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Saturday, December 4, 2004

Steve Martin

sets the record straight.

Freedom of the press = Freedom to publish.--

I finally got around to reading Eugene's NY Times op-ed and the odd response to it by Terence Blacker in the Independent (see Eugene's post on this).

I am not an expert on the First Amendment (as Eugene is). But I found the Independent's argument unpersuasive and questionable in a way that suggests why people need to look beyond mainstream sources such as the Independent to figure out the merits and scope of any First Amendment prvilege.

Terence Blacker in the Independent:

It was unsurprising to read in The New York Times this week an article by a man with a successful weblog in which he argued that we are all journalists now, that privilege under the law should apply to the humblest blogger as it does to someone working for the national media.

What some people seem to forget is that "the press" is only a metaphor for journalism. By giving freedom of the press as well as freedom of speech, the probable "intent" of the framers of the First Amendment and their probable "public meaning" was to recognize the freedom to publish without prior restraint and with broad (though not absolute) protection against later suit or punishment. If I'm right, then the "press" phrase of the First Amendment doesn't give more rights to journalists than to any other profession or sort of people who publish. It provides protection for whoever uses a publishing press, not a protection for a profession, like journalism. (To the extent that any states deviate from this basic First Amendment approach by privileging journalists only, they are acting unwisely in my opinion and contrary to the idea of the First Amendment.)

If we can now publish online for marginal costs that approach zero, then we all share in that freedom of the press (i.e., the freedom to publish). It is the technology that leads to egalitarianism, not the first amendment theory, which in my opinion has always protected publishers, at least non-obscene ones.

Scott Burgess also has some comments.

Take Winston Churchill, perhaps the greatest public figure of the 20th century. A Winston Churchill, writing extensively in his bathtub (as he often did), should receive no more protection from the First Amendment than political or academic bloggers writing in their pajamas or in their bathrooms, as recent critics of blogs have pejoratively asserted.

Of course, Eugene and I are not Churchills, but then neither is Mr. Blacker.

Related Posts (on one page):

  1. Freedom of the press = Freedom to publish.--
  2. Volokh the Crazed Egalitarian:
  3. My Thoughts on a Journalist's Privilege,
Bubble Wrap:

Are you stressed out? This site may provide the relief you need. (Don't miss the manic mode.)

Using Evidence Obtained by Torture at Gitmo?: Over at Crooked Timber, Kieran is looking for an explanation of statements by Justice Department official Brian Boyle at a recent court hearing about the use of evidence obtained by torture. The press accounts I have seen suggest that the military is fine with using evidence obtained by torture against the Guantanamo detainees. Kieran suggests that this is "the latest effort by legal officials of the U.S. Government to get Americans to agree that the use of torture by the military is no big deal."

  I have some very tentative thoughts that might provide a bit of context. Not justification, mind you, but context. I make these points with some important caveats: I am no expert in the law surrounding torture, international law, or military law, and I haven't been following this case closely. If someone with more knowledge in this area sees an error, I would be delighted to post a correction. Still, my hope is that I can explain the picture a bit better than press reports have done.

  First, the law. No one actually knows what kind of U.S. constitutional rights the detainees at Guantanamo have, or, to the extent that there may be other sources of rights for them such as the Geneva Convention, whether those rights are binding in federal court. We know from the Supreme Court's decision last summer in Rasul v. Bush that the federal courts have jurisdiction to consider the question, but we just don't know what the answer is. Why is that? It's because there are surprisingly few opinions on the constitutional rights of non-citizen detainees outside the United States as a general matter, and those opinions that shed any light at all on the issue here — cases that plausibly might include United States v. Verdugo-Urquidez, Reid v. Covert, and Johnson v. Eisentrager — are generally too splintered, unsatisfying, factually different, and (in some cases) too dated to tell us a lot. No one really knows how the courts (and the Court) are going to answer these questions. If you take the Holmesian view that law consists of "prophecies of what the courts will do in fact", right now this area of law is a big question mark.

  Faced with that uncertainty, the Bush Administration has taken a minimalist approach. Although I haven't followed the latest Gitmo cases closely, my general impression is that they're not inclined to say that a detainee has a particular right unless a court affirmatively rules that this is so. This will strike some as a brave defense of an unpopular but correct constitutional position; others as a conventional lawyerly tactic; others as misguided and unreasonable; and still others as an egregious violation of human rights. Whatever your view both on the merits and on the tactics, this seems to be the pattern of the Administration's litigation positions.

  Boyle's comments follow from that position. As best I can tell from news reports — and I have to be extra cautious here, because the news reports I have seen don't provide a lot of details — the Guantanamo detainees in the case before Judge Leon have alleged that they have a constitutional right to be released because the evidence needed to justify detaining them was obtained by torture. Boyle responded with the minimalist position that as a matter of law, the detainees do not have the constitutional rights needed to trigger the remedy of release. He seemed to be saying that the constitutional minimum was reliability of the evidence, not the specific procedures that were used to obtain the evidence. Because on Boyle's view the detainees don't have those rights, the violations of those asserted rights cannot provide a remedy even assuming that the detainees have been tortured.

  What to make of this? I think the point is not that the U.S. government is trying to persuade people that torture by the military is "no big deal." Rather, the point is that — for better or worse — the Administration is taking a controversial litigation position about constitutional law and waiting for the courts to tell them that they're wrong. (Something that the courts have been doing pretty consistently, I might add.)

Friday, December 3, 2004

Blogging Break and Holiday Presents:

No more blogging for me for several weeks. I need to first finish planning and then actually go on my honeymoon. So Happy Hanukah, Merry Christmas, and Happy New Year to all Volokh Conspiracy readers.

And speaking of Hanukah and Christmas, don't forget that your friendly neighborhood Volokh Conspirators would be most grateful if you would consider purchasing our books as holiday presents for the bibliophiles in your life. (For that matter, your local library could also be the beneficiary of your good will.)

Link to: Barnett, Restoring the Lost Constitution: The Presumption of Liberty

Link to: Bernstein, You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Law

Link to: Cowen, Creative Destruction : How Globalization Is Changing the World's Cultures

Link to: Volokh, Academic Legal Writing: Law Review Articles, Student Notes, and Seminar Papers (a must-get for the law student on your list)

Volokh the Crazed Egalitarian:

The Daily Ablution quotes and critiques a column in The Independent (London) that criticizes various things, including bloggers. Referring to my New York Times article yesterday, the Independent column says:

The blurring between the expertise and experience of the professional and the enthusiasm of the amateur has become part of the culture. . . . The acme of amateur achievement is the weblog -- thoughts, opinions and news items broadcast by an individual and with a potential audience of millions. . . .

More and more Americans, it is now being said, will gather news and views from their favourite blogger, no matter how mad, ill-informed and right-wing, rather than from a newspaper or the news on television. . . .

It was unsurprising to read in The New York Times this week an article by a man with a successful weblog in which he argued that we are all journalists now, that privilege under the law should apply to the humblest blogger as it does to someone working for the national media.

The approach has a sort of crazed egalitarianism to it, but it also suggests that more than just knowledge flows from professionals and their institutions in the age of the Pro-Am. The checks and balances and disciplines that keep intolerance in check may also go. If that is what the new amateurism brings, you can start the revolution without me.

Me, a crazed egalitarian! Cool. But is it really that crazy to think that people who aren't "professional" journalists might actually be one of "[t]he checks and balances" that help keep professionals themselves -- and professionals' own occasional zones of intolerance, whether towards guns or towards President Bush or for that matter towards amateurs -- in check?

See the Ablution post for more, plus a link to the Independent article itself.

Thursday, December 2, 2004

De Long Wait for a Correction:

Brad DeLong has not only failed to apologize for writing a bogus, inaccurate post about me and this website, he hasn't even corrected the original post, even though his own readers corrected him in his comments section, and I forwarded him via email the correction I posted on this blog. So much for (at least certain) bloggers being more responsible about corrections than the MSM.

More (or Less?) than meets the eye to the Palestinian Violinist Story:

Meryl Yourish sends this link, which casts considerable doubt on the original story, especially given that the "eyewitness" didn't understand Arabic, the language in which the conversation between the soldier and the violinist took place.

UPDATE: Various readers have written in to tell me that it's standard practice at airports throughout the world to ask people carrying on instruments to play the instrument to show that it's real and not hiding a bomb. This led to problems for one reader who was bringing a cello to her daughter...

Related Posts (on one page):

  1. More (or Less?) than meets the eye to the Palestinian Violinist Story:
  2. Power Corrupts...:
Tribe blog update:

I am hearing from some readers that contrary to my previous report, the supposed new Tribe blog is in fact a fraud and not by Tribe. A credible source confirms that Tribe knows nothing about the blog. My apologies to Tribe and to VC readers.

"What We Won in Fallouja":

Max Boot writes about this in the L.A. Times.

As Cool As It Must Be

to get your first U.S. Supreme Court argument, I'm not sure that you want press coverage like this. (Link: SCOTUSBlog)

Does Dale Forbid the Solomon Amendment? Following my earlier post asking questions about the Third Circuit's Solomon Amendment ruling, several well-informed readers wrote in to say that my concerns were valid, but that the real problem was the Supreme Court's decision in Boy Scouts of America v. Dale. Under Dale, they argued, the First Amendment gives groups a right to say when complying with a neutral law is inconsistent with their speech; and under Dale, courts have little power to scrutinize whether that is in fact true. So, in Dale the Supreme Court deferred to the Boy Scout's claims that admitting an openly gay scoutmaster would interfere with their message; the First Amendment gave them a right to kick him out. In the case of the groups challenging the Solomon Amendment, the courts must defer to the law schools' claims that allowing military recruiting would interfere with their message of tolerance. According to the reasoning of Dale, the law schools have a constitutional right to kick out military recruiters.

  Whether this argument is persuasive depends largely on how we evaluate two kind of claims, and in particular how much we defer to two claims made by organizations alleging free association violations. The first issue is deference to an organizations's alleged First Amendment message; the second is deference to an organization's claims that complying with a particular law will interfere with that First Amendment message. The first kind of deference is relatively uncontroversial, I suspect. Under Dale, courts cannot too easily second-guess an organization's claim that it stands for a particular message. Courts cannot be too eager to unmask the Boy Scouts as an organization that isn't really committed to exluding gay scoutmasters; similarly, they can't easily dismiss the law schools' claims that they are committed to non-discrimination. Courts have to take these claims at face value so long as they have some plausible support.

  The trickier and more interesting question is how much deference a court must give to an organization's claim that complying with the law would interfere with its message. Defenders of the Third Circuit's decision can point to this line from Dale:
As we give deference to an association's assertions regarding the nature of its expression, we must also give deference to an association's view of what would impair its expression.
The question is, how much deference? Here is how the Supreme Court analyzed the issue in Dale:
[The fact that we must give deference] is not to say that an expressive association can erect a shield against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message. But here Dale, by his own admission, is one of a group of gay Scouts who have "become leaders in their community and are open and honest about their sexual orientation." App. 11. Dale was the copresident of a gay and lesbian organization at college and remains a gay rights activist. Dale's presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.
I read this passage in Dale to say that a Court must give some deference to an association's view of what would impair its expression, but that the deference cannot be total: ultimately, the question of whether the association's view receives constitutional backing is something for the court to decide, not the organization.

  How does this apply to the Solomon Amendment case? My own sense is that forcing a law school to allow military recruiters on campus one or two days a year is quite different from forcing a group that sees homosexuality as bad to keep a gay rights activist as a scoutmaster. Why the difference? In the Boy Scouts case, it seems plausible that membership was the message. Most groups are run by their members; the members determine the group's message. If a group can't control its members, then it may be unable to control its message. Imagine if people opposed to gay rights decided to join gay rights organizations en masse and coopt them from the inside, electing their own as leaders. If this were to happen, the inability to exclude those hostile to gay rights would make it difficult for a pro-gay rights organization to exist. Granted, I'm not sure something like this was a realistic fear in Dale; it seems quite unlikely that the Boy Scouts were about to be overrun by gay rights activists. Still, regulating membership does seem to have a pretty direct connection to regulating expression. If a court wants to defer to a group's sense of when it needs to exclude to maintain its message, Dale seems at least a reasonable (although not obviously correct) case in which to do it.

  There doesn't seem to be a similar connection in the Solomon Amendment case. Allowing military recruiters on campus for a few days a year doesn't seem to make it any harder for the law schools to express their opposition to the military's hiring practices. If anything, the presence of military organizations on campus a few days a year for recruiting creates an opportunity for law schools to make their hostility to the military policies crystal clear. The visit would seem to create a catalyst for expression, not put the brakes on it.

  As best I can tell, the law schools' argument for why it couldn't express its message if it allowed military recruiters on campus was as follows:
[J]ust as "Dale's presence in the Boy Scouts would, at the very least, force the organization to send a message, both to youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior," Dale, 530 U.S. at 653, the presence of military recruiters "would, at the very least, force the law schools to send a message," both to students and the legal community, that the law schools "accept" employment discrimination "as a legitimate form of behavior."
If I'm not mistaken, there is a subtle switch going on here. In Dale, "accepting" something as "legitimate" referred to expressing the viewpoint that it was good. It related directly to the Boy Scouts' speech, and its expression of views relating to homosexuality. As used in the Solomon Amendment case, however, "accepting" something as "legitimate" seems to mean only "recognizing that it is existing law." Or perhaps it means "recognizing that it is a legally binding rule not worth suffering the consequences that would follow from violating it." Either way, the acceptance does not seem to relate to speech. Compliance with a law does not imply personal approval of it. Being forced to allow military recruiters on campus won't lead anyone to think that law schools actually approve of military hiring practices. Given this, accepting the law school's claim at face value would seem to allow the law schools to "erect a shield against [complying with the law] simply by asserting that . . . [compliance] would impair its message," which Dale prohibits.

  In conclusion, the Solomon Amendment case does seem trickier than when I first looked into it. To the extent it's relevant — it's not, but some will think it is — I still disagree with the military's ban on service for gays and lesbians. At the same time, I continue to be rather puzzled by the Third Circuit's ruling; it seems to reflect a misapplication of Dale. Finally, thanks to VC readers Joe Landau and others for writing in with comments on my initial post.
Another legal titan enters the blogosphere:

Can you guess who? If nothing else, the opening message shows a great sense of humor.

Update: This "blog" appears to be fraudulent, and not sponsored by Tribe himself. My apologies to Tribe and VC readers.

You Can't Say That! Blurbs:

My publisher, the Cato Institute, has collected a nice group of blurbs about You Can't Say That!, mostly from reviews:

"Bernstein superbly navigates the rough waters of the statutory and case law that attempt to curb discriminatory practices by both public and private organizations. . . . Bernstein carefully leads readers through specific problem areas such as the threat to free expression in the workplace and to artistic freedom, the censoring of campus speech, interference with freedom of association, and diluting the autonomy of religious organizations. . . . A solid effort that deserves a wide readership. Highly recommended." —Choice

"David Bernstein is to be congratulated on so clearly, vividly, analytically, and accurately showing the seriousness of these new threats to free speech and civil liberties in the U.S. The Cato Institute also deserves credit for publishing the book since in Bernstein's words `authors who take politically incorrect positions . . . face a particularly difficult time finding publishers among leading trade presses.' Cato at least is still the land of the free and the home of the brave." —Economic Affairs

"Bernstein undertakes the task of showing, through argument and the compelling use of examples, that antidiscrimination laws, if they are not limited in scope, or if overzealously enforced, are a source of much greater social harm than the discrimination they are intended to prevent. Mr. Bernstein is equal to the task. His book is both well-researched and well-written. It will be as valuable to the serious scholar as it will be interesting and informative to the intelligent lay reader." —Law and Politics Book Review

"It's fashionable in some circles to say that political correctness is a myth, but it's not—and Bernstein offers proof, along with explanations of the harm that it's doing." —Glenn Reynolds, Instapundit.com

"[Bernstein's] book is several cuts above the ordinary entry in the PC wars, combining legal analysis with an easy-to-read style and merciful brevity." —Walter Olson, author of The Excuse Factory and editor of Overlawyered.com

"This excellent book demonstrates that, in case after case, `activists' for one cause or another have shown a willingness to trample on the rights of others." —National Review

"Bernstein shows that the use of antidiscrimination laws in ways that interfere with someone else's civil liberties is not isolated to a single part of the political spectrum. It is not only Democrats who are guilty of the abuse, but Republicans as well." —Accuracy in Academia

"You Can't Say That! does an excellent and methodical job of cataloguing the insanity of anti-discrimination run amok." —Washington Times

"If you're looking to start an argument, take this book to an ACLU meeting." —New York Post

"After reading Bernstein's account, one begins to wonder whether any private group can exclusively assemble without being targeted for discriminatory activity." —Campus

"An important study of the infringements on First Amendment freedoms by antidiscrimination laws." —Chronicles

"You Can't Say That! is a strong contribution to First Amendment scholarship and a reminder of why traditional rights remain as important as ever." —TownHall.com

"This is a persuasive, well-researched, thoughtful, and cutting-edge study. It deserves serious consideration by all friends of liberty, regardless of their political, ideological, or religious persuasions." —Engage

"[Bernstein] takes on a current issue, arguing forcefully that constitutional liberties are in danger." —Liberty

The Supreme Court's Refusal to Consider the Massachusetts Same-Sex Marriage Decision:

Reason Express writes:

It is difficult to tell exactly what message the U.S. Supreme Court sent by rejecting, without comment, a conservative challenge to the Massachusetts same-sex marriage experiment. Does the court want a better, clearer case to address the issue? Do the justices really want the states to hash it out amongst themselves? Do they need more action on the issue from Congress? Or is the Court simply stalling for time until a new chief justice is appointed?

There is little doubt that Chief Justice William Rehnquist is gravely ill with cancer, so the last theory may be the easiest one to swallow, at least at first. But the complaint itself was rather odd, essentially asking the Supreme Court to "save" Massachusetts residents from the Massachusetts high court.

With a possible state referendum on gay marriage a key topic for debate among Massachusetts state legislators, the Court may have concluded that Massachusetts was well on its way to saving itself.

There's actually no difficulty at all here. The U.S. Supreme Court has long made clear that it has no business second-guessing that decision, even if the Justices think the state court's interpretation of the state's own constitution or statutes is flat wrong.

The Court is only entitled to review state court rulings if a federal right is involved. (For instance, if the lower court decision rejected a claimed federal right to have the state recognize same-sex marriages, then the Court would have jurisdiction, though it probably wouldn't agree to hear the case unless there were a disagreement on this federal question among lower courts.) The only federal claim in this case is that the Massachusetts' decision so far departs from the proper interpretation of the state constitution that it violates the Guarantee Clause, which says "The United States shall guarantee to every State in this Union a Republican Form of Government." But, first, the Supreme Court has long taken the view that Guarantee Clause issues are nonjusticiable, which is to say not subject to review by the courts. And, second, even if the Court might want to reverse that position, it's highly unlikely to do it in order to start correcting state judges' misinterpretations of state law.

The Reason Express item is right in part -- the Justices think that if anyone is to correct the Massachusetts Supreme Judicial Court's decision, it's the Massachusetts voters. But whether the voters ultimately do decide to correct it or not is irrelevant. Longstanding and well-settled law makes clear that the Court needs to stay out of this.

The case could be as clear as possible; Congress could be unable to act; the Chief Justice could be in the best of health; but the Court still wouldn't reconsider a decision such as the Massachusetts one. And that's because, yes, the states are entitled to decide this particular question on their own, at least without the Supreme Court second-guessing them on how their own constitutions need to be interpreted. Lyle Denniston (in Slate) also has a good piece about this.

My Thoughts on a Journalist's Privilege,

with talk of Plame and blogs and more, are in this morning's New York Times, squeezed into 840 words.

Wednesday, December 1, 2004

Disability Law Blog:

The number and diversity of lawprof blogs continues to grow. The latest welcome addition is Disability Law, by lawprof Sam Bagenstos. (Link: Howard)

Judge Gettleman:

While the Question Presented series over at Underneath Their Robes promises lots of fluff, the latest installment is an exception. Judge Gettleman seems like a genuinely cool guy.

My Exchange With Ramesh Ponnuru in The Corner In the Corner on NRO, Ramesh Ponnuru responds to Jonathan Adler's column by asking:
Why should the analysis of whether criminalizing the medicinal use of marijuana is a legitimate federal power turn on whether a state government has taken a view of the matter? If I follow your argument correctly, the federal government doesn't have the power to prohibit medical marijuana--and it doesn't have that power in Alabama, which also prohibits it, any more than it has it in California, which does not. If the federal law were an exercise of a legitimate power, on the other hand, a state could hardly nullify it within its borders. So the federal prohibition either is or isn't within the federal government's constitutional powers. Aren't the state laws irrelevant to the question?
This is a good question, and one that took me some time to understand. For my answer, click here.
Pronouncing the Capital Letters: A couple of readers asked what I could possibly mean by saying that Supreme Court groupies pronounce the capital letter in "the Court." Of course, it's a bit of a joke, since naturally you can't literally pronounce the capital letter. I had thought it was a familiar joke, but I guess it's not, so here's a little explanation of what might be the truth behind the joke: Imagine people saying (1) "imagine the perspective of the creator" or (2) "imagine the perspective of the Creator." The second person might say it a little differently, maybe with slightly different facial expressions or intonations -- or, more figuratively still, the speaker and the listener might just have a common assumption that leads the listener to think of Creator rather than just creator. Hence the notion of figuratively pronouncing the capital letters.
Verve:

Going through a draft of my Child Custody and Speech Restrictions paper -- it's the one I should be working on now instead of blogging this -- I realized what it was missing: Verve. "Energy and enthusiasm in the expression of ideas . . . . Vitality; liveliness."

My writing was the usual lawyerese, flabby and clausy. The substance was getting there (though it still needs a lot of work), but it was missing vigor, concreteness, punch. So I've been doing Vervification Edits as part of my substantive editing passes. Let's see if I can put some zip in. If only the verve could flow off my fingers in the first place, rather than having to be laboriously added.

Value of the Mainstream Media: It's blogosphere-hip to question the value of the mainstream media, but it seems to me that this isn't the kind of value that most people expect CNN to deliver:
PR Meets Psy-Ops in War on Terror

  On the evening of Oct. 14, a young Marine spokesman near Fallouja appeared on CNN and made a dramatic announcement.
  "Troops crossed the line of departure," 1st Lt. Lyle Gilbert declared, using a common military expression signaling the start of a major campaign. "It's going to be a long night." CNN, which had been alerted to expect a major news development, reported that the long-awaited offensive to retake the Iraqi city of Fallouja had begun.
  In fact, the Fallouja offensive would not kick off for another three weeks. Gilbert's carefully worded announcement was an elaborate psychological operation — or "psy-op" — intended to dupe insurgents in Fallouja and allow U.S. commanders to see how guerrillas would react if they believed U.S. troops were entering the city, according to several Pentagon officials.
  . . .
  Officials at the Pentagon and other U.S. national security agencies said the CNN incident was not an isolated feint — the type used throughout history by armies to deceive their enemies — but part of a broad effort underway within the Bush administration to use information to its advantage in the war on terrorism.
Link: Drudge.
Adler on Importance to Federalism of Raich v. Ashcroft: The press correctly reported the fact that the questions directed towards me were pretty intense. Only one Justice from the "Federalist Five" evinced any awareness of the implications to the Court's so-called "Federalism Revolution" of reversing the Ninth Circuit's decision. This was Justice O'Connor in her tough questions to Paul Clement. (Interestingly, she asked me no questions that I recall. The full transcript of the entire hearing will be very interesting to read.) This does not mean that the other "federalist" Justices are unaware of the consequences, or that they will not appreciate them when decision time comes. But I truly believe that there is no way to rule for the government without essentially limiting Lopez and Morrison to their facts. There will never be another successful Commerce Clause challenge to a federal statute in the Courts of Appeals if the Supreme Court accepts EITHER of the government's two theories: (1) that the activity here is really economic so that Lopez/Morrison does not apply or (2) an exception for regulations of noneconomic activities as part of a broader regulatory scheme that could be undercut unless they are reached applies to this state identified and policed class of activities.

Professor Jonathan Adler has a nice explanation of the serious constitutional issues at stake in a column today on National Review Online entitled High Court High Anxiety: The Supreme Court's medical-marijuana case could send federalism up in smoke. Here is his conclusion:
Despite its apparent importance to drug warriors, Ashcroft v. Raich is not about medical marijuana or drug prohibition. Nor is it about the wisdom, or lack thereof, of allowing chronically ill individuals to smoke weed for medicinal purposes. Rather, it concerns the limits of federal power under the Constitution. Federalism does not play favorites. It limits the scope of federal power to pursue liberal and conservative ends alike. If a majority of the Court remembers this lesson, Angel Raich will get to keep her medicine. More important, the nation will keep the constitutional limits on federal power.
Off now to teach my last Contracts class of the semester.

PS: If you click on the picture I posted yesterday here, it opens on a larger format so you can actually see what Nina Totenberg looks like.
Free Culture:

For those of you who may be interested, a copy of my review (in Reason magazine) of Larry Lessig's most recent book ("Free Culture") is posted here.

Yale Outsmarts Harvard:

Michael Froomkin has the scoop.

Tuesday, November 30, 2004

SCOTUS.com:

"SCOTUS" is what some people call the Supreme Court Of The United States. (Some use POTUS for the President as well.) We see evidence of that in the name of SCOTUSBlog, a first-rate blog written by Supreme Court litigators, though in my experience the term "SCOTUS" is actually fairly rare among clerks and Supreme Court lawyers (who usually call it "the Court," pronouncing the capital C).

For some reason, I was just reminded today of the fact that (1) in 2001, while looking for the Supreme Court site, I foolishly went to scotus.com, rather than supremecourtus.gov, and (2) the Internet Wayback Machine can largely reproduce the mildly amusing item I found there, though unfortunately the photos (nude, but they would have been work-safe) are missing.

Third Circuit mass recusal:

Howard Bashman (How Appealing) notes, apropos a Solomon Amendment case, that "In the Third Circuit, however, rehearing en banc is not available if a majority of the judges in regular active service is recused from hearing a case. A notice enclosed with the copy of yesterday's Third Circuit ruling that the court sent to me by mail indicates that a majority of the Third Circuit's active judges is recused from the case." Therefore, while I predicted that the case would go to the U.S. Supreme Court if the Third Circuit doesn't rehear it en banc, it sounds like I need to get rid of that "if" clause. Howard agrees:

Often the U.S. Supreme Court will refrain from hearing cases that involve the grant or denial of a preliminary injunction, because that relief will be superseded once the trial court issues its final adjudication. In this instance, however, that usual reluctance may not exist, because yesterday's Third Circuit ruling leaves little doubt how the case must be resolved on the merits in the district court.

What's more, because the case holds unconstitutional the application of a federal statute, the U.S. Supreme Court is especially likely to review it. Just as the Court tends to want to review "splits," which is to say solid differences of opinion, among lower courts, so it tends to want to review splits between the legislative and executive branches on the one hand and the lower courts on the other.

By the way, if anyone has any well-informed thoughts about why so many Third Circuit judges recused themselves, please let me know.

UPDATE: Several people suggested that some of the judges may be on the Boards of Trustees (or, in some schools, Boards of Visitors) of some of the private schools involved in the litigation, or might possibly teach at those schools at adjunct professors. But at this point this is just speculation; I've seen no concrete evidence. I suppose it's also possible that some might have children at those schools; I take it that's why Justice Thomas recused himself from the Virginia Military Institute case -- I doubt that recusal would be strictly required in such a situation, but maybe some judges are erring on the side of caution there.

Merriam-Webster names "blog" as Word of the Year:

Here is the story.

The Folly of the International Court--Israel as Exemplar:

Details here.

Donor nations, including the U.S. [a reader points out that the official U.S. rationale is that it won't fund projects in the West Bank if the Palestinian Authority objects], are denying funds to Israel to build roads for Palestinians in the West Bank on the ground that the ICJ has declared Israel's fence and related West Bank policies to be illegal under international law. The post linked to above goes into detail on the relevant legal issues, but I'll point out another interesting fact: for all the Palestinians' complaints about the checkpoints, they (or at least their leaders, who lobbied strongly against the funding) would rather have the checkpoints than have Israel build a road system that would allow them to travel much more freely throughout the West Bank without creating a terrorism hazard for Israelis.

Power Corrupts...:

A friend sent me a link, which I can't find right now, to a story about Israeli soldiers forcing an Arab man at a West Bank checkpoint to play his violin. Given the history of terrorists hiding bombs in ambulances and other seemingly innocent locations, it's not surprising that the soldiers wanted to check on the violin, just as in the U.S. the TSA makes you turn on your laptop. Still, the soldiers apparently took gratuitous pleasure in this exercise of power, even ordering the man to "play something sad."

Unfortunately, there are many stories of abusive behavior at the checkpoints. Put a bunch of 19 year old men in a position where they have absolute power over other people, and some will inevitably abuse that power. The Israeli military can and should, however, do a better job of training and supervising its soldiers.

But let's also recall, as media stories on the issue never do, that the checkpoints only exist in their current form because of the need to prevent suicide bombing murders. Before the Palestinians began engaging in this "tactic," they could move more or less freely within the West Bank, Gaza, and even Israel. (Not to mention that Israel wouldn't even be occupying the West Bank anymore if Arafat had been willing to strike a deal in 2000.)

My (Israeli) wife notes that when (if) there is eventually a peace deal, the Palestinians will be a lot poorer in the long-term than they would have been had a deal been reached before the "Oslo War" was launched by the Palestinians in 2000. Israelis used to go to the West Bank to get good deal on car repair, food, and other items, and later to gamble in Jericho, and many Palestinians used to go to Israel to work. Few Israelis in the future will be willing to hire Palestinians (Thai or Bulgarian workers present much less risk to life and limb), and even fewer will be willing to shop in towns that were hotbeds of terrorism and mayhem.

UPDATE: In a rather uninformative release, the Israeli army reports that it investigated the violin incident, and concluded that the violinist played his violin voluntarily.

The Solomon Amendment and Catholic Legal Theory:

An interesting debate on the latter subject is ongoing at the Mirror of Justice blog.

Is Al-Qaeda a Paper Tiger?:

Kevin Drum collects some stories suggesting the answer may be "yes." I don't know what to make of these stories myself, but they seem worth passing on.

Another Victim of Arafat

My recent media column in the Rocky Mountain News examined the press's moral bankruptcy in its coverage of the death of the mass-murdering terrorist Yassir Arafat. A reader sent his own memories of one of Arafat's many crimes against humanity:

When I was living in Israel from 1977-78 Yasir Arafat sent a group of terrorists down from Southern Lebanon in a small boat. They landed north of Haifa and when they came ashore found a young American woman by the name of Gail Rubin. She was a nature photographer who had the misfortune of taking photographs in the area where Arafat's men beached their boat. (A beautiful collection of her photographs was published after her death under the title: Psalmist with a Camera). After extracting information from her about their location they murdered her and proceded to the coast highway. There they commandered a bus and drove down the highway, shooting at pedestrians and passing cars. When the Israeli army shot out the tires and stormed the bus the terrorists opened fire on the passengers. Gail Rubin and the others murdered that night were just a few of the victims of Yasir Arafat. As you pointed out in your piece on November 20 in the Rocky Mountain News, he was a man responsible for death of thousands of Jews and, because of the violence he fomented, of thousands of Palestinians as well. I agree with you that the news coverage about Arafat after his death was unbelievably distorted and cowardly.
Anti-terrorism, Pro-freedom County Music

What if The Weekly Standard were turned into country music songs? It would probably sound a lot like the music of Eric Free and the Freedom Band. The band sings catchy country numbers like "Saddam Insane" ("Saddam Insane, twisted brain, gotta say goodbye to his evil reign"), "There's No God in Old Bin Laden" ("they pretend it's their religion, but it's just the Devil's fun"), and "United We Stand" ("Evildoers invaded our land; they bombed our cities and slaughtered our friends. We'll win this war that they began"). Each song of this "New Patriot Music" can be downloaded from the group's website for 99 cents, and the website provides a short clip of every song, so you can decide if you like it.
Faculty Clubs and Churches: Bill Stuntz, one of the country's leading scholars of criminal law, has an interesting essay over at TechCentralStation on the similarities between law school faculties and churches. An excerpt:
  The past few months have seen a lot of talk about red and blue America, mostly by people on one side of the partisan divide who find the other side a mystery.
  It isn't a mystery to me, because I live on both sides. For the past twenty years, I've belonged to evangelical Protestant churches, the kind where George W. Bush rolled up huge majorities. And for the past eighteen years, I've worked in secular universities where one can hardly believe that Bush voters exist. Evangelical churches are red America at its reddest. And universities, especially the ones in New England (where I work now), are as blue as the bluest sky.
  . . .
  . . . Most of my Christian friends have no clue what goes on in faculty clubs. And my colleagues in faculty offices cannot imagine what happens in those evangelical churches on Sunday morning.
  In both cases, the truth is surprisingly attractive. And surprisingly similar: Churches and universities are the two twenty-first century American enterprises that care most about ideas, about language, and about understanding the world we live in, with all its beauty and ugliness. Nearly all older universities were founded as schools of theology: a telling fact. Another one is this: A large part of what goes on in those church buildings that dot the countryside is education — people reading hard texts, and trying to sort out what they mean.
Thanks to Mirror of Justice for the link.
Poll on Roe v. Wade:

From an AP story yesterday:

[An AP] poll found that 59 percent [of respondents] say Bush should choose a nominee who would uphold the 1973 Roe v. Wade decision that legalized abortion. . . . 31 percent, said they want a nominee who would overturn the decision . . . .

Sounds pretty striking (and I should note that it's important even given the substantial correction that I note below). But here's what the poll actually asked, courtesy of the ever-valuable PollingReport.com:

"As you may know, President Bush may have the opportunity to appoint several new justices to the U.S. Supreme Court during his second term. The 1973 Supreme Court ruling called Roe v. Wade made abortion in the first three months of pregnancy legal. Do you think President Bush should nominate Supreme Court justices who would uphold the Roe v. Wade decision, or nominate justices who would overturn the Roe v. Wade decision?"

But wait — Roe didn't just make abortion in the first three months of pregnancy legal. It also made it legal at any time before viability (limiting government regulation to that related to protecting "maternal health"); the Court said viability would be at about six or seven months (though over time, the line has moved up a bit, as the 1992 Casey decision recognized). I suspect that such months-four-to-six abortions would be considerably more controversial than ones in months one through three.

Now I should say the poll is still pretty significant, because it shows broad support for the constitutional protection of first-trimester abortions. But it doesn't show equal support for all aspects of Roe, especially its protection of second-trimester abortions. And while I realize that poll questions have to be kept simple, (1) I suspect that the polltakers shouldn't have oversimplified things this much — to the point of material inaccuracy — and (2) at least they should alert media organizations that the question contains this oversimplification.

And, of course, this is yet another reminder to be highly skeptical of media reports of surveys. Good thing that PollingReport.com now lets us check them more closely, though I suspect that no more than a tiny percentage of readers will ever check them this closely.

Incidentally, when will news organizations that post online stories actually start linking to the survey text?

UPDATE: Reader Paul N. points me to another poll, this one also on Pollingreport.com, done in January 2003:

"Thinking more generally: Do you think abortion should generally be legal or generally illegal during each of the following stages of pregnancy? How about [see below]?"
LegalIllegalDepends (volunteered)No Opinion
"In the first three months of pregnancy"66%29%3%2%
"In the second three months of pregnancy"25%68%4%3%
"In the last three months of pregnancy"10%84%4%2%
More evidence, I think, that "would uphold the 1973 Roe v. Wade decision" isn't the same as "would uphold a right to abortion in the first three months of pregnancy."

Note also that the question might also yield a different result if it were made clear that though "Roe v. Wade decision . . . legalized abortion" in 1973 — a few states, including California and New York had already legalized abortion, but throughout most of the nation it was largely illegal — overruling Roe wouldn't criminalize abortion as such, but would just leave the matter to the states (most of which would likely leave it legal in the first three months). But I'm not sure about that. I do strongly suspect, though, that describing Roe accurately, as protecting abortions in the first six months (or at least first five months, depending on where the viability line is drawn) rather than just in the first three months, would indeed yield a different result.

Of course, none of this goes to what the right answer should be, constitutionally, statutorily, or morally. I am speaking here only of misleading survey reports.

Florida pro-Bush Democrats:

Remember those allegations early this month (feels like ages ago, doesn't it?) that there was something fishy in some Florida counties' being reported as voting heavily pro-Bush when voter registration was heavily Democrat? It seemed to me that this was actually fishy only to those who hadn't heard of conservative Southern Democrats, but people definitely brought it up (see the linked post above for an example). Here's what John Fund in OpinionJournal's Political Diary has to say about the latest in this saga; entire item reprinted with permission:

Pith-Helmeted Reporters Meet Bush Voters

Two Miami Herald reporters got a real education in red-state thinking when they decided to check out the Internet conspiracy theories that George W. Bush had stolen Florida because several counties with overwhelmingly Democratic voter registration edges had voted Republican for president. As one blogger put it, "George W. Bush's vote tallies . . . are so statistically stunning that they border on the unbelievable."

Not after the Miami Herald scribes decided to actually drop in on three of the northern Florida counties whose vote totals were questioned. Sounding as if they were cultural anthropologists visiting an exotic tribe, reporters Meg Laughlin and David Kidwell first visited Union County, where over 75% of voters are Democrats. They physically recounted the ballots cast in this month's election and concluded the results accurately reflected Mr. Bush's reported 72% victory. Election Supervisor Babs Montpetit explained: "People here are fundamentalist Christians who work in the prisons. Do you think they're going to vote for the liberal senator from Massachusetts?"

Having absorbed that observation, the intrepid pair proceeded to next-door Suwannee County, immortalized in the famous Stephen Foster song. Election Supervisor Glenda Williams showed them the ballots, which the reporters noted validated Mr. Bush's 70% victory there. "Most people in this county are against abortion and gay marriage. So they voted for Bush," she explained.

The final stop on the team's cultural odyssey was Lafayette County, where 83% of voters claim to be Democrats. Here the reporters didn't have to wait long for an explanation as to why Mr. Bush won three-fourths of the vote. A billboard on the road proclaimed "There is life before birth" and a neighborhood was called "The Christian Village." After quickly recounting the county's ballots, the reporters headed back to the Jacksonville airport, noting that the roadway was lined with "Snoball stands, chicken farms and anti-abortion billboards."

The Herald's excursion into Florida's Bush Country may not have turned up any election scandals, but the concept appeals to me. Perhaps more big-city media outlets should send expeditionary forces into rural and exurban parts of their states and report on what people there are thinking. Then fewer of them might be surprised every two years.

Yeah, a bit snide, but pretty funny.

Pacers to Face Criminal Charges According to this report, both unruly fans and several players for the Indiana Pacers will face criminal charges for their conduct in the November 19 basketbrawl. The fan who threw a chair may be in the most serious trouble. Prosecutors say they are likely to file elony assault charges against him.

Insofar as any indictments against players focus on actions taken off the court, I think that they are justified. I do not think that local law enforcement should seek to prosecute players for any actions taken by players on the court, however. Nor would I be sympathetic to any tort suits filed by fans injured by players on the court. I feel this way for two reasons. First, I believe that fans who ventured onto the court during the fracas assumed the risk of injury. Second, I think that players could reasonably perceive Detroit fans coming onto the court as a threat. Therefore, they could argue that their actions against fans on the court were made in self-defense.

Meanwhile, it appears the Indian Pacers franchise could save over $7 million due to the extensive suspensions of Ron Artest and other players involved in the brawl.

Likudnik, One More Time:

Brad Delong writes:

I use the word "Likudnik" routinely to refer to those in American who support Likud, and who believe that the national security of the United States is advanced by feeding Likud's annexationist fantasies. I'm not an anti-semite. And I don't like being called one:

The Volokh Conspiracy - : ...the phrase "Likudnik" is gradually becoming a general anti-Semitic term for Jews whose opinions one doesn't like.... "Likudnik" has become a term of disapprobium analogous to the term "Uncle Tom" for non-left-wing blacks. Just like it's assumed that moderate, conservative, and libertarian blacks must not be thinking for themselves, but instead serving "the Man," so moderate, conservative, and libertarian Jews must be serving the interests of right-wing Israelis (the obvious difference is that left-wing culture values African American self-interest and nationalism, while left-wing culture values Jews and Judaism only to the extent they are put in the service of internationalism and humanist causes.)... Well, the Left (along with the Washington Post, which used the term in a major article attacking Bush Admnistration neonconservatives) has let this particular anti-Semitic genie out of the bottle...

Suggestions for what should replace the Volokh Conspiracy on my regular reading list?

One of his readers responds in the comments section:

Bernstein on the Volokh Conspiracy doesn't say that anyone who uses the term "likudnik" is an anti-semite. He says 'the phrase "Likudnik" is gradually becoming a general anti-Semitic term for Jews whose opinions one doesn't like.' Which is my general impression as well. It's becoming like calling someone a "cosmopolitan Jew," or an "oriental" or a "negro." These were once neutral terms, or even terms with positive connotations. But these terms' meaning has shifted and they are now pejorative.

If you don't believe this, I wouldn't claim that you're anti-semitic. I would guess, though, that you've been a little sheltered and haven't read much of the borderline-anti-semitic left. You probably haven't been receiving hate mail calling you a "likudnik monkey."

In the end, Bernstein says 'Let's start by having a moratorium on the term "Likudnik" to refer to anyone but actual, declared supporters of Likud (I'm actually a Shinuinik, if anything), and only when they are supporting or justifying a policy on Israel-related affairs.' This is almost the same as DeLong's position. And posters on this thread seem to agree that this is the legitimate use of the term. So, what's to object to in Bernstein's post?

Exactly.

Given the Brad either didn't bother to read the entire post, or didn't read it closely enough to comprehend it, but nevertheless felt compelled to comment on it, I hereby invite him to cease reading my posts so he no longer misrepresents what I write. He can still read the rest of the VC by using this link.

Monday, November 29, 2004

The Lying Study Appears to be Misdesigned.--

If the news accounts are correct, the new study distinguishing the brain scans of liars from truth-tellers has a serious design flaw that goes beyond the small sample size. Indeed, it is such an obvious flaw that I wonder whether the researchers really made it, or whether instead the reporters got the story wrong:

Faro and colleagues tested 10 volunteers. Six of them were asked to shoot a toy gun and then lie and say they didn't do it. Three others who watched told the truth about what happened. One volunteer dropped out of the study.

While giving their "testimony," the volunteers were hooked up both to a conventional polygraph and also had their brain activity imaged using fMRI, which used a strong magnet to provide a real-time picture of brain activity.

There were clear differences between the liars and the truth-tellers, Faro's team told a meeting in Chicago of the Radiological Society of North America.

"We found a total of seven areas of activation in the deception (group)," he said. "We found four areas of activity in the truth-telling arm."

Overall, it seemed to take more brain effort to tell the lie than to tell the truth, Faro found.

Lying caused activity in the frontal part of the brain --- the medial inferior and pre-central areas, as well as the hippocampus and middle temporal regions and the limbic areas. Some of these are involved in emotional responses, Faro said.

In experimental design it is elementary to match the experimental conditions as closely as possible. In very small studies, one should vary only one variable at a time (there are some designs that rotate several changes). Here the liars fired a gun while the truth-tellers passively watched someone else fire a gun. Then the people who shot the gun engaged more of their brains than the passive people who just watched. Not surprisingly, the more active gun-shooters engaged more active portions of their brains.

But the researchers concluded that the gun shooters engaged more of their brains, not because they fired guns, but because they lied. How can they tell? There is no basis in the news report to think that the experiment tested lying v. truth-telling as opposed to gun shooting v. passively watching. The two experiments are completely confounded.

As I said, this is such an obvious defect that I am skeptical that the news reporters have accurately reported the study.

To test how obvious the error is, I asked my daughter taking high school AP Statistics what is wrong with the study. Before finishing the reading the news article, she pointed out the sample size. When I said, "No, not that," it took her about 15 seconds to see the problem.

I hope that the news reports are the ones that are in error or that there is some independent reason to think that watchers engage as much of their brains as more active gun shooters.

UPDATE: Aha, just as I suspected. The error appears to be in the newspaper accounts rather than in the study itself. Thanks to a tip from "JustOneMinute," I see that there is an account online which says that they did vary who was lying and who told the truth. I would still like more details, but there is nothing obviously wrong in the research design described here:

The research group used 11 volunteers and asked six to shoot a toy gun with blank bullets. Five other participants did not shoot the gun.

In two experiments, both shooters and non-shooters were asked to alternately lie and tell the truth about their participation. Scientists then examined the individuals with fMRI, while simultaneously administering a polygraph exam. The polygraph tests measured blood pressure, respiration and changes in perspiration.

The team found that both fMRI and polygraph accurately identified cases where participants had lied about their involvement in the shooting.

Related Posts (on one page):

  1. The Lying Study Appears to be Misdesigned.--
  2. LIARS:
More on French Antiterrorism Laws:

For those interested in more background on why French antiterrorism laws are so harsh, this paper, The French Experience of Counter-Terrorism, by Brookings fellow Jeremy Shapiro and Benedicte Suzan of the Fondation Mediterraneenne d'Etudes Strategiques, seems to offer a pretty good starting point.

Back From DC: Just returned from DC. As I need to teach Contracts tomorrow morning (Frustration of Purposes and the Coronation Cases), I cannot blog now. Besides its late, and I am pretty drained. But I thought you might want to see me and Nina Totenberg (she's in red, I'm in brown).



Thanks to my many well wishers. Your words of encouragement were really appreciated.
Medical Marijuana Case--I hope she's Wrong:

I heard NPR's Nina Totenberg report on Raich v. Ashcroft this evening. She ended her segment by suggesting that "by the end of the argument, it wasn't clear that Barnett had even one vote for his position," or words to that effect. Solum's transcript of the argument suggests otherwise, and I think that Randy did a great job. Whether that will be enough to overcome the statist liberal obssession with ensuring that every aspect of human life may be regulated by the federal government (despite a profound lack of constitutional legitimacy for such a position), and the statist conservative obssession with making marijuana users into criminals, remains to be seen. I'm not optimistic, largely because I think that the Court tends to take cues from the political branches, and the conservatives Randy needs to win over aren't exactly getting the sort of strong limited-government signals from Republicans in Congress they were getting in 1995, when the Court began its so-called "federalism revolution" (hah!) in Lopez.

Solomon Amendment Case:

I'm pleased with the result of the Solomon Amendment case, allowing private universities to discriminate against military recruites. As those of you who are familiar with You Can't Say That! would guess, I think that the First Amendment right of expressive association protects private universities' ability to defy federal antidiscrimination laws when those laws interfere with the universities' ability to define the message they project to the world. However, the Third Circuit's opinion overlooks some mighty important issues, leaving the case susceptible to reversal.

First, the plaintiffs were not the law schools that objected to the Solomon Amendment, but individual law professors and membership organizations not affiliated with the law schools. It's as if the Boy Scouts of America v. Dale case had not been brought alumni associations, and organizations of Christian scouts not affiliated with the BSA. [Whoops, my mistake, I was confusing this case with another Solomon Amendment case. One of the organizations involved in this case is actually a consortium of law schools.] (This also seems like a good time to remind readers of the inconsistency of those law professors who strongly opposed giving the BSA an expressive association right to exclude gay scoutmasters, but became born-again believers in freedom of association when the Solomon Amendment case arose.)

Second, neither the majority nor the dissent bothers to mention the Supreme Court's decision in the Grove City College case. This case suggests that universities have a very limited, at best, First Amendment right to defy federal law when the law in question is enforced via the spending power rather than directly through regulatory power. The case is especially relevant because it was a Title IX case, and the Solomon Amendment was modeled after Title IX (for a discussion, click here). I happen to think that Grove City was wrongly decided on this issue, and that it's distinguishable, for reasons I explain in a slightly different context here. But the Third Circuit didn't bother to distinguish it.

LIARS:

I believe that the ability to scan people's brains to determine whether they are lying could transform much of the criminal and civil justice systems. A story today discusses a recent study that was able to distinguish when subjects were lying versus telling the truth. If this type of information turns out to be reliable and difficult to "beat" (contra polygraphs) it raises important questions for the legal system.

Questions About the Solomon Amendment Ruling:

While I disagree with the existing law banning gays and lesbians from military service, I find myself rather puzzled by today's ruling by the Third Circuit that the Defense Department cannot enforce the federal law withholding funds from schools that ban on-campus military recuiting (aka the Solomon Amendment).

  As I understand the ruling, the gist of the opinion is that forcing law schools to allow military recruiters on campus interferes with the schools' First Amendment right to express their opposition to current military hiring practices. Many law schools view those hiring practices as discriminatory because the military does does not allow openly gay individuals to serve. Judge Ambro analogized the case to Boy Scouts of America v. Dale, where the Supreme Court held that the Boy Scouts could not be barred from excluding an openly gay scoutmaster under the First Amendment if the Boy Scouts wanted to define themselves as an organization opposed to homosexuality. Ambro found the similarities between the Boy Scout's right to define itself by excluding a gay scoutmaster and the law schools' right to define themselves by excluding military recruiting to be "compelling." The basic argument is found on page 26 of the slip opininion:

  Just as the Boy Scouts believed that "homosexual conduct is inconsistent with the Scout Oath," id. at 652, the law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness. Just as the Boy Scouts maintained that "homosexuals do not provide a role model consistent with the expectations of Scouting families," id., the law schools maintain that military recruiters engaging in exclusionary hiring "do not provide a role model consistent with the expectations of," id., their students and the legal community. Just as the Boy Scouts endeavored to "inculcate [youth] with the Boy Scouts' values—both expressively and by example," id. at 649-50, the law schools endeavor to "inculcate" their students with their chosen values by expression and example in the promulgation and enforcement of their nondiscrimination policies. FAIR Br. at 22-25. And just as "Dale's presence in the Boy Scouts would, at the very least, force the organization to send a message, both to youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior," Dale, 530 U.S. at 653, the presence of military recruiters "would, at the very least, force the law schools to send a message," both to students and the legal community, that the law schools "accept" employment discrimination "as a legitimate form of behavior." Id.

  I am generally reluctant to wade into areas of law that I don't study closely — especially when they touch on hot-button isssues like gay rights — so I will make an amateurish observation and then let First Amendment experts explain why I am wrong. Here's the amateurish observation: Doesn't this comparison overlook the difference between (a) government regulation forcing you to express a set of views, and (b) government regulation forcing you to do something you really don't want to do?

  As I understand the positions of the law schools in this case, their expressive arguments are based on the fact that they really don't want to allow military recruiters on campus. This is a First Amendment problem, the thinking goes, because law schools as institutions are defined by what they do. Allowing military recruiters would be inconsistent with their commitments; would not provide models that they approve of; would not inculcate their chosen values; and would send the message that they acccept the law as "legitimate." In effect, forcing law schools to do what they don't want to do denies them a right to be the organizations they want to be, violating the First Amendment.

  Assuming I haven't grievously misstated the law schools' argument — a big assumption, perhaps — isn't this argument rather problematic? People and groups are free to define themselves based on any set of views. But the right to have a set of views does not imply a right to disobey laws that you find abhorrent. For example, if I decide to devote my life to spreading the message of opposition to the federal income tax, I still have to pay my federal income taxes. I may feel that paying taxes is inconsistent with the message I want to spread; that it would not provide people with a good role model; that would it would not inculcate my chosen values; and that it would send a message that the income tax is "legitimate." But I still have to pay my taxes. Why is this case different?

  My apologies in advance if I am misrepresenting the arguments of the parties or the Court, or if I am missing something obvious. Also, my thanks in advance for any thoughtful responses. (BTW, I realize that the argument above is one of at least two alternative arguments in support of the panel's ruling; I have focused on it because it seems to be the primary argument accepted by the panel.)

More on the medical marijuana case,

from SCOTUSBlog, here and here.

Solum's detailed account of the Raich argument.--

As our blogfather Eugene notes, Larry Solum has an amazingly detailed account of the argument in Raich, paraphrasing the main moves. It appears that both sides of the argument did well, but (if Solum's account is accurate) Randy Barnett did brilliantly (with the harder side). Here is the most interesting exchange for me:

Souter: Suppose that 100,000 people are in chemotherapy in California. Then couldn't there be 100,000 users of medical marijuana?

Barnett: There could be.

Souter: If there are 34 million people in California, then there could be 100,000 people in chemotherapy.

Barnett: It is important to remember that the law confines medical cannabis use to the people who are sick and have a physicians recommendation. Wickard v. Filburn's aggregation principle does not apply if the activity involved is noneconomic.

Souter: But isn't the argument that it is economic activity if it has a sizeable effect on the market?

Barnett: No. The effect on the market is only relevant if it is market activity.

Souter: But in Lopez wasn't the effect on the market much more remote than the effect involved in this case?

Barnett: The point is that economic activity and personal liberty are two different categories.

Souter: That is not a very realistic premise.

Barnett: The premise is that it is possible to differentiate economic activity from personal activity. Prostitution is economic activity, and there may be some cross substitution effects between prostitution and sex within marriage, but that does not make sex within marriage economic activity. You look at the nature of the activity to determine whether or not it is economic.

Breyer: If marijuana is medically helpful, can't your clients go to the FDA and get it rescheduled. Then if the FDA rules against them, they can go to court and the FDA ruling can be reviewed for abuse of discretion. And if there is no abuse of discretion, then wouldn't I believe as a judge and an individual that it is doubtful there is a medical benefit? Is medicine by regulation better than medicine by referendum?

RB: I would simply ask you to read the account of obstruction of research in the amicus brief and the Institute for Medicine report cited by both us and the government. It is true that marijuana is smoked, but that is because it saves the lives of some sick people.

As Solum notes, Barnett's marriage/prostitution analogy was particularly good. It's still a difficult case for the Court, but Randy's argument was strong enough that I now think the odds for his side are almost even (remember, however, that I was one of the sages who thought that Kerry would win). After I get a chance to talk with Barnett and Solum, I might revise this estimate.

Solomon Amendment:

The U.S. Court of Appeals for the Third Circuit has just issued a preliminary injunction prohibiting the government from enforcing the Solomon Amendment; the injunction lets law schools deny access to military recruiters — on the grounds that the miitary discriminates based on sexual orientation in violation of the law schools' policies — without fear of the loss of federal funds. The court's reasoning was generally that (1) the Amendment interfered with the law schools' right of expressive association, by forcing them to associate with a group whose very presence undermined the schools' expresion against sexual orientation discrimination, and (2) the Amendment mandated "compelled speech" by the law schools, by forcing them to use their property to carry speech (discriminatory recruiting) which they didn't want to carry.

I think the court was likely mistaken, for complicated reasons that I'm too swamped to go into right now. (I have an article draft due December 10, which is the main reason I've blogged a lot less than I usually do.) But I think this is an important case, and I predict that, if the Third Circuit doesn't hear it en banc (I have no prediction on whether it will or it won't, since I don't know how the Third Circuit operates), the U.S. government will ask the Supreme Court to hear the case, and the U.S. Supreme Court will agree to hear it.

UPDATE: It is a great honor to be compared with Pierre Fermat, even if the comparison focuses on our differences rather than our regrettably very small similarities.

Medical marijuana case:

Larry Solum has a detailed report of the oral argument.

Family lawyers who specialize in child custody:

For some perspective on an article that I'm writing -- thankfully, the purpose is purely theoretical -- I'd like to talk to some family lawyers who specialize in child custody. Any state will do. If you're inclined to chat briefly with me, either on the record or off the record, please drop me an e-mail and let me know.

I'd like a sense of how often you've come across cases where

  1. the judge considers a parent's political or religious ideology, and thus what the parent is likely to say in the future to the child, in making the "best interests" decision,

  2. the judge considers other speech that the parent has engaged in (or exposed the child to),

  3. (3) the judge issues an order barring one parent from saying certain things in the future.

I've seen quite a few published cases in which this happens, whether the order is "don't say bad things about the other parent," "don't teach religious views contrary to the custodial parent's" (such orders are allowed in some states but not in others), or something else. But I wanted to get a practitioner's sense of how these things may arise in ways that don't recorded in published decisions, what twists I should be looking for, how common these things tend to be, and so on. This is naturally not an attempt at a scientific survey -- I just want to see what factors I might be missing. Thanks!

The trouble with press accounts of Supreme Court cases:

I generally much like the work of AP Supreme Court reporters, who have to put out clear and terse copy in a very short time; but unfortunately this story illustrates the pitfalls of press accounts of Supreme Court cases. The story begins with:

The Supreme Court appeared hesitant Monday to endorse medical marijuana for patients who have a doctor's recommendation.

Justices are considering whether sick people in 11 states with medical marijuana laws can get around a federal ban on pot.

It then goes on for several paragraphs about whether marijuana is medically useful.

It's only in the 11th paragraph that the story mentions the specific legal question -- "The San Francisco-based 9th U.S. Circuit Court of Appeals had ruled against the government in a divided opinion that found federal prosecution of medical marijuana users is unconstitutional if the marijuana is not sold, transported across state lines or used for non-medicinal purposes" -- but then it returns again to arguments about whether marijuana bans are good or bad. Finally, in the 16th paragraph, the story does say "Alabama, Louisiana and Mississippi, conservative states that do not have medical marijuana laws, sided with the marijuana users on grounds that the federal government was trying to butt into state business of providing 'for the health, safety, welfare and morals of their citizens,'" which is the closest the story comes to stressing the state power vs. federal power issue involved here; but, I think, that's too little and too late.

Nowhere in its 19 paragraphs does the story clearly state the constitutional issue: Does regulation of private possession of marijuana (and private growing for personal use) exceed the federal government's powers, so that the Constitution leaves the question entirely to the states? I suspect that the typical reader of the story will come away with thinking "The Supreme Court is deciding whether medical marijuana should be banned" -- consider again the opening sentence, "The Supreme Court appeared hesitant Monday to endorse medical marijuana for patients who have a doctor's recommendation" -- rather than "The Supreme Court is deciding whether bans on private possession and growing of marijuana should be up to the states rather than to the federal government."

An account of the argument in Raich.--

Here is an early account of the oral argument in Raich. It sounds tough.

Nov. 29 (Bloomberg) — Several U.S. Supreme Court justices expressed doubts that states can let seriously ill patients ease their symptoms by using marijuana, a drug the federal government has designated as illegal.

[portions of original post deleted for copyright reasons] ...

Justice Antonin Scalia asked Barnett how his logic would apply to federal laws protecting endangered species. Those laws ban possession of ivory or eagle feathers without regard to whether a person obtained them through interstate commerce.

``Are those laws likewise unconstitutional?'' Scalia asked.

Other states that allow medical use of marijuana are Alaska, Colorado, Hawaii, Maine, Nevada, Oregon, Vermont and Washington, lawyers for the two women said in court papers.

. . .

The case is Ashcroft v. Raich, 03-1454.

UPDATE: Althouse links to an ABC account:

The Supreme Court appeared hesitant Monday to endorse medical marijuana for patients who have a doctor's recommendation.

[post revised with further omissions] ...

Justice Stephen Breyer said supporters of marijuana for the ill should take their fight to federal drug regulators before coming to the Supreme Court, and several justices repeatedly referred to America's drug addiction problems.

Dozens of people, some with blankets, camped outside the high court to hear justices debate the issue. Groups such as the Drug Free America Foundation fear a government loss will undermine campaigns against addictive drugs.

The high court heard arguments in the case of Angel Raich, who tried dozens of prescription medicines to ease the pain of a brain tumor and other illnesses before she turned to pot.

Supporters of Raich and another ill woman who filed a lawsuit after her California home was raided by federal agents argue that people with the AIDS virus, cancer and other diseases should be able to grow and use marijuana.

Their attorney, Randy Barnett of Boston, told justices that his clients are law-abiding citizens who need marijuana to survive. Marijuana may have some side effects, he said, but seriously sick people are willing to take the chance.

Who was the First African-American President of a Major University?

The answer (as best I can tell) is below.

(Click here.)

Nobelist blogging:

The forthcoming Gary Becker / Richard Posner blog (no posts yet, but I'm told they're starting it up soon) leads me to ask: Is Becker the first Nobel Prize winner to start a regular blog? (See here for a potentially amusing quibble about Nobel Prizes in Economics, though it is ultimately pointless for our purposes here.) It seems to that the opportunity for the public to read relatively spontaneous, unintermediated, and bite-sized ruminations from a Nobel Prize winner is a pretty significant symbol of the value of blogs as a medium.

CrimProfBlog Profiles Bibas: CrimProfBlog has posted a profile of Iowa lawprof Stephanos Bibas, one of the (if not the) best young criminal law scholars teaching today. You can access copies of his terrific and plentiful legal scholarhip here.
Marijuana at Target:

Well, target.com at least claims to provide it, doubtless through one of their business partners (the joys of having relatively open search engines) — see here. Thanks to reader Max Motovilov (who credits [H]ard|OCP) for the pointer.

UPDATE: Readers tell me that the provider is amazon, which should give those who hadn't already guessed a sense for what is likely to actually be provided.

Sunday, November 28, 2004

Federalism For Liberals:

Weighing in on today's oral argument in Raich v. Ashcroft, the editorial page of The New York Times has balanced its contempt for the War on Drugs against its loathing of States' Rights and reached a middle ground: the Supreme Court should rule that Congress lacks the power to punish medical marijuana in this case, but "on narrow, fact-specific grounds . . . [that do not] diminish the federal government's ability to protect Americans from unsafe work conditions, pollution, discrimination and other harms."

George Will on Filibusters:

From his Newsweek column, brought to my attention via Howard:

  The filibuster is an important defense of minority rights, enabling democratic government to measure and respect not merely numbers but also intensity in public controversies. Filibusters enable intense minorities to slow the governmental juggernaut. Conservatives, who do not think government is sufficiently inhibited, should cherish this blocking mechanism. And someone should puncture Republicans' current triumphalism by reminding them that someday they will again be in the minority.

Odd thing to put in the News section:

This story -- listed first under today's "Top News Stories" in the State Journal-Register (the newspaper of Springfield, Illinois' capital), and published in the News section of the Chicago Sun-Times -- is basically a summary of the arguments of parents whose suits against gun manufacturers were dismissed by the Illinois Supreme Court last week. Not a paragraph explains the arguments of those on the other side.

NOTE: A google search reveals that Alphecca beat me to this story; hat tip to them.