sure the Gratz administrators have not suffered professionally. Rather, they will in all likelihood be lionized by their peers, and portrayed sympathetically in the press.

I suspect no court will ever meaningfully sanction this conduct, and so I fully expect it to continue.
What I've found is that those who administer and/or support such programs will go to extraordinary lengths to argue that programs that are clearly illegal are in fact legal. In particular, even though the USSC has never held that redressing general societal discrimination or increasing minority representation in a particular field are adequate constitutional justifications for discriminatory state action, and has frequently held to the contrary, these justifications are still routinely trotted out to support the legality of racial preference programs. This is not the sort of battle, however, that the judicial branch is likely to win on its own. L'havdil [yiddish/hebrew for, drawing an important moral distinction while still using as an analogy--literally, to separate] virtually nothing happened with regard to school desgregation after Brown until Congress passed enabling legislation in the 1964 Civil Rights Act.

UPDATE: A reader, noting that Atlanta is a majority African American city, wonders whether the cases referred to above reflect a "principled stance" in favor of redressing past wrongs, or pure power politics in favor of the majority, noting other Atlanta examples.

Another reader points to a new USDA scholarship, that is available only to students attending colleges with a high percentage of students of Asian descent. This scholarship is clearly intended to benefit Asians, and the USDA has similar scholarships to benefit Hispanics, African Americans, and Latinos, though none are explicitly limited to members of those groups. These scholarships seems unconstitutional under current law to me. It would clearly be illegal to have a scholarship intended for students who attend institutions that are historically disproportionately white, and the Court has held that, in general, equal protection standards are the same for white and minorities. The exception, thus far, is for diversity programs in education, where universities have a countervailing First Amendment academic freedom interest in creating diversity for educational purposes. The USDA programs do not fit this mold.

Another reader notes that the federal government has lots of fellowships available only to members of racial minority groups, so it's no wonder that university and state and local officials feel no compunctions about administering similar programs. If the federal government does it, it must be legal, right?

This reader (from Texas) adds: "Federal agencies send out notices when there's a change in whether or not we can buy office supplies on our grants. If there was a panic about the legality of these programs after the
Michigan decision, I completely missed it...and I didn't miss the
reaction to Hopwood [which outlawed racial preferences in the 5th Circuit, including Texas]." Hopwood was a bright-line case forbidding preferences, whereas the Court's split decision in the affirmative action cases allows rather preferences, amounting even to implicit quotas, for diversity purposes in education, but bans, as I read them: (1) explicit quotas; (2) programs justified not for diversity purposes, but to redress past societal discrimination, increase the representation of minorities in a particular field, or increase the likelihood that certain population groups will be served by professionals graduating from a certain program; (3) explicit point systems that grant all members of certain underrepresented minorities the same number of bonus points on an admissions grid; and (4) if (1) and (3), then implicitly programs that are open to minorities only.
Esoterica: Wow. this sounds awful-- truly, epically awful. A Tim-Robbins-scripted play about the war in "Gomorrah" in which characters named"Woof" and "Pearly WHite" walk around saying "Heil Leo Strauss!"-- with a projection of Strauss' face on the screen, no less.

Robbins is a brilliant actor and a first-rate director. Even when he's scratched his propaganda itch before-- e.g. Bob Roberts-- he's managed to create something with significant entertainment value; and Dead Man Walking managed to oppose the death penalty while still treating it as a vexed moral problem. It was among the most serious treatments of a difficult moral-political issue I've seen on a movie screen.

Now, he appears to have gone way, way off the deep end.
Language: I was singing a Russian song to little Benjamin, and I accidentally misspoke -- instead of the preposition "k" ("to"), I used the preposition "s" ("with"). And then I realized: The phrase "k nim," which I should have used, means "to them," while "s nim," which I accidentally said, means "with him." The same word "nim" means "them" when used with a "to," and "him" when used with a "with." (In Russian, as in Latin and many other languages, nouns and pronouns have many different forms depending on the prepositions with which they're used.)

     So my first thought was: What a weird thing language is. But my next was: I have spoken Russian for over 30 years, a great deal when I was young and quite a bit even after that, and I had never once noticed this. I was never confused; I didn't get it wrong; there was no problem flowing from this odd complexity. Somehow it's perfectly natural for one's brain to deal with weirdnesses like this. Whatever strange forces molded Russian into the beast of a language that it is for foreigners to learn (Russian grammar is much nastier than English), learning it with all its twists and turns is literally child's play for native speakers. And when we use it regularly, we don't even realize how complicated it is.
Rush and The Trees Revisited: I would never have imagined it, but some don't believe Rush's "The Trees" is an anti-egalitarian anthem. Daniel Glick, for example, thinks I've misread the parable and is "pissed" that I am "trying to co-opt" a song he loves for a political view he "abhor[s]." Well, if Glick is going to be annoyed at anyone, it should be Rush lyricist Neil Peart, not me. Peart has long been an admirer of Ayn Rand, and her philosophy of objectivism heavily influenced his lyrics for Rush, especially in the 1970s and 1980s, as detailed in this article from Liberty by Scott Bullock.

Other readers get it, suggesting "The Trees" is Kurt Vonnegut's "Harrison Bergeron" set to music in the forest. To another reader, "The Trees" recalls this quote by Milton Friedman: "I cannot understand the value of a system of equality that cuts down the tall trees to the level of the short ones."
More on the Federal Marriage Amendment: Reader John McGuinness (not the lawprof John McGinnis) writes:
One more note on waiting to pass FMA until a court uses the 14th Amendment or full faith and credit clause to force states to recognize same sex marriages -- it would place FMA supporters in the position of having to invalidate existing same sex marriages, which is at least politically different from preventing them from being valid in the first place.

Andrew Sullivan has already anticipated this, saying that this would result in conservatives fighting for divorce, be undoing existing marriages, etc. Doesn't it seem reasonable to want to settle what the rules are, so that same sex couples don't get thrown into this now-we're-married now-we're-not roller coaster?
My Architect: I enjoyed this film very much. Don't worry if you are not a Louis Kahn fan. Kahn's son made a chronicle of his attempts to know his deceased dad by tracking down his buildings and the people who knew him. It turns out that Kahn cultivated multiple families in secret and trusted only his work, not human relationships. The unraveling of the story increases both our fascination with Kahn and our pity for him and his emotional victims. The movie offers history, a personal interest story, an insightful take on family relations, and of course a look at some important buildings. We frequently doubt whether it is a movie about Kahn or about his son. But most of all the film draws you in and makes the story fun to watch. Like all good "biographies" it asks the question what a human life really consists of. Recommended, and see the second link above (from the ever-excellent www.2blowhards.com) for further links about Kahn and his works.

On a related note, I have just ordered the DVD of another favorite documentary of mine, When We Were Kings, the story of the Ali-Foreman bout in Zaire. And no, I am not a boxing fan, this is a dramatic movie in the best sense of the term.
RSS feed: Our Blogger RSS feed is no longer feeding. We're planning to move away from Blogger soon -- this latest problem was the straw that broke the camel's back -- but if anyone has any tips on how to temporarily fix the feed in the meantime, please let me know (volokh at law.ucla.edu).
George Bush, Liberal President? That's the theme of an article by Prof. Stephen Cox in the most recent issue of Liberty Magazine (not available online, hey, get with it guys!), tracking points I made here, and in the followup posts linked to there.
Balancing Tests, RIP (One Can Only Hope)! On Monday, the U.S. Supreme Court, overturning a 24 year old precedent, held in Crawford v. Washington that the Confrontation Clause means what it says and says what it means: the accused in a criminal trial has the right to be confronted by witnesses against him. This holding replaced the Roberts precedent, which reduced the Confrontation right to a balancing test meant to ensure that out of court testimony was "reliable." Easily overlooked in the opinion is Justice Scalia's principled attack on balancing tests as means of protecting constitutional rights:
We have no doubt that the courts below were acting in utmost good faith when they found reliability. The Framers, however, would not have been content to indulge this assumption. They knew that judges, like other government officers, could not always be trusted to safeguard the rights of the people; the likes of the dread Lord Jeffreys were not yet too distant a memory. They were loath to leave too much discretion in judicial hands. Cf. U.S. Const., Amdt. 6 (criminal jury trial); Amdt. 7 (civil jury trial); Ring v. Arizona, 536 U.S. 584, 611- 612, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (SCALIA, J., concurring). By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design. Vague standards are manipulable, and, while that might be a small concern in run-of-the-mill assault prosecutions like this one, the Framers had an eye toward politically charged cases like Raleigh's--great state trials where the impartiality of even those at the highest levels of the judiciary might not be so clear. It is difficult to imagine Roberts' providing any meaningful protection in those circumstances.
Not surprisingly, Justice O'Connor, who has an inordinate fondness for balancing tests, did not join Justice Scalia's opinion.

Balancing tests are an especially bad idea with regard to constitutional rights, but they hardly serve the interests of justice in other areas of law. Consider the influential "Wade" balancing test in products liability law, which asks that liability for injury be determined by weighing the following factors: 1. The usefulness and desirability of the product-its utility to the user and to the public as a whole; 2. The safety aspects of the product-the likelihood that it will cause injury, and the probable seriousness of the injury; 3. The availability of a substitute product which meets the same need and is not as unsafe; 4. The manufacture's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility; 5. The user's ability to avoid danger by the exercise of care in the use of the product; 6. The user's anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or the existence of suitable warnings or instructions; and 7. The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.

This test is quite obviously incoherent, providing no mechanism for a product manufacturer to determine in advance whether its product will be determined to be defective. As Richard Epstein has written, "It is a utilitarian nightmare. What starts out as a faithful application of the utilitarian calculus ends up as an unprincipled battle of the experts. Everything is admissible; nothing is quantifiable; nothing is dispositive... all too often, anything from a plaintiff's verdict for punitive damages to defendant's verdict of no liability is consistent with the evidence."
Let's hope that Scalia's opinion is the beginning of the end of balancing tests.
Vote Now for 2004 Lysander Spooner Award: From the Laissez Fair Books website.

Laissez Faire Books is pleased to announce the creation of the Lysander Spooner Awards for Advancing the Literature of Liberty. The honor will be awarded monthly to the most important contributions to the literature of liberty, followed by an annual award to the author of the top book on liberty for the year. The annual "Spooner" earns $1,500 cash for the winning author.

LFB.com visitors are invited to place their votes now for finalists for the 2004 Spooner Award, honoring the best book on liberty published in 2003. . . . The nominees are:

Anne Applebaum, Gulag: A History.
David Bernstein, You Can't Say That!.
Clint Bolick, Voucher Wars.
James Bovard, Terrorism and Tyranny.
Bruce Caldwell, Hayek's Challenge.
George Crile, Charlie Wilson's War.
Thomas Fleming, Illusion of Victory.
Philip Harvey, Government Creep.
John Lott, Bias Against Guns.
Tibor Machan, Passion for Liberty.
Charles Murray, Human Accomplishment.
Johan Norberg, In Defense of Global Capitalism.
Walter Olsen, Rule of Lawyers.
Virginia Postrel, Substance of Style.
Jacob Sollum, Saying Yes.
Richard Stroup, Eco-nomics.
Peter Wood, Diversity.
The top four vote-getters will then be submitted to a jury, to be made up of members of the Center for Independent Thought (LFB's parent organization) board of directors, as well as other prominent libertarians and scholars, for the final award selection, to be announced in March.
Click here to go to the page where you can vote.

Tuesday, March 9, 2004

Praise for Lochner Circa 1979: A while back, I wrote that between the demise of the Supreme Court's liberty of contract jurisprudence during the New Deal period and publication of Bernard Siegan's Economic Liberties and the Constitution in 1980, I could find only one article, chapter, or book that had anything good to say about the Court's most famous liberty of contract case, Lochner v. New York. Well, it turns out that in additon to the one article I previously cited, William Letwin beat Siegan by a year. Tim Sandefur pointed me to Letwin's "Economic Due Process in the American Constitution And The Rule of Law" in Liberty and the Rule of Law, ed. by Robert L. Cunningham, (Texas A&M U Press 1979). In this chapter, Letwin clearly evinces sympathy for Lochner, even concluding that "[w]hether economic due process will be restored we cannot foretell, but it could be and should be." On the other hand, Googling Letwin suggests that he spent his career as a professor in England, not the U.S., so my original statement still stands, if we limit the author pool to this side of the Pond.
Minorities-Only Fellowships: In light of the outcome of Gratz v. Bollinger last term, invalidating University of Michigan's automatic award of twenty admissions "points" to minority students, it seems clear that educational programs that are limited to minority students are illegal, and, when funded by the government, unconstitutional (the standard, according to Supreme Court precedent, being the same). Nevertheless, my inbox brings me news of the "National Science Foundation's Law and Social Science Program to support the Law and Social Sciences Pre-Dissertation Minority Fellowship and Mentoring Program." Only first and second-year graduate students from underrepresented minority groups in law and social sciences (which, unlike most affirmative action programs, includes Asian Americans) who are in social science departments are eligible to apply. My views on affirmative action are tinged with a certain degree of ambivalence, at least with regard to African Americans, but I find it remarkable that the culture of racial preferences is so strong among the academic elite that what seems like a blatantly illegal, exclusive program would be advertised so nonchalantly.
Not a compelling argument against the Federal Marriage Amendment: Yale professor Lea Brilmayer writes, in today's Wall Street Journal:
[N]obody [has] bothered to check whether the Full Faith and Credit Clause had actually ever been read to require one state to recognize another state's marriages. It hasn't. Longstanding precedent from around the country holds that a state need not recognize a marriage entered into in another state with different marriage laws if those laws are contrary to strongly held local public policy. The "public policy doctrine," almost as old as this country's legal system, has been applied to foreign marriages between first cousins, persons too recently divorced, persons of different races, and persons under the age of consent. The granting of a marriage license has always been treated differently than a court award, which is indeed entitled to full interstate recognition. Court judgments are entitled to full faith and credit but historically very little interstate recognition has been given to licenses. . . .

If today's proponents of a marriage amendment are motivated by the fear of some full faith and credit chain-reaction set off in other states by Massachusetts, they needn't be. . . .

Unlike most other hotly contested social issues, the current constitutional marriage debate actually has a perfectly good technical solution. We should just keep doing what we've been doing for the last 200 years.
I actually agree with a good deal of Prof. Brilmayer's other points, such as the value of leaving the matter to the states, and the impropriety of trying to save Massachusetts voters from their own Supreme Judicial Court's interpretation of the state constitution. But the argument I quote above has an obvious weakness -- it only works so far as courts are willing to recognize "longstanding precedent."

     Lawrence v. Texas shows that the Supreme Court is willing to overturn a directly on-point Supreme Court precedent that's under 20 years old, and at the same time strike down statutes that have been seen as constitutional for centuries. Goodridge shows that some judges are willing to overturn a many-centuries-old practice of limiting marriage to male-female couples; sure, that was state judges interpreting the state constitution, but what state judges do now, federal judges might do later. On matters of gay rights, quite a few judges -- not by any means all, but quite a few -- are quite willing to set aside both precedent in the sense of traditional understandings and precedent in the sense of squarely controlling Supreme Court decisions. And of course many legal scholars in the gay rights movement has been assiduously arguing that courts should use the Fourteenth Amendment to require states to recognize in-state same-sex marriages, and the Full Faith and Credit Clause to require states to recognize out-of-state same-sex marriages. Judges might well listen to them more than they would to Prof. Brilmayer.

     Now of course some people approve of Lawrence and Goodridge, and they may approve of reversing the longstanding precedent that Prof. Brilmayer points to (or they may have different interpretations of this precedent). Others might mildly support a state-by-state approach, and hope that courts stick to the precedent that Prof. Brilmayer describes, but not be too upset about a contrary outcome and thus not worry too much about the possibility of that outcome. (Remember, I'm arguing that federal courts might use the Fourteenth Amendment or the Full Faith and Credit Clause to require states to recognize same-sex marriages, not that they surely will do so.)

     But if you think that the state-by-state approach that Prof. Brilmayer outlines is good, and the alternative of a judicially mandated decision is really bad, then you might well worry that assurances based on "longstanding precedent" aren't that helpful. You might also think that now is the best time to reinforce that precedent with an explicit constitutional amendment. Today, about 30-40% of the public seems to support same-sex marriage rights; perhaps a Federal Marriage Amendment could be passed in the face of that. But if the number rises to, say, 40-45%, then it might be too late -- if courts then reverse Prof. Brilmayer's longstanding precedent, there'll be nothing that the 55-60% (and many more in some states) could do.

     So I can certainly see why people who are really worried about courts mandating same-sex marriage won't be much relieved by Prof. Brilmayer's argument. That shouldn't be an argument, even for them, in favor of a really broad FMA, like the Musgrave draft, which would strip states of the power to decide the matter for themselves. But it would be an argument for them to support a narrower FMA, such as one based on the second sentence of the Hatch draft, "Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman." Such an FMA would make sure (or as sure as we can be) that courts will indeed allow the state-by-state approach that Prof. Brilmayer advocates.
More on Sen. Hatch's alternative Federal Marriage Amendment draft: The more I think about it, the more I dislike the first sentence of the Hatch FMA draft, even while I generally support the second. The draft reads:
Civil marriage shall be defined in each state by the legislature or the citizens thereof. Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman.
Here are the possible problems with the first sentence:
  1. This morning, I mentioned that the sentence would almost certainly prohibit common-law marriages, which several states recognize, and which I don't think anyone intends to just erase. I still think that's clearly right: The whole point of common-law marriages is that they were defined by judges (though of course subject to the possibility of legislative modification, as with nearly all of the rest of the common law), not the legislature or the citizens.


  2. The first sentence is pretty clearly intended to get the courts out of defining state marriage law. That would reverse the Massachusetts Goodridge decision -- but it would also keep courts from doing the normal sort of gap-filling definition that courts routinely (and largely unobjectionably) do. Statutes often define some matter only in general, and leave it to courts to figure out the details. The amendment would apparently prohibit this, since it purports to take courts entirely out of the business of participating in defining marriage -- not just defining it in a final, legislature-superseding way as in Goodridge, but also helping the legislature define it by interpreting vague terms in the marriage statutes, or filling other gaps.


  3. If you read this literally, then this means that marriage-related bills can't be vetoed by the governor. There is Supreme Court precedent for the proposition that "the legislature" in some parts of the Constitution (though not in all parts) means "the legislature plus a gubernatorial veto, if the state allows a gubernatorial veto" -- but why enact language that's literally not quite right, and hope that the courts will rescue you?


  4. Conversely, if courts solve the governor problem by concluding that the governor is an inherent part of the legislative process, then they might also conclude that the courts are just as much an inherent part of the legislative process, even when they strike down state law under the state constitution (or interpret state law to avoid conflicts with the state constitution). A similar issue came up in Bush v. Gore, where Justice Stevens' dissent (joined by Justices Ginsburg and Breyer) concluded that the reference to "legislature" in article II -- "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors" -- referred to legislative judgment as reviewed by state courts:
    [Article II] does not create state legislatures out of whole cloth, but rather takes them as they come -- as creatures born of, and constrained by, their state constitutions. . . . The legislative power in Florida is subject to judicial review pursuant to Article V of the Florida Constitution, and nothing in Article II of the Federal Constitution frees the state legislature from the constraints in the state constitution that created it. . . .
    This was indeed a dissenting opinion, not the majority; but only three Justices (Rehnquist, Scalia, and Thomas) explicitly disagreed with it. Two more Justices might come around to this viewpoint -- either, for instance, Souter and Kennedy, or two new appointees -- or a state supreme court (think the Massachusetts Supreme Judicial Court) might endorse the Stevens view, and the U.S. Supreme Court may refuse to hear the case. If that happens, then the first sentence won't even achieve its apparent purpose of overturning Goodridge, and keeping state judges from mandating same-sex marriage as a matter of the state constitution.
     None of these outcomes are certain (though I think the prohibition of common-law marriages would take a lot of textual squirming for courts to avoid). But they are plausible enough that they counsel in favor of correcting the language to avoid these problems.

     My preference would be just to stick with the second sentence:
Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman.
This won't overrule Goodridge, but as I mentioned, I think that the Massachusetts voters should save themselves from the Massachusetts Supreme Judicial Court, rather than having the rest of the country save them. But if you must overrule Goodridge, then at least do it more clearly:
Nothing in this Constitution or in any state Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman.
The one bad side effect of this is that it would prevent voter-approved state constitutional amendments authorizing same-sex unions; but that's not a huge problem, I think, since legislatures and voters would still be free to authorize such unions (or marriages) by statute, which is how marriages are generally defined. But if you really worry about that, try something like:
No provision of this Constitution or of any state Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman, unless the provision explicitly provides for such an extension.
I realize that this might yield some debates about what's "explicit" and what's not, but I think that most of the time it will be quite clear. A constitutional provision securing to everyone "the equal protection of the laws" does not explicitly provide for an extension of marital benefits to any union other than a man and a woman. A constitutional provision providing that "People who enter into same-sex civil unions shall have the same rights as people who are married" does explicitly provide for such an extension. Even wayward courts will, I think, do a pretty good job of interpreting this.

     In any case, any of these proposals would, I think, be better than one that includes the buggy first sentence from the current proposal.

UPDATE: My original post said that Utah common-law marriages might be jeopardized by this law, but lawprof Kate Silbaugh points out that Utah's common-law marriage regime is actually endorsed by state statute, Utah Code Ann. 30-1-4.5 (1998). Nonetheless, I think my point still stands as to the other states that recognize common-law marriage but that don't have statutes endorsing it (for more details, see my post on the subject from this morning).
"9th Circuit Court Overturns New Iraq Constitution."
More Martha Stewart and 18 USC sec. 1001: My colleague Bill Klein, who knows a lot about corporate law, writes:
Maybe the moral of the story is not that you should refuse to talk to investigators without a lawyer's advice, but to be careful about your choice of lawyer. Alan Dershowitz, in the morning's WSJ, notes that [Martha Stewart] did consult with her Wachtel, Lipton lawyers before she told the fatal lie. So rich and poor are equally free to receive bad legal advice.
Either that, or fail to act on good legal advice.
Do the university officials not know the law? Or do they just not care? The latest attempt to punish students for wearing blackface to a theme party -- this time at Georgia State University -- from the Atlanta Journal-Constitution:
During the weekend of Jan. 24, the Pi Kappa Alpha fraternity hosted an off-campus party with the theme "Straight Outta Compton," with guests encouraged to wear hip-hop clothing . . . .

Two fraternity members showed up in blackface . . . . [T]he university has charged [the students] with discriminatory harassment under the student code of conduct . . . . They face a range of punishments including diversity training and possible expulsion. The university also filed charges against the fraternity, and a hearing will be held in a few weeks. . . .
Uh, except that wearing blackface -- like wearing other potentially offensive costumes -- is protected by the First Amendment, and can't be suppressed on the grounds that it expresses a racist message (the theory of the harassment claim). The U.S. Court of Appeals for the Fourth Circuit made that quite clear in holding that George Mason University violated the First Amendment in punishing such expression (see Iota Xi v. GMU, 993 F.2d 386 (4th Cir. 1993)), but in any event it's a pretty straightforward application of well-settled Supreme Court precedent. Seems like an open-and-shut First Amendment case against the university here.
Are Both Conservatives and Liberals Judicial Activists?: On his new blog, Tutissima Cassis (How do people think of these names?), Nathan Oman takes on Jack Balkin's accusation that conservatives are closet activists.

Balkin sums up his argument by claiming, "The fact is, we are all living constitutionalists now; but only some of us are honest about it." This, unfortunately, is not exactly true. Or at least, it is not really complete. We could just as easily say, "We are all originalists now." When conservative justices write aggressive federalism decisions, lots of liberals like Balkin get red in the face, pound their fists on the table, and say "Damn it! That is not what the Eleventh Amendment was supposed to mean!" It is also true that when a liberal justice issues an opinion pulling a right to contraception out of the constitution, he doesn't say "I have invented a new constitutional right! Look what an honest 'living constitutionalist' I am." No. He gives us a song-and-dance about penumbras and the basic concepts of liberty enshrined in our founding document, et cetera, et cetera. So it is neither true that only one side of the debate is honest about what it is doing, nor is it true that we are all really living constitutionalists.
All right, I have exercised far too much restraint here. Assume for the sake of this argument (a) we are talking about today's conservatives and liberals and (b) judicial activism (as I defined it below) consists of "judicial decisions that conflict with the Constitution, either because they're putting into the Constitution something that's not there, or because they're refusing to enforce what is there." (Humor me here. I know it assumes a defensible method of interpretation--which I say more about at the end)

If forced by this debate to generalize, I contend, contra Jonah, that many liberals and many conservatives are judicial activists for entirely understandable reasons. Liberals advocate disregarding what the Constitution says when the text fails to comport with their conception of justice. So the Commerce Clause must be read to reach wholly intrastate economic activity (rather than the trade in goods between the states) because only by doing so will one establish justice, e.g., between employers and employees. By the same token, Conservatives advocate disregarding what the Constitution says when the text fails to comport their conception of the rule of law. So judges must ignore the Ninth Amendment and the Privileges or Immunities Clause because these provisions are insufficiently rule-like and too vague to be enforced without giving judges too much discretion. (Note that I approve of both justice and the rule of law.)

On the other hand, contra Nathan, it is possible to enforce the original meaning of the whole Constitution--the parts you like along with those you do not--though many parts of the Constitution are quite open ended and leave considerable discretion to constitutional interpreters. This is not an argument that you should so enforce the whole Constitution, only that it would be quite possible to do so. That liberals and conservatives do not do so, does not make it impossible. Rather, it suggests that both sides are unhappy with parts of the Constitution for different reasons--reasons they find sufficiently compelling to trump the text where it gets in the way. But it is possible to like the original meaning of whole Constitution in which case enforcing all of it would not only be possible, it would be a virtue.

But does this mean that one is an originalist solely because one likes the results such originalism reaches. While results are important, they are not all that matters. A written constitution can be viewed as a structural feature of this particular Constitution, as are separation of powers and federalism, that serves particular purposes. The most important of these is that we need a written constitution to subject to law those who rule us. And if the very rulers who are supposed to be bound to the Constitution are able to disregard, on their own authority, portions of it when it conflicts with their conceptions of justice or the rule of law, this structural feature of the US Constitution will be lost. To prevent this, the meaning of the Constitution must remain the same until properly changed. (I defend this claim at length in Chapter 4 of Restoring the Lost Constitution.)

Which brings me to the following Larry Solumesque conclusion: Any method of interpretation that is flexible enough to allow judges to reach their favored result even when it conflicts with the text will lead to the downward spiral concerning judicial appointments. Because any justification for "activism" of this sort is very likely to be equally adaptable to the views of one's political opponents, the only way to prevent results one finds abhorrent is to fight against your opponent's judicial nominees to the death. Only a commitment to the (original meaning of the) whole Constitution stands any chance of avoiding this. Because the more open-ended provisions of the text still require constitutional construction to be applied to the facts of particular cases, even originalism will only reduce not eliminate such struggles. But that is both a cost and a virtue of the particular Constitution we have inherited. And it provides no excuse to disregard the constraints that are in the written Constitution.
Academic freedom and academic governance: Someone asked me why I'm so troubled by the University of Southern Mississippi controversy. After all, the university is trying to fire the professors not for their scholarship or their teaching, but for their involvement in an investigation of an administrator's alleged fraud (or, according to the University, for their unspecified misconduct in this investigation). What's the big deal?

     Well, to begin with, I think that academic freedom should secure the faculty's right to comment on all sorts of matters, from politics and science to the way the university conducts its affairs. In other workplaces, including government workplaces, the need to maintain good working relations or prevent tension, controversy, or public disapproval of the employer may justify restrictions on what employees can do. But the premise of academic freedom is that universities operate better as centers of learning and inquiry when they allow a broad range of speech, even despite these costs.

     But there's also a much more specific reason to protect this speech: Academic freedom also embodies a tradition of internal governance, by which many of the decisions about the way the university operates are made by faculty, or at least with the advice of faculty. This self-governance is preservative of other aspects of academic freedom, but it's also supposed to be helpful in maintaining the quality of research and teaching as well. To my knowledge the norm in serious American universities is that the faculty get to make many decisions, such as hiring, curriculum, academic standards, and so on, and while the administration may sometimes veto some such decisions, and may take the lead in other decisions, the faculty generally plays a serious and important role (sometimes as the primary decisionmakers and sometimes as influential advisors).

     If this is so, then the faculty -- as joint governors of the school -- must have the right to criticize the administration, which must of course include the right to investigate alleged resume fraud by the University's vice president of research. If the University is right that the faculty members whom it's trying to fire engaged in defamation (i.e., were themselves lying) or real misuse of university facilities, then its actions might well be proper. But if the University is just trying to silence faculty members whose criticisms it sees as disruptive, that's very dangerous indeed. Shared governance, whether in Washington, D.C. or in a university, necessarily involves some disruption and tension. Trying to eliminate that disruption and tension is impossible unless one abandons the shared governance project.
Investments and Interest Rates: Interest rates are at historic lows, and I've see countless articles suggesting that they are inevitably going to rise. Everyone knows that long-term bond funds are a terrible place for investments if interest rates rise, and the articles duly note this. But the articles never state what investments, if any, are attractive ones when rates rise. Are there investment vehicles that move more or less in the opposite direction of long-term bond funds? Inquiring minds want to know.

UPDATE: Reader William Abbott notes the following two 'inverse bond' mutual funds designed to move opposite the latest 30-year treasury bonds:
Profunds Rising Rates Opportunity Fund, and Rydex Juno Fund. Both have only short-term records, invest in very complex vehicles, and charge high annual fees (1.9 and 1.4%, respectively).
Tyler Cowen cautions that nominal interest rates are low, but real interest rates are not that low by historical standards. Reader Ted Frank notes that speculative stock investments, such as Internet stocks, tend to do poorly in a rising interest rates environment. And several readers note that commodities tend to do well when interest rates rise, as this is usually a sign that inflation is also rising.
I seem to vaguely recall that one can invest in funds that invest in long-term loans that actually increase in value if rates are on an upward trajectory, because the loan rates float and increase with rising rates. At least, if there are any closed-end mutual funds that invest in such loans, they would likely trade at a relative premium when rates started to rise.
Cyberextortion directed at corporations:
"Online gambling sites are betting on tighter security after a recent wave of computer attacks from cyberextortionists plunged several into darkness. Shadowy hackers demand $20,000 to $50,000 for protection from distributed denial-of-service attacks, which flood a Web site with data so that it is overloaded.

BetWWTS.com in Antigua was forced to pay $30,000 when hackers shuttered its site and thousands of its customers couldn't place wagers worth an estimated $5 million, CEO Simon Noble says.

It's one of the lucky ones. Since the attacks started a few months ago, a handful of smaller operations have gone out of business or abandoned Web sites in favor of phones to avoid the problem.

"These sites rely on transactions with clients every few seconds. You disrupt that, and you've got major problems," says Michael Caselli, editor of Online Casino News. "A bank, by comparison, can shut down its site for an hour or two.""

The modus operandi is scary:
"Gangs of computer crooks allegedly operating out of Eastern Europe have collected protection money from 10% to 15% of the companies they have threatened, says DK Matai, executive chairman of security company MI2G.

Most issue ultimatums in e-mail messages in the days leading to major sporting events, such as the Super Bowl. Often, threats are issued after an attack, demanding that American currency be sent to a Western Union office.

BoDog Sportsbook & Casino in Costa Rica was forced to pay more than $20,000 last fall when hackers immobilized its site, says Rob Gillespie, the company's president."

Since Internet gambling is illegal in the U.S., many of these sites have no recourse under American law. More generally, it is hard to identify and pin down the cyberextortionists.

Here is the full story. It is not an encouraging development, and I fear that technological developments will lead to far more anti-corporate extortion in the future, whether directed at gambling firms or not.
Sen. Hatch's alternative Federal Marriage Amendment: [UPDATE: For more recent thoughts on this, which are more critical of the proposal's first sentence (though still supportive of the second sentence), see here.]

     Sen. Orrin Hatch proposes an alternative Federal Marriage Amendment, which even I would support in principle (for reasons mentioned over the last couple of weeks):
Civil marriage shall be defined in each state by the legislature or the citizens thereof. Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman.
This means that states will be free to decide this for themselves, which I think is right -- it will both keep federal courts from forcing Utah to recognize gay marriage, and keep the rest of the country from forcing (say) Oregon not to recognize gay marriage.

     In practice, I think that, as with many proposals, we need to think carefully about the language. For instance, wouldn't this (inadvertently, I suspect) prohibit common-law marriages, and perhaps even void existing ones, at least in states where common-law marriages really do flow solely from judge-made rules, with no statutory authorization?

     There's nothing per se improper, I think, in marriage law being defined in the first place by judges rather than legislatures, so long as the legislatures have the final say -- contract law, tort law, even criminal law has historically been defined this way in the Anglo-American system; I suspect the same is largely true of family law. And even if common-law marriages are something of an anachronism, they do seem to peacefully exist in several states (including, for instance, Alabama and Texas); do we really want to undo them?

     I suppose state legislatures could quickly validate such marriages by simply enacting a statute explicitly defining civil marriage to include common-law marriage (maybe some common-law marriage states already have such statutes, but a quick search through Alabama and Texas statutes found nothing like that there). But why force states to do that? And what happens to existing marriages if states don't validate them in time -- do they just get dissolved?

     In any case, this isn't a fatal problem; the solution to it is to change the proposed draft, not reject it. But it's worth thinking hard about such problems up front.

UPDATE: I neglected to mention one other objection, which goes more to the core of the proposed Amendment (I had thought of this and blogged about this point in the past, but just didn't think much about it when writing the post above): I suspect that the first sentence is intended to (and is likely to) prevent state courts from forcing legislatures to recognize same-sex marriages under state Constitutions, much as the Massachusetts Supreme Judicial Court did. In addition to outlawing common-law marriages -- likely an unintended result -- the amendment would probably also prohibit such state constitutional decisions, likely the intended result.

     I think that's a mistake. I disagree with the Massachusetts court's decision, but that should be a matter for Massachusetts legislators and voters to correct, not for the rest of us to mess with. I think the solution both to this problem and to the common-law marriage problem is to just use the second sentence, and drop the first.

     I can't say that I feel terribly strongly about this question. To me, it's much more important to leave the voters and legislators of each state free of nationwide interference in this matter than it is to leave the judges free of nationwide interference. But this does make it somewhat harder for me to support the proposal. Perhaps if it's between the Hatch proposal and nothing, I'd go with this; but since I also don't feel terribly strongly about the need for the Amendment in the first place, even a fairly minor federalist objection may be a significant argument to me against it. So I hope that as this wends its way through the political process, the first sentence will indeed get dropped.
FURTHER UPDATE: My original post said that Utah common-law marriages might be jeopardized by this law, but lawprof Kate Silbaugh points out that Utah's common-law marriage regime is actually endorsed by state statute, Utah Code Ann. 30-1-4.5 (1998). Nonetheless, I think my point still stands as to the other states that recognize common-law marriage but that don't have statutes endorsing it (for more details, see my post on the subject from this morning).
Unintentional self-parody department: Clayton Cramer endorses Orrin Hatch's proposed alternative Federal Marriage Amendment, on which I post more above. Cramer's theory, and I kid you not: "If the point is reached where a majority of a state wants gay marriage, they'll probably legalize polygamy, bestiality, and then combine them into polygamous bestiality." O-kay.
What is "judicial activism"? Interesting that Larry Tribe says, below, "It's almost embarrassing for anyone who is a serious thinker about the Constitution to bandy [the phrase 'judicial activism'] about." Let's go back to the time of the summer 2001 Should Ideology Matter? hearings in the Senate Judiciary Committee. I was in the room, because Eugene and my then-boss Clint Bolick were testifying that day, and recall Larry Tribe saying:

This isn't the time or place to debate the details of Bush v. Gore, a subject about which I have written elsewhere; I stress the case because it shows at least as dramatically as any case possibly could just how much may depend on the composition of the Court; how basic are the questions that the Court at times decides by the closest possible margins; and how absurd are the pretensions and slogans of those who have for years gotten away with saying, and perhaps have deceived even themselves by saying, that the kinds of judges they want on the Court, the "restrained" rather than "activist" kinds of judges, the kinds of judges who don't "legislate from the bench," are the kinds exemplified by today's supposedly "conservative" wing of the Court, led by Chief Justice Rehnquist and supported in area after area by Justices O'Connor, Scalia, Kennedy, and Thomas.

Those are, of course, the five justices who decided the presidential election of 2000. They are, as well, the five justices who have struck down one Act of Congress after another -- invalidating federal legislation at a faster clip than has any other Supreme Court since before the New Deal -- on the basis that the Court and the Court alone is entitled to decide what kinds of state action might threaten religious liberty, might discriminate invidiously against the elderly or the disabled, or might otherwise warrant action by Congress in the discharge of its solemn constitutional power under Section 5 of the Fourteenth Amendment to determine what legislation is necessary and appropriate to protect liberty and equality in America.

That last sentence made my (and some of my Institute for Justice co-clerks') blood boil when we heard it.

Now note that Tribe isn't actually coming out and saying that the conservative justices are activist. (That would be, after all, "almost embarrassing." Almost.) He's just mocking the conservative usage that says liberals are activist while conservatives aren't -- so he may plausibly be able to say that he's just showing how conservatives are wrong by their own lights, not endorsing an alternative view of activism.

But . . . you read the excerpt above (the long sentences are typical of Tribe) and you judge. Most conservatives don't say that activism has something to do with the number of Acts of Congress you strike down; they say, as Randy is quoted as saying below, that the Court is enforcing stuff that isn't in the Constitution or not enforcing stuff that is. Does Tribe misinterpret conservative views of activism so seriously? Or is this his own ("almost embarrassing") view of activism?

P.S. I should mention, before someone writes in on this, that perhaps Tribe just isn't "bandy[ing]" in this case, so we're saved from almost embarrassment.

More seriously, the best reading of Tribe's last sentence is probably that striking down laws generally isn't activism -- the activism is just the Supreme Court's assertion that only it gets to judge whether an Act of Congress is a legitimate use of Congress's Section 5 power. So, on my reading of Tribe's view, he really is saying that the Supreme Court is being activist because they're using a (in his view) nonexistent power to second-guess Congress on whether it's using its Section 5 power properly.

Still, if Tribe is trying to show the conservatives are wrong by their own lights, this doesn't work, because my impression is that conservatives have never particularly believed that Congress got to be its own judge for Section 5 compliance. And if Tribe is trying to say that the Justices are being activist in his own view, then in light of his more current quote (from the top of the post), he really ought to be saying instead that the Justices are just wrong on doctrine.

UPDATE: A reader writes in to remind me of a passage in Laurence Tribe, eroG v. hsuB and Its Disguises: Freeing Bush v. Gore from Its Hall of Mirrors, 115 Harv. L. Rev. 170, 300-301 (2001) [yes, that's a correct jumpcite!], where Tribe writes (paragraph breaks added):

Bush v. Gore [should be read] to counsel against judicial activism in cases in which such textual and structural guidance as the Constitution provides points toward permitting the political branches to resolve the dispute under procedures at least sketched, if not fully spelled out, by the Constitution itself and by statutes or treaties promulgated pursuant to it; in which there is no clearly threatened violation of any constitutional right that the political branches are structurally incapable of, or indisposed toward, protecting; in which taking jurisdiction away from the political branches in the circumstances presented would yield no coherent remedy for whatever right is said to be threatened; in which the contemplated judicial action would serve to entrench the power of the political party or group seeking such action rather than to protect relatively powerless individuals or groups from the entrenched power of others; or in which the judicial action in question would advance the interests of the controlling majority on the Court in some extrinsic way, as by assuring the nomination of like-minded replacements.

Bush v. Gore fails on all five counts.

Alternative approaches to filling in the blank could range from foolish non sequiturs to tragic extrapolations. The counsel against activism could be universal, suggesting a "go slow" posture on essentially everything. The counsel could be politically polarized, suggesting passivity with respect to either "liberal" or "conservative" causes. Or it could be tied to whole chunks of the constitutional architecture, urging passivity, or even total withdrawal, with respect to structural matters such as those bearing on the separation of powers and/or federalism or with respect to all rights whose derivation entails going beyond the freedoms or privileges expressly enumerated in the Constitution's text and reflected clearly in its history, such as those rights that rely on structural or philosophical inferences, whether called penumbras (usually by liberals) or postulates (usually by conservatives).

In other words, Tribe doesn't think there's anything wrong as such with using the phrase "judicial activism." My reader writes that "he, presumably like most 'serious thinkers' about the Constitution, thinks there are situations in which the phrase is useful and situations in which it is not."
So-called Libertarian "Utopianism": I had intended to respond to Richard Epstein' reply to my comment on his speech (got that?) in Reason when I had the time. I still hope to do so in the future, but I appreciate and wholly endorse Sasha's defense of my so-called "utopianism"--a charge I found bizarre given what I said about the issue, which he quotes below. In addition to Sasha's, there is a very thoughtful defense of David Friedman and me from the charge of utopianism by Misha Ghertner on Catallarchy.net called Utopia is Not an Option. I must say I am somewhat amazed at the intensity of reaction to our Reason exchange.

Overlooked in all this critical reaction is the fact that proponents of liberty are constantly asked about hypothetical end states. ("So if you're for liberty, then how would you provide X?" or "If you're for liberty, does that mean you would allow Y behavior?") For that matter, so too is anyone who presents a radical challenge to the status quo. Therefore, they need to have thought about these questions, even if they do not believe these end states will ever come about. But most scholars who are libertarian spend the overwhelming proportion of their time thinking and writing about more day-to-day concerns. A law professor like me might write about whether the application of the Controlled Substance Act to persons who grow cannabis to alleviate their suffering exceeds the power of Congress under the Commerce Clause. An economist like David might analyze whether the government should use coercion to break up Microsoft, or stop United from merging with USAIR. Stuff like this.

PS: Given my proclivity for self-citation, I would never have said "look it's Halley's Comet!" I am far more likely to have said, "Look at Chapters 12, 13 & 14 of The Structure of Liberty: Justice and the Rule of Law in which I explain what a polycentric legal order is and how it might work in practice.

Monday, March 8, 2004

Very sad news: Susan Moller Okin has died. Stanford has now released its obituary.

UPDATE: I'll write more here as I'm able. For now I'll note that the tributes to Okin are likely to (rightly) emphasize her best-known and most influential work, Justice, Gender, and the Family. But Okin's subsequent fame as a normative liberal feminist shouldn't obscure her ealr contribution to feminist history of political thought, Women in Western Political Thought. Predating Carole Pateman's better-known The Sexual Contract by a decade and even my colleague Jean Bethke Elshtain's Public Man, Private Woman by a few years, WWPT demonstrated the centrality of questions of gender and women's status to a full understanding of the canon of political theory; and showed some of the ways in which that canon distorted our thought about gender. This was not the sort of casual dismissal of Dead White Men that would become so easy a decade or more later; it was an early grappling with important works and important arguments that implicitly or explicitly said a great deal about gender, but that hadn't been analyzed through that lens by feminists before. In my view it is Okin's finest work; it is certainly the one that has had the greatest effect on my research and teaching.
What is "Judicial Activism"? Sunday's Boston Globe contained a story--Judging the Judges--in which I and other scholars were quoted on the meaning of "judicial activism":

[T]he charge of judicial activism has become a "ubiquitous epithet" and unhelpful "scare phrase," Georgetown law professor Peter Edelman recently noted in The Washington Post. Constitutional law scholars across the political spectrum tend to cringe at the way the phrase is used in public debate. "It's almost embarrassing for anyone who is a serious thinker about the Constitution to bandy it about," says Harvard University constitutional scholar Laurence Tribe, who has spoken out in defense of the SJC ruling.

"Most people who use the term don't provide a coherent definition of it. It typically means judicial opinions with which they disagree," says Randy E. Barnett, a law professor at Boston University who considers himself a libertarian and a defender of "original intent" in Constitutional matters. [He should have written "original meaning" not "original intent" --RB.]

Still, the charge isn't going away. Though it is misused by partisans, scholars have for generations held serious debates about judicial activism--and have sometimes even found ways to embrace it. In the political fray, the charge of judicial activism is usually made when court decisions are seen to be interfering with the will of the majority as expressed through their elected representatives--when they are seen to be "making law" rather than interpreting it. But judicial activism, says Barnett, "can't just mean striking down decisions of the legislative branch." (The doctrine of "judicial review," enshrined in American jurisprudence by Justice John Marshall in the famous 1803 case of Marbury v. Madison, gives the judiciary the power to override actions of the other branches of government.) "What it ought to mean," says Barnett, "is judicial decisions that conflict with the Constitution, either because they're putting into the Constitution something that's not there, or because they're refusing to enforce what is there." . . .

. . . But some have suggested ways of changing "judicial activism" from a term of partisan abuse to a helpful analytic tool. In an article last spring in the magazine Legal Affairs, University of Chicago law professor Cass R. Sunstein offered a neutral definition of judicial activism. "A decision that is activist is not necessarily wrong," he wrote. "No one thinks that a court should uphold all actions of the other branches and so a court that is activist, in this sense, might be something to celebrate." By extension, a court that is "restrained" -- one that seldom strikes down laws or reverses bad precedents--may be falling down on the job.

For terms like "judicial activism" and "judicial restraint" to have useful meaning, Sunstein argued, they must be modified. "A court that wrongly invalidates statutes might be said to show unjustified activism," he wrote, while one that frequently makes political decisions not remotely tethered to the Constitution might be held guilty of illegitimate activism. Furthermore, a court that wrongly upholds statutes might be said to show unjustified restraint, while a court that frequently fails to uphold clear Constitutional principles is guilty of illegitimate restraint. (The thrust of Sunstein's article was that the Rehnquist Court is acting with "illegitimate activism" -- as did the Warren Court on some occasions.) Of course, Sunstein concedes, such terms do not eliminate the hard work of evaluating the merits of court decisions.
For a recent and excellent exchange between Larry Solum, Jack Balkin and Jonah Goldberg, see Larry Solum's Jargon: Or Why Neither "Judicial Activism" Nor "Liberal" versus "Conservative" Provide Meaningful Focus for Constitutional Debate on the Legal Theory Blog (and the links therein). Here is how he concludes:

The point is that both Jonah Goldberg and Jack Balkin are engaged in a pseudo-debate. The proposition that liberals are more guilty of the sin of judicial activism than conservatives or vice versa is so vague as to be virtually meaningless. This is the kind of debate that invites simplification and rhetorical flourish but resists resolution through reasoned argument.

Nonetheless, I think that Balkin is on to something important. I believe that Balkin's first instinct was right. We can distinguish between judges that read their own values into the constitution and those who follow the rules laid down. We can distinguish between decisions that depart from precedent, text, and original meaning--and those that do not. Our ability to make these judgments is critically important, because it opens the door to constitutional formalism--the depoliticization of the process of constitutional adjudication.
Check it out.
Potentially huge academic freedom violation: According to the Chronicle of Higher Education,
The president of the University of Southern Mississippi on Friday suspended with pay two tenured professors and began procedures to terminate their employment.

Francis D. Glamser, a professor of sociology, and Gary A. Stringer, a professor of English, learned of the decision Friday morning at separate meetings with the president, Shelby F. Thames. The professors were locked out of their offices on the same day.

"It is regrettable that the actions of Dr. Francis Glamser and Dr. Gary Stringer have forced the university to take these measures," a university news release said. However, the university did not say what the professors had done and would not comment on the reasons for the suspensions.

Mr. Glamser, president of the campus chapter of the American Association of University Professors, said in a telephone interview that he and Mr. Stringer had been suspended because of their involvement with the AAUP's investigation of the academic credentials of a senior administrator.

In December, according to Mr. Glamser, he received an anonymous packet of information alleging that Angeline Godwin Dvorak, the vice president for research and economic development, had misrepresented herself on various documents as having been a tenured associate professor of English at the University of Kentucky. Ms. Dvorak has denied falsifying her credentials.

Mr. Glamser said he had notified Mr. Thames of the allegations but never received a response. In January, the AAUP created a committee to investigate the charges. Because of his background in English, Mr. Stringer was asked to head the committee.

Mr. Glamser said that he and Mr. Stringer had been accused of "defamation and misuse of university facilities" in connection with the AAUP investigation. "For example, if we made a phone call about that issue, it would be considered a misuse of the phone," he said. "Or if we sent an e-mail about that issue using our computer, it would probably be construed as a misuse of the computer." . . .
It's hard to evaluate this fully without more detailed information on what exactly the University thinks the professors did wrong. But on its face, it seems like an extaordinarily serious academic freedom violation.
"Eligible" and Clinton as Vice-President: Apropos my post last week, I looked a little more into what "eligible" meant in 1804, when the Twelfth Amendment was enacted. I realize that this is far from perfect evidence -- it's 40 years later than the usage -- but the earliest law dictionary the library could find for me, Bouvier's (1843), defines "eligibility" as "capacity to be elected." (I take it that, by extension, for appointed offices it would mean "capacity to be appointed.") If that's how the term was understood in 1804, then Clinton would not be eligible to the office of President, and thus under the 12th Amendment not eligible to the office of Vice-President.

     Some mid- to late 1800s cases also define eligible as referring to "capacity of holding, as well as capacity of being elected to an office" (see Carson v. McPhetridge, 15 Ind. 331 (1860)); but that's in the context of saying that someone who isn't eligible to an office isn't capable either of holding the office or being elected to it. I've seen no evidence that, contrary to the Bouvier's definition, a person would have been seen in the early 1800s as being "eligible" to an office when he was legally barred from being elected or appointed to it, and the only question related to whether he could automatically assume it under some succession statute.

     I repeat the original post:
Readers Barry Jacobs and Charlie Martin point to this op-ed by Prof. Stephens Gillers (NYU) that argues that Bill Clinton can be elected Vice President:
The first objection, the constitutional one, can be disposed of easily. The Constitution does not prevent Mr. Clinton from running for vice president. The 22nd Amendment, which became effective in 1951, begins: "No person shall be elected to the office of the president more than twice."

No problem. Bill Clinton would be running for vice president, not president. Scholars and judges can debate how loosely constitutional language should be interpreted, but one need not be a strict constructionist to find this language clear beyond dispute. Bill Clinton cannot be elected president, but nothing stops him from being elected vice president.

True, if Mr. Clinton were vice president he would be in line for the presidency. But Mr. Clinton would succeed Mr. Kerry not by election, which the amendment forbids, but through Article II, Section 1 of the Constitution, which provides that if a president dies, resigns or is removed from office, his powers "shall devolve on the vice president." The 22nd Amendment would not prevent this succession.

So much for the constitutional obstacles. . . .
I'm pretty skeptical, though: The 12th Amendment, after all, says (among other things) that
[N]o person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
The 22nd Amendment prevents Clinton from being President, so therefore under the 12th he can't be Vice-President.

     Not so, says Jacobs: The 22nd Amendment says that "No person shall be elected to the office of the President more than twice," so it means Clinton isn't ineligible to the office of President, only to be elected President. (Article II, which sets forth the other qualifications for President, uses the phrase "eligible to the office of," not "eligible to be elected," so those qualifications would apply to the Vice President under the 12th Amendment.) But I don't think that defense of Gillers' point is quite right: I think that as a matter of common usage, "eligible" in the 12th Amendment should be interpreted as meaning "eligible in the ordinary course of things," not "eligible in a small subset of cases, though ineligible in the ordinary course of things."

     On the other hand, Gillers is a very smart and well-regarded professor -- perhaps he is correct on this, though at this point my tentative judgment (tentative largely because of my regard for him) is the contrary.

UPDATE: I e-mailed Prof. Gillers on this, and he was kind enough to promptly respond (even though he's just swamped, being a Vice Dean as well as a professor, and likely doesn't have time to deal with much such e-mail):
I admit that I should have addressed the 12th Am. point but I do not think it changes the argument.

The 12th Am. says: "But no person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States."

Its mention of eligibility is a reference to Article 2, which say a person is "eligible" to be president only if he or she is 35, a natural born citizen, and living 14 years in the U.S. Clinton is eligible under this test.

Under the later 22nd Am., Clinton is only constitutionally unable to be "elected" president. He is not ineligible to be president for these Article 2 reasons. If the drafters of the amendment wanted to block succession as a path to the presidency, they could have added the words "or vice-president" to the 22nd Am. or used some other exclusionary language.
I confess that I'd still come to the opposite conclusion, but obviously reasonable minds can and do differ on this.

FURTHER UPDATE: Reader Mark Eckenwiler writes:
Re "eligible," note that it is in fact synonymous with "electable": the two terms are derived from the same Latin verb. Lexicography confirms this sense, as in the 1913 Webster's definition: "1. That may be selected; proper or qualified to be chosen; legally qualified to be elected and to hold office."

So [in my humble opinion], Stephen Gillers . . . is incorrect when he asserts that Clinton is "eligible" to the office of VP.
This isn't an open-and-shut argument: The real original meaning question is how the word was actually used in legal sources around 1804, when the amendment was enacted, and dictionary definitions, especially from 1913, are only a first cut at this. Still, I do think that this evidence supports the Clinton-isn't-eligible view; and I suspect that in 1804 legal parlance, "eligible" really did mean pretty much what it does in that definition. But I leave it to others to do more exhaustive research.

ANOTHER UPDATE: Everything old is new again! Reader David Tenner quotes a similar debate in 1964, when there was talk of a Goldwater-Eisenhower ticket.

YET ONE MORE UPDATE: Marty Lederman reports that there's a whole law review article that deals with this, Peabody & Gant, The Twice and Future President, 83 Minn. L. Rev. 565 (1999), and that concludes that a two-term President may indeed then become Vice-President. If fully understanding this question requires me to read yet another law review article, I'll opt for not fully understanding it -- but people who are really interested should look it up.
Another inflation calculator, going back to 1800. Thanks to reader Kim Scarborough for the pointer.
On (libertarian and other) utopianism: Reason has been hosting a debate on "how to think about liberty," between Richard Epstein, Randy Barnett, David Friedman, and James Pinkerton. Some in the blogosphere think this is amusing. Belle just thinks the Barnett/Friedman varieties of anarcho-capitalism are loopy, which is fair enough; but she also thinks there's something objectionable about even looking that far ahead:

The flavor of this discussion is indescribable. In its total estrangement from our political and social life today, its wilfull disregard of all known facts about human nature, it resembles nothing so much as a debate over some fine procedural point of end-stage communism, after the state has withered away.

Similarly, Will Baude remarks:

We're so far from Libertarianism, so far from even moderate government-rollbacks, that practical-minded folks don't need to argue about this stuff at all.

Let me go out on a limb, though, and argue in favor of utopianism. First, let me quote Randy:

Of course, to some extent this debate is moot. If we ever get to a libertarian world in which these are the only forms of coercion still existing beyond self-defense, etc.,we will know a lot more about how liberty actually works and how to achieve it politically than we do now. We will be in a much better position to decide whether to abolish these practices along with all the other vestiges of the welfare state. I should live so long.

Why then debate them now? For the same reason Epstein has been harping on these points for decades. We debate the form of the ideal end stage as part of the debate over whether to take any further steps in its direction. Epstein clearly believes that a more sympathetic and defensible end state is one in which these additional exceptions for free riders and holdouts exist. On this, I have always had my doubts. . . .

The main argument for utopianism is similar to the argument in favor of thought experiments and hypotheticals in philosophy, along the lines of what do you do if you have no food in a lifeboat, or what if you sell yourself into slavery, or what if you find yourself on a runaway train that's about to run over five people but you can switch the tracks and only run over one person. These hypotheticals are totally unrealistic, but if you don't have an answer for them, it's unclear how coherent your answers are going to be in all the realistic cases. Thought experiments and hypotheticals are unrealistic because they strip away all the realistic elements which are, in fact, irrelevant to the case at hand.

Similarly, why worry about whether there's going to be taxation in the ideal libertarian society? Because in our day-to-day life, we have to make judgments about whether moderate step A is better than moderate step B. If moderate step A involves more of some sort of freedom but also involves more taxation, it would be helpful for a libertarian to know the moral status of taxation. Some libertarians think that any tax increase is an unqualified bad; other libertarians wouldn't object to some government-provided services as long as they were funded by user fees; and so on. Some of the questions in the debate -- is some eminent domain O.K.? -- even happens to be important today, since some libertarians are against any eminent domain, regardless of how useful the service is.

There's also an anti-libertarian argument in favor of libertarian utopianism. Many people spout slogans of any stripe because slogans sound good. "Taxation is theft" sounds great, and so does "A man's home is his castle." Also, "property is theft" and "from each according to his ability . . ." sound good on the surface. A lot of people will break down and embrace some sort of moderate politics if you push them hard enough and make them commit to their ideal world. Most utopias are pretty ugly if you force people to not just wish for a pony but also confront the real-world consequences of their utopianism.

O.K., you might now say, so the problem with the Reason debate isn't that it's utopian, but that some of the utopians there don't seem to have thought through real-world consequences. (This is, I think, the problem with much of the communist end-state utopianism that Belle refers to.) If so, it's clearly not Richard Epstein, who actually endorses taxation and eminent domain. It's not Randy Barnett, whose argument is explicitly "not so fast, let's cross that bridge when we come to it." James Pinkerton seems to entirely sidestep the utopian debate, focusing instead on foreign policy and other matters. David Friedman seems most vulnerable to the charge that his utopianism is out of touch with reality, because his vision of a stateless world of private rights enforcement seems implausible on the face of it; but read his work and you'll find a ton of real-world historical examples, and get him in a room and he'll give you a lot of good arguments.

In any case, that seems like hardly enough evidence to bash libertarian utopianism as a genre. Sure, don't spend too much time arguing about the libertarian end-state. Spend more time trying to prove the virtues of specific reforms and establishing alliances with non-libertarian groups that agree on those issues. And make sure your utopianism is grounded in reality -- not necessarily in the sense of whether your proposal can realistically be enacted, but in the sense of whether your predictions of what the world will look like are realistic. (I've had arguments with libertarians who believe that the U.S. won't be attacked if it unilaterally disarms, and that there won't be any crime in the ideal libertarian state. Now this is wishing for a pony.)

But some amount of theory is good, especially within a theory-based system like communism or libertarianism or Catholicism or Objectivism or what have you. And Reason already spends very little time on such debates -- you need to read Liberty to get them more often. If anyone has any more specific anti-utopian arguments, I'd be glad to hear them.

UPDATE: Clayton Cramer writes, a while ago (February 17) on why libertarian ideas haven't been that popular: (1) the unpopularity of theoretical systems in light of other, failed theoretical systems; (2) libertarian hostility toward religion (in my view, not an inherent critique, though one that tends to be true in practice); (3) various social conditions that need to be there for libertarian ideas to "work in a society" (a problematic claim); and (4) various substantive disagreements with the libertarian program. Point (1) is relevant to the merits of utopianism. Note that this is just an argument about why utopianism is unpopular -- not an argument about why utopianism is intellectually a good or bad idea.

UPDATE 2: Will Wilkinson has a good post on pony-talking. Will's discussion is similar in spirit to a comment I got from John Nye, who says the problem with much utopianism is that it ignores the problem of the second best, i.e. just because something is a step in the direction of the ideal doesn't mean it actually improves the world, so you should evaluate the small steps on their own merits. Nothing I disagree with in all this, and I think it's all roughly consistent with what I've said above.

I'll just add: imagining an ideal world doesn't necessarily mean that you actively judge small steps according to whether they get closer to the ideal world.

Imagining an ideal world serves various functions. One of these is testing your moral ideas (that is, your ideas of what "better" means) to see whether they're really so hot. (Take an ideal world I, a status quo Q, and a proposed slightly changed world B. You want to know whether I - B > I - Q (is B closer to the ideal than the status quo?), but this is the same as asking whether B < Q (is B better than the status quo?), which seems to moot the "ideal world" question. But what I'm saying is: you need to come up with, and refine, your concept of the what the "greater than" symbol means.)

Another function is (as Randy points out above) showing people that, if left to your own devices as czar, you would in fact address their concerns in some way (i.e., "how would you provide for X under libertarianism?").
Court records on the Internet: In re Estate of Engelhardt, 2004 WL 345941, a one-judge decision by a Ohio Probate Court judge, comes out solidly in favor of public access to such records. Hamilton County Probate Court apparently routinely puts all its records on the Internet (see, e.g., Engelhardt's will, which I quickly found by searching on the site). Representatives of Engelhardt's estate asked the court to take down records of their case, because "said records contain sensitive financial information," such as "bank account numbers and balances, stock and brokerage holdings and a CPA's evaluation of a closely held corporation." Publishing such records on the Net, they argued, puts people "at significant risk for theft and harm and infringes on their constitutional right of privacy." They agreed that under the Ohio Public Records Act the records had to be publicly available at the courthouse, but they wanted the documents to be removed from the Web.

     The judge disagreed: Once a court starts routinely putting records on the Internet "as an integral part of the normal operations of the public office," the judge held, the Ohio Public Records Act requires that the records be retained there (possibly with an exception for extremely private records, but the court just suggested that, and didn't go into details). The judge did not say that the Constitution, federal or state, requires that such records be published, but it did say that Ohio law so requires (though I'm not positive that the judge got that right), and that Ohio law certainly doesn't require the removal of the records when people object on privacy grounds.

     The judge also suggested that the Americans With Disabilities Act might bar such removal of records, on the theory that such removal would make it harder for people to access records when their disabilities prevent them from traveling to the courthouse; among other things, the court cited 28 CFR sec. 35.160(a),
A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others.
I express no opinion on whether the ADA indeed imposes such a mandate, either on courts generally, or on those that already regularly post their materials on the Web.

     As I mentioned, this is a one-judge decision, and isn't binding precedent anywhere -- I take it that another judge in that very county could reach the opposite result (though not in a lawsuit brought by the same parties). I don't know what appellate courts, whose decisions are binding precedent in their jurisdiction, and are more persuasive elsewhere as well, will likely do with this. But still, this one-judge decision might well prove influential, especially since this question hasn't been much discussed by other courts. And of course its reasoning affects not just probate records, but also state property tax records, filings in civil and criminal cases, and lots of other documents.
Need some help from people who know about the empirics of tort law: Does anyone know where I can find numbers, or credible estimates, on the total amount paid out by the tort system?

I don't mean "the cost of the tort system" in terms of products taken off the market or anything like that, just total tort payments. Ideally, this would even include the amounts paid out in settlements. Yes, I know, how do we know these numbers? Viscusi discusses liability insurance premiums in some of his work in the late 1980s or early 1990s, but I've been having trouble backing out a total number out of his statistics. Maybe I just haven't looked deeply enough.

Anyway, if anyone knows of a source that purports to discuss total tort system payouts, please let me know.
Martha Stewart and the anticooperative effect of law: Eric Rasmusen and Duncan Frissell make an interesting point about the false statements statute, 18 USC sec. 1001: Cases such as Martha Stewart's may discourage people (even innocent people) from talking to federal authorities at all, because they might fear that some error on their part may be characterized as a lie, and might thus mean criminal punishment. In some cases (though not in all), the person may conclude that the better course is just to say nothing. That may already often happen to witnesses who are themselves being investigated for a crime, since they are often advised to say nothing in any event. But 18 USC sec. 1001 risks also discouraging cooperation by people who are just seen as witnesses.

     It's hard to tell just how serious a problem this might be, and 18 USC sec. 1001 does indeed have potentially beneficial effects, too, since it may often encourage witnesses to tell the truth. But it's worth recognizing that the law can also encourage witnesses to say as little as possible, an "anticooperative effect" that might undermine the law's beneficial effect. I discuss this general problem in my Duties to Rescue and the Anticooperative Effects of Law -- but as Rasmusen and Frissell point out, the problem extends far beyond just duties to rescue.

     For much more on the legal issues raised by the Stewart case, include the 18 USC sec. 1001 issue, see Stephen Bainbridge's posts.
What next?
"A group is challenging the rule of chess which states that white moves first is racist; it just perpetuates the image that whites make moves and blacks have to adjust to it. How they plan to change the rule I don't know. I saw this on television. Who they would sue to have this changed is beyond me."

That is from Clay Whittaker, one of the youngest (serious) bloggers I have read. Here is one follow-up link, yes the story is true. Here is a spoof (I hope) of the fears.
NPR's Day to Day and Three Strikes: NPR's Day to Day had a segment on California's Three Strikes law this morning. Among other things, the segment spent some time on one major criticism of the law: that it allows a very long prison term (25 years to life) when the third strke is a relatively minor felony (the first two have to be serious or violent felonies). Thus, for instance (the segment said), Leandro Andrade was sentenced under Three Strikes for stealing some videotapes.

     Quite a reasonable criticism -- but might it have been more fair to also mention Andrade's earlier criminal history, which is what turned a relatively minor theft into a Third Strike? I realize that some people think that sentences should focus mostly on the crime of conviction, and not on past crimes; but the premise of Three Strikes (a premise adopted in some measure by many jurisdictions' sentencing schemes) is the opposite, and obviously lots of people agree with that premise. An objective presentation, it seems to me, should provide the factual underpinnings for both sides' arguments, rather than just focusing on the third strike.

     So since Day to Day wouldn't give you Andrade's criminal history, I will, quoting the Supreme Court (citations omitted):
Andrade has been in and out of state and federal prison since 1982. In January 1982, he was convicted of a misdemeanor theft offense and was sentenced to 6 days in jail with 12 months' probation. Andrade was arrested again in November 1982 for multiple counts of first-degree residential burglary. He pleaded guilty to at least three of those counts, and in April of the following year he was sentenced to 120 months in prison. In 1988, Andrade was convicted in federal court of "[t]ransportation of [m]arijuana," and was sentenced to eight years in federal prison. In 1990, he was convicted in state court for a misdemeanor petty theft offense and was ordered to serve 180 days in jail. In September 1990, Andrade was convicted again in federal court for the same felony of "[t]ransportation of [m]arijuana," and was sentenced to 2,191 days in federal prison. And in 1991, Andrade was arrested for a state parole violation -- escape from federal prison. He was paroled from the state penitentiary system in 1993.
(1993 was two years before he was arrested for his third strike.) Naturally, the radio show didn't have the time to give all the details; but surely it could have quickly summarized Andrade's criminal history -- perhaps with a phrase like "convicted, over a span of 13 years, of three felony residential burglaries, felony marijuana transportation, misdemeanor theft, and escape from federal prison."

     Might this information change some listeners' perception of the fairness of sentencing Andrade to 25 years to life? Others, of course, might well think that Andrade's sentence is still unfair -- for instance, Andrade's past crimes didn't seem to be violent (the burglaries were serious felonies, but apparently not violent ones, though of course many residential burglaries have the potential to turn violent if the home turns out to be occupied). But at least listeners would have been able to make their own decision, based on a balanced portrayal of the facts.
Justice Scalia and criminal defendants: At times, I've heard people express doubt that Justice Scalia's judicial principles -- chiefly a preference for clear rules and for interpreting the Constitution by focusing on its original meaning and on its traditional application -- ever helps supposedly traditionally liberal causes, such as the rights of criminal defendants. I've pointed before to many cases that should help dispel such doubts, and this morning brings another case (Crawford v. Washington) where Justice Scalia's opinion reverses a criminal conviction on Confrontation Clause grounds. Justice Scalia was joined by the four relatively liberal Justices and by Justices Kennedy and Thomas; the Chief Justice, joined by Justice O'Connor, disagreed (though they concurred in the judgment, they would have taken a generally less defendant-friendly position for cases such as this one).

     One can certainly disagree with Justice Scalia's results, his method, or his application of his own method; and the examples I give do not (because individual examples cannot) rebut the more sophisticated claim that Justice Scalia may vote for criminal defendants less often than a completely impartial application of his stated methods should suggest. But I do think that the cases do rebut any general assertion that "Scalia will always [vote / apply original meaning / craft formal rules] against criminal defendants" -- an assertion that I have too often heard people make.
Rockin' Book Tour This Week: Last week's visits to Chapman, UCLA, Pepperdine, USC, Loyola & USD were draining but very rewarding. The Restoring the Lost Constitution Rockin' Book Tour continues this week with three talks in Northern California:

Wednesday 3/10:
Hastings law school (3:40pm)
Thursday 3/11:
Stanford law school (noon)
Santa Clara law school (4:00pm BANNAN HALL 127)

As always, let me know you read the Conspiracy, as so many have already.

Full tour schedule is here .
Next week: Barnes & Noble @ BU and the Tulane College Senate Lecture in New Orleans.
The Martha Stewart case: Who better to read on this topic than Professor Bainbridge? His bottom line:
"Martha Stewart was convicted on all counts. Longtime readers know that my take on the Stewart case was as follows: (1) The securities fraud count was bogus. The judge agreed and threw that one out. (2) The obstruction and false statement were proper in a hyper-technical sense, but should not have been brought as a matter of prosecutorial discretion. Obviously, the jury thought hypertechnicalities sufficed."

Here is the full post, with links to his previous archive on the topic.
Who knows the EU rulebook?
"Less than two months before 10 new member states join the European Union, it has emerged that about half have failed to translate the EU's 85,000-page rulebook into their national languages.

The embarrassing disclosure could have serious legal consequences, because EU laws are only enforceable in the new member states when written in the national tongue."

Hat tip to Daniel Drezner.

Sunday, March 7, 2004

The French Mind: I've been on a bit of a Roman poet/philosopher kick the last year or so, and I was leafing through a biography of Seneca, the great Roman philosopher, by Paul Veyne, Professor of Classics at the College de France in Paris. I came across this little gem: Veyne describes the the "modernity" of Seneca's writing style in the latter's Dialogues: "short, clear, penetrating, telling sentences that can make difficult questions accessible by means of a sudden metaphor." And then: "Despite his clarity, Seneca still must be taken seriously as a philosopher." !!! That "despite his clarity" sort of sums it all up, no?
Sunday Song Lyric: I was surprised how many readers were unaware of Danny Elfman's libertarian leanings. Of course, no discussion of libertarian-leaning bands could be complete without mention of Rush. The Canadian power trio, about to embark on its 30thanniversary tour, is arguably the most prominent libertarian band of all time. Rush dedicated an album, 2112, to "the genius of Ayn Rand." and penned such liberty-themed anthems as "Freewill," and this week's Sunday Song Lyric, "The Trees." When I was younger, and into such music, I was struck by the song's explicitly anti-egalitarian message.
There is trouble with the trees,
For the maples want more sunlight
And the oaks ignore their pleas.

The trouble with the maples,
(And they're quite convinced they're right)
They say the oaks are just too lofty
And they grab up all the light.
But the oaks can't help their feelings
If they like the way they're made.
And they wonder why the maples
Can't be happy in their shade.

There is trouble in the forest,
And the creatures all have fled,
As the maples scream "Oppression!"
And the oaks just shake their heads.

So the maples formed a union
And demanded equal rights.
"The oaks are just too greedy;
We will make them give us light."
Now there's no more oak oppression,
For they passed a noble law,
And the trees are all kept equal
By hatchet, axe, and saw.
UPDATE: More here.