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Saturday, March 5, 2005

Eye on the (Washington) Post:

You will find much more accurate coverage of many recent events involving Israel at EyeonthePost than at its target, the Washington Post. My favorite recent point: The Post consistently refers to Israel as "occupying" the West Bank and Gaza, though the only other sovereign countries to have recently held these lands, Jordan and Egypt, have disclaimed ownership. But Syria merely has a "presence" in the otherwise sovereign state of Lebanon.


"Rapist Too Important for Prison?"

So it seems, from this news account. "Judge Rayford Means . . . said he factored in McIntosh's important work with stroke victims and brain injuries, and sentenced McIntosh to a year of house arrest and 12 years' probation."

There is some uncertainty about the facts of the case, but the man did plead guilty to sexual assault and possession of a controlled substance (presumably the sodium pentobarbital that the man was accused of slipping the woman to knock her out). Seems quite troubling, if the news account is accurate.


Funny Prediction on the Ten Commandments Cases,

from lawprof Jack Balkin.


Being Super-Rich May Be Easy, but Being Merely Rich is Hard: That seems to be a favorite lesson taught by the folks at the New York Times. See this article today, and this article from last week.

Syrian Pullback to Bekaa Valley Prevents Search of That Area.--

Assad announced that he is pulling back Syrian troops to the Bekaa Valley in Lebanon. This entry from The Dream of Lebanon explains the stated reason for staying in Bekaa:

Assad Withdraws 12,000 Troops, Keeping 3,000 Behind as Bekaa Garrison

President Assad is expected to announce a major redeployment of the Syrian army in Lebanon in a speech at Syria's People's Council, or parliament, on Saturday, pulling out some 12,000 troops by March 23 and leaving behind a 3,000-strong garrison in the Bekaa Valley, the Beirut media reports.

Assad believes the March 23 deadline would enable him to fend off a potential storm at the Arab summit conference set for the same day in Algiers against Syria's 28-year-old breath-choking tutelage over Lebanon, media reports said.

The alibi for retaining the Bekaa garrison, complete with four mountaintop early warning systems, is to guard against an Israeli army flank attack on Damascus via Lebanon. Some Lebanese opposition leaders may go along with the Bekaa concept provided Syria's secret services are withdrawn altogether from every inch of Lebanon, reports said.

The local media is focusing enormous interest on the Assad speech Saturday afternoon, wondering whether he would make any reference to the withdrawal of secret service centers that are abundant in Beirut and other major Lebanese cities.

An Nahar said in a terse remark Saturday that residents of the Upper Metn district spotted movements by the Syrian troops stationed in the region. It did not elaborate.

The Turkish Weekly has a couple of quotations from Assad's speech:

Syrian President Bashar Al-Assad addressed the Syrian parliament this evening. As expected he vowed a `gradual withdrawal` but no timetable for the withdrawal was given.

Assad : `We have to act positively to the stability of Lebanon`

Assad defended the role of Syria for stability, and emphasized that the Syria has no interest in Lebanon. Syria's presence in Lebanon is just for the stability of the Lebanon and the region.

Assad says forces will withdraw to Bekaa Valley in E. Lebanon. He claimed they were already pulled back troops in 1999 when there was no pressure at all.

Assad: “We should not stay one day if consensus asks us to leave”

When I first heard that Syria was pulling out of Lebanon, I knew that Syria would still try to set up a puppet government, so there was a lot that would have to happen before Lebanon was free. But I also had a tangential thought that a pull-out might allow the US or some other reliable investigators to search the Bekaa Valley to see what the Iraqis may have shipped there before the Iraqi War. One of the claims that was made before the Iraqi War by the sometimes unreliable Debka.com was that WMDs were shipped to Syria. After the War, both US and coalition officials said that they tracked shipments to Syria, but could not know whether there were any WMDs in them.

For example, Coalition WMD inspector David Kay told the Telegraph on Jan. 24, 2004:

“We are not talking about a large stockpile of weapons. But we know from some of the interrogations of former Iraqi officials that a lot of material went to Syria before the war, including some components of Saddam’s WMD program. Precisely what went to Syria and what has happened to it, is a major issue that needs to be resolved.

Debka.com reported that one of the sites where WMDs were buried was the Bekaa Valley in Lebanon:

Indeed the US administration and its intelligence agencies, as well as Dr Kay, were all provided with Syrian maps marked with the coordinates of the secret weapons storage sites. The largest one is located at Qaratshuk at the heart of a desolate and unfrequented region edged with marshes, south of the Syrian town of Al Qamishli near the place where the Iraqi, Syrian and Turkish frontiers converge; smaller quantities are hidden in the vast plain between Al Qamishli and Az Zawr, and a third is under the ground of the Lebanese Beqaa Valley on the Syrian border.

Since the Syrian pullback is to the Bekaa Valley, I guess the Syrians will have a chance to cover their tracks (if their tracks need covering). We know that the WMDs existed in Iraq in 1998 because inspectors found them, and we know with reasonable certainty that there were no major stockpiles of WMDs in Iraq when the war started because we found only a few isolated WMDs in Iraq after the war. What we may never know is when they were removed or — what is more likely — destroyed.


Friday, March 4, 2005

Juveniles, the Death Penalty & Deterrence:

Justice Kennedy's majority opinion in Roper v. Simmons maintains that the deterrence argument for the death penalty apply with "lesser force" to juveniles. Kennedy writes: "it is unclear whether the death penalty has a significant or even measurable deterrent effect on juveniles," and notes that, as a general matter, "juveniles will be less susceptible to deterrence" than adults.

Interestingly enough, the facts of the case, as described in Kennedy's own opinion, suggest that criminal sanctions do have a potential deterrent effect on juveniles:

There is little doubt that Simmons was the instigator of the crime. Before its commission Simmons said he wanted to murder someone. In chilling, callous terms he talked about his plan, discussing it for the most part with two friends, Charles Benjamin and John Tessmer, then aged 15 and 16 respectively. Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could “get away with it” because they were minors. [Emphasis added.]

In other words, Simmons sought to induce other juveniles to participate in his crimes by telling them they need not fear criminal prosecution. This argument would have been unnecessary were his friends not deterred, at least in part, by such threats. From this proposition it is but a small step to assume that the severity of the criminal sanction -- death as opposed to a set jail term -- could have some deterrent effect on the margin. This does not mean that capital punishment for juveniles is a good idea, but it does suggest that Justice Kennedy may have been a bit too quick to dismiss the potential for deterrence. Indeed, his own recital of the facts should have raised a red flag on this point.


Martha Stewart: Who ever is doing public relations for Martha Stewart deserves every penny she is paying them. Law schools teach that the purposes of sending lawbreakers to jail are to deter wrongdoing and punish the wrongdoers. The press coverage of Martha Stewart's release from prison suggests a third purpose: humanizing celebrities, giving them some adversity to triumph over so they can make a stirring comeback and sell lots of home products.

  UPDATE: See also this post from Eric Muller.

  ANOTHER UPDATE: The Sunday New York Times will have a commentary in the Week in Review section very similar to this. You can see the online version here.

Ponnuru v. Goldstein - Part Tres:

The smackdown continues. The latest entries:

The entire exchange and supporting documentation will soon be available here, or at www.rameshponnuru.com.

For what it's worth, I thought the initial Ponnuru piece on Tribe cam up a bit short. Even accepting everything at face value, it hardly seemed like scholarly misconduct. At most it demonstrated that that Tribe engaged in a bit of puffery, so it hardly seemed worth all the space in National Review.

Without engaging in an extensive side-by-side comparison of all the documents and rejoinders, I think that Goldstein showed Ponnuru engaged in some slight misrepresentations of his own, but I don't think Tribe comes off scot-free either. I think a fair-minded reader could still conclude that Tribe exaggerated some points in his initial essay. Again, however, this hardly amounts to academic fraud.


PatriotDebates.com: Congress will be considering the sunsetting provisions of the USA Patriot Act later this year. In anticipation of the coming debate, the Standing Committee on Law and National Security of the American Bar Association has assembled a group of experts in this area to debate the merits of key sections of the Patriot Act (as well as other issues beyond the Patriot Act such as rules for detaining enemy combatants).

  The essays are all going to be posted at www.patriotdebates.com, although only some of the essays have been posted at this time. They also will be assembled into a book available for purchase directly from the ABA. Stewart Baker, chair of the Standing Committtee, describes the goal of Patriot Debates as presenting "a series of 'dueling essays' on all of the most controversial issues relating to USA PATRIOT Act, written by some of the finest legal thinkers on these topics." The list of participants includes Viet Dinh, Patricia Wald, John Yoo, David Cole, and a handful of others (including me). A bunch of the essays are already up on the current site, with more to come. My own essay on sections 209, 212, and 220 is available here.

  The Top Secret Handbook For New Volokh Conspirators recommends writing a bunch of posts over the next few weeks urging you to buy the ABA book (see page 283, footnote 97 in the Handbook). But I don't know why you would want to buy the book: all of the essays will be available online first at www.patriotdebates.com.

Thursday, March 3, 2005

Solomon Amendment and Moussaoui Petitions: How Appealing has posted the petition for certiorari and brief in opposition in the Moussaoui case from the Fourth Circuit, as well as the petition for certiorari in the Solomon Amendment case from the Third Circuit. These things can be hard to guess, but I think the Court will grant the petition in the Solomon Amendment case and deny the petition in Moussaoui.

  (For those who are not lawyers or don't follow the Supreme Court, a rough translation of that paragraph into English would be something like this: "The case of the alleged 20th 9/11 hijacker and the case involving military recruiting at law schools have reached the Supreme Court. I think the Supreme Court will agree to review the case involving military recruiting, but will decline to review the case involving the hijacker.")

My Column on Blogs

in the New Orleans Times-Picayune this morning. (I just love the name "Times-Picayune.")

I've been in New Orleans for a couple of days, by the way, visiting at Tulane Law School, giving several talks and much enjoying the time here (and not just the delicious food!).


Sending Us Posts to Read and Link to:

A reminder of our linking policy: If you want to send us a post or op-ed of yours that you think we might want to read and link to, please include both (a) the text of the post and (b) the URL of that particular post (also known as a permalink).

When we're working from home, often on slow connections, this makes it much easier for us to read the post -- and thus much likelier that we will read it and consider linking to it.

I suspect that many other bloggers have similar preferences to these. Sorry to be so demanding, but the volume of e-mail that we get has ended up requiring this. Thanks!


Puzzle:

Alice, who is in an Atlantic seaboard state (one of the states of the USA, that is) is talking on the phone to Bob, who is in a Pacific seaboard state (again, one of the states of the USA). "What time is there?," Alice says. Bob gives the correct time where he is. "Funny, it's the same time here," says Alice. How is that possible?

Thanks to Warren Usui for the problem.


When I First Read this profile in the New York Observer, I wondered if it was just a parody poking fun at the pretentiousness of Harvard graduates. But a link from The Corner suggests it's the real deal.

Whoops:

My post yesterday on harsh ridicule of religion in Australia contained an important error: The law that I criticize is a law in the state of Victoria (home of Melbourne, and roughly a quarter of Australians), not a federal law that covers all Australia. D'oh! My apologies for the error, and my thanks to readers Jarrod Weir and Peter Laverick for setting me straight.

My criticism of the law, however, still stands.


Friends in High Places:

A well known tactic in getting a good placement for a law review article is for the author to thank in the first footnote important friends and colleagues who read and commented on the piece. The message to student editors is, "you may know who I am, or anything about the subject matter, but this article must be important or these important people would not have bothered to read it." Thus, long lists of prominent scholars thanked in initial footnotes are rather common. I just noticed that one Professor as trumped her professional colleagues by thanking the Diety in her initial footnote: "I first give thanks to God for guiding me through to the completion of this Article." That's even better than Posner or Sunstein!

(BTW, it should be obvious that I'm being facetious; I'm sure the author was sincerely thanking God. For that matter, law review authors thank their friends out of courtesy, not simply because it looks important).


Smackdown Over Tribe:

Ramesh Ponnuru and Tom Goldstein continue to duke it out over whether Larry Tribe presented a fictional account of his argument in the Richmond Newspapers case. There's even a new blog (well, kinda) for the exchange.

Here's the rundown:

For those wanting even more, here's a link to Tribe's brief in Richmond Newspapers and here's a link to his allegedly fictional Green Bag article.

On whether there is any connection between Ponnuru's attack on Tribe and looming Supreme Court confirmation battles, a reader e-mail prompts me to offer this thought: There is no doubt that some on the Right have it out for Tribe due to his role in scuttling the 1987 nomination of then-Judge Robert Bork to the Supreme Court. That fight was extremely bitter, and some on the Right have never forgiven those who, in their view, were instrumental in defeating Bork's nomination.

In a related vein, I have often heard that one reason Walter Dellinger was never confirmed by the Senate as Solicitor General -- and served his time as "acting" SG -- was because his role in opposing Bork. I cannot verify the claim, but it would be further evidence that the scars from prior nomination battles run deep.


Baude on Roper on Foreign Law: Will Baude offers thoughts on the use and misuse of foreign law in Roper v. Simmons at The New Republic Online.

Be Careful What You Wish For:

One thing I noticed recently is the increasing sentiment among some American Jews in favor of "hate speech" restrictions, especially given the recent incidents of anti-Semitism at some universities. I just ran into that a couple of days ago on a Jewish academics' discussion list on which I'm a passive reader. The Australian decision that found harsh criticism of Islam illegal should, I think, be a reminder that hate speech bans can bite anyone.

Many people think such laws will ban criticism (which they think is hateful, and much of which may indeed be hateful) of their group. But they quickly discover that the laws easily spread, and soon spread to criticisms that you yourself may want to make — though of course you'll make such criticisms much more fairly and temperately, and naturally you're completely sure that a hostile judiciary will recognize this and find your speech to be different, right?

Justice Douglas put it well when dissenting from Beauharnais v. Illinois, a 1952 case that upheld a law that banned libels of races and religions (and that is fortunately widely believed to have been implicitly overruled):

Today a white man stands convicted for protesting in unseemly language against our decisions invalidating restrictive covenants. Tomorrow a negro will be hailed before a court for denouncing lynch law in heated terms. Farm laborers in the west who compete with field hands drifting up from Mexico; whites who feel the pressure of orientals; a minority which finds employment going to members of the dominant religious group — all of these are caught in the mesh of today’s decision.

Today you may want Aryan racists or Muslim radicals to be convicted for condemning Jews. Tomorrow a Christian will be haled before a court for denouncing Islam in heated terms. The next day someone with perfectly fair and sensible criticisms of Islam will be convicted because his views seem too radical or not sufficiently balanced for the judicial elites of the time.

Related Posts (on one page):

  1. Whoops:
  2. Be Careful What You Wish For:
  3. Harsh Criticism of Religion Made Illegal:

Not Quite the Same:

I think the Supreme Court's decision holding that the death penalty may not be imposed on killers who were 16 or 17 at the time of their crimes was unsound, for the reasons that Orin has noted here, and that Justice Scalia noted in dissent. I'm not sure what I think of the execution of such killers as a policy matter, but I think Justice Scalia is right that this is not unconstitutional.

Nonetheless, I'm not persuaded by the link that some readers have drawn between this and a point in yesterday's post about the killings of Muslim women by their families:

In many cases, fathers -- and sometimes even mothers -- single out their youngest son to do the killing, Boehmecke said, "because they know minors will get lighter sentences from German judges." . . . Currently, six boys are serving time in Berlin's juvenile prison for honor killings.

I think many would-be killers (and those who influence them) may be swayed by the possibility of relatively light sentences, especially if they are just several years (which is my tentative sense from the paragraph above). But I think few would-be killers, especially teenagers, would think "I won't commit this crime if there's a small chance I'll get the death penalty; but I will do it if all it means is that I'll get life without parole." The marginal difference in deterrent, I suspect, is pretty modest there -- whereas the marginal difference between several years in prison and many more years, which it sounds like is the situation in Germany, would be quite substantial.

This is my intuitive sense; I haven't read the studies, about which I hear conflicting things. Nonetheless, it's a pretty strong intuition. I don't think we're going to have many more honor killings (or other killings) by 17-year-olds as a result of this decision.

At the same time, I do agree on one point: I don't think the U.S. Constitution should be interpreted in light of the moral judgments of Germans or Englishmen (or perhaps more precisely the members of German or English legal elites), who may have very different cultural and moral assumptions about the propriety of punishment. That 20 American states endorse something strikes me as more significant for interpreting our Constitution (if present views are to be considered) than 50 to 100 foreign countries' endorsing something. (I say 50 to 100 rather than the full complement of 200+ because 50 to 100 is the upper limit of the number of countries that are democratic enough that we should see their "views" as anything other than the political judgments of the strongmen or cliques that run them.)


Wednesday, March 2, 2005

Robert Byrd, the Democrats' Crazy-Old-Uncle-in-the Attic

has come under fire from Jewish groups for comparing the Republicans' "nuclear option" threat regarding filibusters and judicial nominations to Nazi tactics.


Blood-Curdling:

This article on "honor killings" of Muslim women -- in Germany -- is generally shocking. There are many important points there, for instance:

One of the unsettling truths about Hatin's death and the plight of many Muslim women is that it took the comments of three Turkish boys and the outrage of a male school director to get people to notice. When the murder first happened, it sent no shock waves through the mainstream German press. It only became big news when a group of 14-year-old Turkish boys mocked Hatin during a class discussion at a school near the crime scene. One boy said, "She only had herself to blame," while another insisted, "She deserved what she got. The whore lived like a German." The enraged school director not only sent a letter home to parents, but also to teachers across Germany. The letter ignited a media fury. Less known, however, is that the letter also hit a nerve among educators. "Teachers from across the country wrote back saying they had had similar experiences," Boehmecke said. They reported Turkish boys taunting Turkish girls who don't wear headscarves as "German sluts." . . .

"People were afraid they would be called Nazis if they dared to bring up issues of human rights in the Turkish community," said Serap Cileli, a Turkish author and filmmaker who at 15 was forced into an arranged marriage. . . . She has written prodigiously about her experiences and now helps Turkish women escape oppressive families. For the greater part of a decade, however, Cileli was unable to find a publisher for her work. "Everything I wrote from 1994 to 1999 was rejected, even by newspapers," she said. "They told me I was writing about a minority issue and they were afraid of appearing racist." . . .

But this paragraph struck me as particularly troubling (thanks to InstaPundit for the pointer) -- "demented" (from the quote below) and "death cult" (from the comments of others) are apt terms:

In many cases, fathers -- and sometimes even mothers -- single out their youngest son to do the killing, Boehmecke said, "because they know minors will get lighter sentences from German judges." In some cases, these boys are revered by their community and fellow inmates as "honor heroes" -- a dementedly skewed status they carry with them for the rest of their lives. Currently, six boys are serving time in Berlin's juvenile prison for honor killings. "In a way, these boys are victims, too," she said. Sometimes they are forced to kill their favorite sister.


Lots of Interesting Stuff posted recently over at The Right Coast. Check it out.

SPEECHES TOMORROW IN NYC: Tomorrow, I will speaking on Ashcroft v. Raich at NYU law school at 12:15 p.m. Vanderbilt Hall (located at 40 Washington Square South) Room 204 (lunch will be provided) and at Columbia law school at 6:30pm (Greene Hall 104).

Justice Scalia Isn't Exactly A Model of jurisprudential consistency, but those trying to play "gotcha" with him have to do much better than this piece by William Saletan in Slate. Here is Saletan's first paragraph:
Dissenting from Tuesday's U.S. Supreme Court ruling on the execution of juveniles, Justice Antonin Scalia ridicules his colleagues for switching sides on the basis of "evolving standards." He calls the majority opinion a "mockery" for supposing that the Constitution's meaning "has changed over the past 15 years." It's an unfortunate complaint, because the justice most flagrantly guilty of changing his position on the moral responsibility of juveniles in the last 15 years is Antonin Scalia.
  What's the evidence that Justice Scalia has "switched sides"? It's this and only this: Justice Scalia voted to uphold both the juvenile death penalty (in Roper) and parental notification abortion statutes (in Hodgson v. Minnesota).

  According to Saletan, the juvenile death penalty and parental notification statutes involve opposite sides of the same basic issue: the moral responsibility of juveniles. As best I can tell, Saletan thinks that parental notification laws are premised on the absence of juvenile moral responsibility, while the juvenile death penalty is premised on its existence. To Saletan, you can't believe both are constitutional without "switching sides."

  To point out the obvious, though, the Supreme Court is not supposed to adopt abstract formulations on morality and then decide to strike down or uphold statutes based on whether a given statute happens to reflect that formulation. That's the whole point of Scalia's writings in both the death penalty and abortion contexts: the moral decisions belong to legislatures, Scalia argues, not the courts. You can agree or disagree with that, of course, but it seems quite odd to accuse him of being inconsistent in these cases.

  Thanks to Howard for the link.

Broad Readings of State Bill of Rights Provisions:

I mention below that state courts may read Bill of Rights provisions differently than the analogous federal provision is read. Sometimes the text clearly mandates this, in which case I take it that many advocates of judicial restraint wouldn't object. For instance, many state right to bear arms provisions explicitly secure an individual right to have arms for self-defense; whatever you think of the proper interpretation of the Second Amendment, state courts have to interpret those provisions as barring at least some gun controls. Likewise, some states, including California and Florida, have an expressly secured "right to privacy"; one may debate what that should mean, but one can't complain that the judges who enforce such a right to privacy under the state constitution are just making it up.

But what if the text is vague or ambiguous? Should people who fault the U.S. Supreme Court for reading federal Bill of Rights provisions too broadly -- especially when they strike down legislative enactments -- do the same as to the state supreme courts reading state Bill of Rights provisions too broadly?

The answer could of course be yes: One could argue that such state decisions illegitimately interfere with the democratic will, as expressed by the state legislature. One could also argue that such different interpretations may cause some confusion, and one could appeal to the U.S. Supreme Court's authority to argue that the state court's decision intepreting similar constitutional language is mistaken. (As I note below, state courts are legally entitled to interpret state provisions differently from similarly worded federal provisions, but critics may argue that those interpretations are erroneous, and may call on the U.S. Supreme Court Justices' authority to buttress those arguments.)

But here are three reasons why we should be less worried about state judges' broad readings of vague or ambiguous constitutional language -- I'm not saying "not worried at all," since some such readings may still be viewed as wrong for various reasons, but less worried, for instance if the case is close and there's a plausible argument that the state constitutional provision should indeed be read to restrict the state legislature:

  1. We often hear complaints about unelected judges imposing their views on the democratic process. But in many states (most, I think), state supreme court judges are elected, and can be voted out of office (though that rarely happens, and sometimes the system is set up to minimize the chances of that, for instance by barring contested races and only providing for a Yes or No vote, as in California). They may not be elected on a platform of imposing their own views on the law; but their election -- and possibility of electoral removal -- does, I think, give their decisions more democratic legitimacy.

  2. We also sometimes hear complaints about a state's law being invalidated by the will of those nine Justices in Washington, who may have very different views than the state's residents do. This cultural disconnect argument is a harder (though not impossible) argument to make against state supreme court Justices.

  3. A related argument is that when the U.S. Supreme Court invalidates a state law on Bill of Rights grounds, it sets the law in stone for the 50 states, and prevents useful state-by-state experimentation (with innovative police procedures, for instances). This argument doesn't apply to state supreme court decisions.

  4. Federal constitutional decisions are very hard to dislodge through the democratic process -- it (usually) takes a 2/3 vote in each house of Congress, and then the votes of 3/4 of the state legislatures. But state constitutional decisions can often be changed by a simple majority vote of the people (though that varies from state to state) preceded by a vote of the state Legislature (though sometimes that has to be a supermajority, or two successive majorities in successive sessions) or a citizens' petition with a suitable number of signatures. So if the state supreme court interprets a provision in a way that the people dislike, they can change it with less difficulty than they can as to the federal constitution.

Again, one can surely criticize state court decisions on various grounds, for instance that they are illogical, or inconsistent with the provision's text, original meaning, or historical interpretation. I have, for instance, criticized a Nevada Supreme Court's state constitutional decision related to taxes, and I don't agree with the Massachusetts Supreme Judicial Court's same-sex marriage decision, just to give two examples. And one even when the text is vague or ambiguous, one can argue that state courts should err on the side of giving the legislature more flexibility. But I do think that the four points cited above make this latter argument less persuasive (though don't by any means entirely defeat it) as to state constitutional decisions than it is as to federal constitutional decisions.


Rights Under State Constitutions Vs. Federal Constitutions:

Reader Robert Woolley writes:

Why did the Missouri Supreme Court, in the juvenile death-penalty case (State ex rel. Simmons v. Roper (112 S.W.3d 397)), invoke the federal 8th amendment, rather than using Missouri's own state constitutional provision of the same language?

The Missouri justices had to go through pages of rhetoric to explain its justification for concluding that the US Supreme Court "would" now overrule its own 1989 Stanford precedent. They happen to have guessed correctly, as it turned out, but I can't figure out why they did it that way. It seems like a politically and legally risky move, virtually inviting reversal, if they have guessed the higher court's mood incorrectly. And whether they guessed right or now, they were pretty clearly violating principles of how precedent should work. But had they decided the case on the Missouri constitution, the decision would be essentially immune from reversal by any federal court. The Missouri court clearly had that option, as evidenced by this footnote [20:] "Because the Eighth and Fourteenth Amendments afford Mr. Simmons relief, this Court need not reach Mr. Simmons' alternative argument that, even if his execution is not barred by the Eighth Amendment, it is barred by article 1, section 21 of the Missouri Constitution." In the face of a fairly recent, directly contradictory holding of the supreme court, why take the uphill, against-the-wind path, when they could by fiat interpret the state constitution to achieve the desired result, and be done with it, with much less hand-waving justification needed, and no chance of reversal?

I had the same question myself.

First, a bit of background: Recall that there are 51 Constitutions in the U.S. — one federal and 50 state (I set aside D.C. and the Territories). Each of them has a Bill of Rights.

When a state government is dealing with its citizens, it must follow both the federal Constitution and the state Constitution. It follows that the person litigating against the state can win if he can prevail under either the federal or the state provision. And state courts may interpret provisions of the state Bill of Rights more protectively than courts have interpreted the federal Bill of Rights, either because the provision's text or history is different, or just because they think the federal provision has been interpreted incorrectly, and they don't want to perpetuate that error in reading the state constitution.

What's more, the state's highest court (usually but not always called the state Supreme Court) is the ultimate expositor of the meaning of the state constitution. The U.S. Supreme Court may not reverse the state court's judgment on that question — it may not say "Well, you think your state constitution's Cruel and Unusual Punishment Clause means one thing, but we disagree, and we're higher than you are." As to the meaning of state constitutional provisions (and state statutes), the U.S. Supreme Court is not higher than the state supreme court; the U.S. Supreme Court may reverse state decisions when they violate someone else's federally secured rights, but not just because the Court disagrees with the interpretation of state law. In fact, many states have read state free speech provisions, freedom from search and seizure provisions, right to bear arms provisions, non-impairment of contracts provisions, and other provisions more broadly than similar federal provisions have been read.

With that background, on to the reader's question. I have two guesses (assuming that the state constitutional claim wasn't foreclosed either by the litigant's failure to properly raise it or by contrary state precedent — a fair assumption given the note the reader quotes):

  1. The Missouri Justices wanted to insulate their decision from revision by a state constitutional amendment. State voters can pretty easily revise state constitutional decisions, by simply enacting an amendment that modifies the underlying clause, for instance to say that "however, an execution shall not be considered Cruel or Unusual Punishment on the grounds of the person's age, if his or her age is 16 or above." The amendment wouldn't change the result in Simmons' case, but it would change the result for the future. Such amendments often (I don't know the Missouri rule) just require a majority vote of the voting public, and a majority in the state legislature (or some number of signatures from the public instead of the legislative majority).

  2. The Missouri Justices wanted to prompt the Court to revisit the case. Then, if the Court affirmed (as it did), they would have helped make a national rule. And if the Court reversed, then they might have been able to decide based on the Missouri Constitution on remand (though then their decision might be even less popular with Missouri voters, if Missouri voters worry about such things, because it would be a departure from an influential institution's very recently expressed views, not just the views that institution expressed a decade ago).

It's also possible that the Missouri Justices just turned to the federal constitution out of force of habit. Many lawyers don't think of raising state constitutional arguments — something I try to remedy for the future in my constitutional law classes — and some state supreme court Justices might have a similar mindset. But I doubt it; here it's pretty obvious that the Missouri Justices at least knew of the option. (If Missouri courts have recently done a good deal of state constitutional law, something that I don't know, then it would be even less plausible that they turned to the federal question reflexively.)


Tribe's Travails:

NRO's Ramesh Ponnuru thinks Harvard law professor Laurence Tribe of "falsifying as fact what was, in truth, fantasy" -- what Tribe himself has called the "cardinal sin" of scholarship. SCOTUSBlog's Tom Goldstein thinks Ponnuru has overstated the case. Goldstein further surmises that Ponnuru's article is evidence that "the battle lines for the next Supreme Court nomination are being drawn in frighteningly personal terms." As Tribe may be called upon to critique a conservative Bush nominee, Goldstein suggests, the Right is seeking to discredit him now. A SCOTUSBlog commenter has what I think is a more plausible explanation: "the basic dynamic of journalists on one side of the political spectrum being overly critical of intellectuals on the other side is pretty common." NRO and its ideological compatriots go after folks like Tribe, while liberal periodicals go after [insert name of prominent neoconservative here].

This isn't the first attack on Tribe. Back when there were a spate of stories about plagiarism at Harvard (see, e.g. here), The Weekly Standard's J. Bottum leveled this charge against Tribe as well. Prof. Tribe admitted a "failure to attribute some of the material The Weekly Standard identified," but many commentators thought the initial allegation was itself overblown. For myself, I think the Ogletree case was worse.


Roper v. Simmons and Evolving Standards of Decency: In Roper v. Simmons, yesterday's decision declaring the juvenile death penalty unconstitutional, the Supreme Court relied heavily on the fact that five states have gone from allowing the juvenile death penalty to banning it since the Court's 1989 decision in Stanford v. Kentucky:
  Five States that allowed the juvenile death penalty at the time of Stanford have abandoned it in the intervening 15 years — —four through legislative enactments and one through judicial decision. Streib, supra, at 5, 7; State v. Furman, 122 Wash. 2d 400, 858 P. 2d 1092 (1993) (en banc).
  Though less dramatic than the change from Penry to Atkins (“telling,” to borrow the word Atkins used to describe this difference, 536 U. S., at 315, n. 18), we still consider the change from Stanford to this case to be significant.
  As Xrlq points out, however, something important is missing from this analysis: a sense of whether the five states that changed their policy are states in which capital litigation is active or basically dormant. If the goal is to look for "evolving standards of decency" and find an "emerging national consensus," it is one thing to say that practices changed in five states; it is another to say that actual practices stayed the same, but that the law on the books in a few states changed. The difference matters because while most states allow capital punishment in theory, the actual practice of bringing capital cases and carrying out the sentences is heavily weighted in favor of a small number of states.

  I took a look at some statistics, and the stats seem to confirm my suspicion: the five states that moved to ban capital punishment for juveniles are states that have capital punishment on the books but rarely use those laws. While five states changed their laws on the books since 1989, it seems that actual practices since 1989 remained the same.

  Here are the stats I found. The juvenile death penalty has always been very rare in the United States; since the beginning of the republic, it has occurred on average about once a year. That rate has remained constant (at least in absolute terms) in the last twenty years: 22 juveniles have been executed in the last 20 years. Texas is responsible for 13 of those cases; Virginia for 3; Oklahoma 2; Georgia, South Carolina, Louisiana, Missouri each for 1. (stats on page 4 of the Streib report cited in the Roper opinion)

  The states that banned the juvenile death penalty since Stanford v. Kentucky are Washington (by the courts), and (I think, from page 7 of the Streib report). Kansas, New York, Montana, and Indiana. But Washington, Kansas, New York, Montana, and Indiana aren't states that have executed anyone for a juvenile crime at least in the last three decades — and indeed, I'm having trouble finding evidence that any of these states ever actually did so.

  More broadly, these five states are not active death penalty states even for adult crimes. Since the death penalty was reinstated in 1976, these five states have been responsible for 17 out of the 1,000 or so executions that have occurred — only about 2% of the total. 11 of the 17 executions were in just one state, Indiana. (The numbers, available here, are Washington - 4, Kansas - 0, New York - 0, Montana - 2, and Indiana - 11.) Notably, of the 4 states that abolished the juvenile death penalty by legislative decision, 2 of those don't actually have a functional death penalty for any defendant.

  If I understand the statistics correctly, the move to abolish the juvenile death penalty in five states since 1989 is essentially symbolic: none of those states have executed a juvenile in many decades, if ever, and the five states are mostly states that have capital punishment in theory but not in practice. If the "evolving standards of decency" inquiry of the Eighth Amendment focuses on actual practices, then there seems to be virtually no evidence of a changed standard since 1989.

Related Posts (on one page):

  1. Juveniles, the Death Penalty & Deterrence:
  2. Roper v. Simmons and Evolving Standards of Decency:
  3. Roper v. Simmons and Capital Litigation:

Harsh Criticism of Religion Made Illegal:

No, not by the mullahs; not by Ashcroft; rather, by the Parliament. of Victoria, the Australian state that's home of Melbourne and a quarter of all Australians. The Victoria Racial and Religious Tolerance Act of 2001 provides that "A person must not, on the ground of the religious belief or activity of another person or class of persons engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons."

There's a defense for people who, among other things, are "reasonably and in good faith" engaging in "genuine academic, artistic, religious or scientific" commentary, or otherwise acting "in the public interest." But the Victorian Civil and Administrative Tribunal held two months ago that this defense is available only to those who speak "reasonabl[y]" and who "honestly and conscientiously endeavour to have regard to and minimise the harm [the speech] . . . will . . . inflict," as opposed to "us[ing the freedom of speech] as a cover to offend, insult, humiliate or intimidate people."

Among other things, speech that isn't "a fair representation of [another group's] religious beliefs" is punishable, as is speech that fails to "distinguish between moderate and extremist" members of a religion. Likewise, the tribunal seemed particularly troubled by speech that "mock[s] what [members of a religious group believe," or "repeatly invoke[s] laughter from the audience when describing apparent [religious] beliefs." (Naturally, the decision and the statute give little guidance as to what exactly you can say in order that your comments be found "reasonable" and "fair.") The decision (Islamic Council of Victoria v Catch the Fire Ministries Inc) held some Christian speakers liable for harshly criticizing and mocking Islam — among other things, saying "that the Qur'an promotes violence, killing and looting," "that it treats women badly," "that Allah is not merciful and a thief's hand is cut off for stealing," and more. But of course, if the law is applied evenhandedly, it would equally apply to atheists criticizing religious people generally (think "religion is the opium of the masses" but with some more elaboration), or at least members of a particular religion. It would apply to people criticizing Catholicism for its supposed oppression of women or historical crimes. It would apply to people mocking beliefs like those of Catch the Fire Ministries, or harshly criticizing the Falwells and the Robertsons.

This is an awful position for a democracy to take. Religions are ideologies, and need to be subject to criticism like any other ideology — especially when the religions are motive forces for important political and moral movements. Some of this criticism will involve mockery, laughter, and severe ridicule; and ridiculing religious ideologies will naturally implicitly or explicitly ridicule people who hold those views, especially when the speaker gives examples of folly that the ideology supposedly causes. Yet if you take religion seriously, as a set of ideas that, if true, should affect people's lives, you have to accept the possibility that some religious ideas are false and harmful, and deserve harsh criticism and not just bland ecumenical toleration.

I would prefer that such criticisms be fair, polite, and measured; but it's impossible for the law to punish only the rude and excessive form without also punishing and deterring important content. John Stuart Mill dealt with all this a century and a half ago, and his position is as sound today as it was then.

In any event, this is just another reminder to be cautious about proposals to create a new "hate speech" exception in U.S. constitutional law, by replacing the supposed excessive rigidity of modern First Amendment law with a more balanced and nuanced approach. Seems to me that our rigidity on this score is far superior to Euro-Canado-Australian flexibility.

UPDATE: My original post erroneously said that the law was enacted by the Australian Parliament; it turns out that it is a state law, which covers only the state of Victoria. Thanks to readers Jarrod Weir and Peter Laverick for correcting me.

Related Posts (on one page):

  1. Whoops:
  2. Be Careful What You Wish For:
  3. Harsh Criticism of Religion Made Illegal:

Democratic "Blue Dog" Coalition Endorses Bankruptcy Reform:

The Democratic "Blue Dog Coalition" in the House of Represntatives has come out strongly for Bankruptcy Reform in a letter to Speaker Hastert. As they correctly observe, "Allowing bankruptcy to become a financial planning tool rather than a last resort forces many of our constituents who pay their debts to pay for those who do not."

In the past, the reform legislation has garnered roughly 75% majorities in both houses of Congress (all Republicans and about half the Democrats). In an era of Washington partisanship, one would be hard-pressed to find many major pieces of legislation with such broad-based bipartisan support.


Tuesday, March 1, 2005

De Novo is Back: The law student group blog De Novo was out for a few days due to a server problem, but is now back online.

Roper v. Simmons and Capital Litigation: I have just finished working my way through the opinions in Roper v. Simmons. As someone who greatly values stare decisis, I was disappointed by Justice Kennedy's majority opinion. There just isn't much there to justify overruling a 16-year-old precedent and striking down 18 state laws. I'm not sure about the juvenile death penalty as a matter of policy, but I found Justice Scalia's powerful dissent pretty tough to refute as a matter of constitutional law.

  One interesting part of Roper is the incentives it creates (together with Atkins v. Virginia) for those seeking judicial abolition of the death penalty. Roper and Atkins tell capital defense litigators to delay their cases for as many years as possible. Drag out the appeals for a long, long time. During that period, have activists try to encourage legislators in a few select states to enact new legislative restrictions on the death penalty. It doesn't matter if those restrictions have any actual effect on how cases are charged; bans in states that do not actually bring any death penalty cases are fine, as the real audience is the Supreme Court. Years down the road, you can then use the new legislative restrictions in a few states as "objective indicia of consensus" that the practice of using the death penalty in such cases is impermissible. In effect, the changing practice in a handful of states can be bootstrapped by the courts into a constitutional ban that applies to all states.

  Notably, the bootstrapping can be prospective: evidence of changing attitudes in years following the crime and conviction can be used to trump then-governing law. This seems to be what happened in Roper. In 1989, the Court held that it was permissible to execute persons for murders committed at the age of 16 and 17. In 1993, Christopher Simmons committeed his heinous murder, and in 1994, Simmons was convicted and sentenced to death. Then, in the 11 years after Simmons was convicted and before the Supreme Court decided its case, 4 states decided end potential juvenile capital liability. [At least I think the states acted after 1994; to be honest, it's hard to tell from the Streib chart that the Court relies on. If anyone knows the exact dates, please e-mail me.] The action of the 4 states then became the basis for an alleged "consensus" in the direction of ending the juvenile death penalty. Had Roper been scheduled for execution soon after his conviction, executing him presumably would have been constitutional. Executing him apparently became unconstitutional only years later, after Atkins loosened up the Eighth Amendment a bit and a few states had banned the juvenile death penalty.

  UPDATE: Reader Jack Sullivan points out: "It seems pretty obvious that the defense lawyers already have plenty of incentive for delay. Delay keeps their clients alive." Indeed! The novel part here isn't the incentive for delay but the incentive for pushing legislative reforms during that delay.

Ward Churchill and the Jeffries Case:

Stone Court raises some interesting issues regarding my recent post regarding the 199 University of Colorado professors who signed a petition demanding the termination of the Regents' inquiry about Ward Churchill's misconduct.

Jeffries is a Second Circuit case in which the Supreme Court, pursuant to the recently-decided Supreme Court case Waters v. Churchill, reversed a previous decision of the Second Circuit. On remand, the Second Circuit upheld the decision of the Regents of the City College of New York to strip Jeffries of his chairmanship of the Black Studies Department, because of the Regents' reasonable concerns that Jeffries' off-campus racist speech would disrupt the operation of CCNY. Although Jeffries is a Second Circuit case, the Supreme Court's involvement gives the case national significance; Jeffries is an important case suggesting that the University of Colorado Regents' investigation of Churchill, based on the disruptive effects of Churchill's own hate speech, is perfectly lawful. And accordingly, the CU 199's assertion that the investigation is a violation of the First Amendment is extremely implausible.

Stone Court does not seriously dispute this point, but instead raises a separate issue from the Jeffries case. Waters v. Churchill set a fairly loose standard for the dismissal of public employees based on the potentially disruptive effects of employee speech. In the Second Circuit remand, an amicus brief from a group of university professors urged the Second Circuit to carve out a special academic freedom exception to Waters v. Churchill. The Second Circuit declined to do so, explaining that there was no need to consider the issue, because Jeffries had not lost his academic freedom; he was still teaching at CCNY. Stone Court argues that Jeffries stands for the proposition that Ward Churchill cannot be fired.

This misses the main point of my post--which was to refute the CU 199's assertion that the investigation of Ward Churchill is improper and must be terminated immediately. To the contrary, Jeffries validates an investigation begun because of the potential disruption caused by Ward Churchill's speech.

One can imagine all sorts of sanctions which the CU Regents might impose short of firing. For example, Churchill could be barred from campus until he successfully completes a therapy program for his inability to control his anger. He could be ordered to write formal retractions of the various academic frauds he has perpetrated. He could be ordered to pay full compensation to the copyright holders for the various works he has plagiarized.

But in the Ward Churchill case, I think that termination would probably be the proper remedy, and that Jeffries provides Churchill with less protection than Stone Court realizes. That the Second Circuit declined, on the facts of the case, to consider whether to create an academic exception to Waters v. Churchill does not mean that the Second Circuit (or, more relevantly, the Tenth Circuit) would create such an exception in a case where the issue was properly before the court. There is no such exception currently in the law, although the Second Circuit's statement in Jeffries does at least imply that creating an exception would be worth a court's consideration, in a proper case.

So if the CU Regents fire Churchill because of the disruptive effects of his speech, it's possible that the Tenth Circuit might create a Waters exception for Churchill's benefit. But the possibility that such an exception might be invented by some court in the future does not mean that the Regents' investigation is presently improper, or that firing Ward Churchill pursuant to the black-letter law of Waters v. Churchill would be a violation of the Regents' obligation to obey the First Amendment as it is currently interpretted.

Moreover, the history of the Jeffries case is hardly helpful to Ward Churchill. After the trial in the Southern District of New York, district Judge Conboy lambasted CCNY for demoting Jeffries solely because of Jeffries' off-campus hate speech, despite an abundance of evidence which clearly would have supported demoting (or firing) Jeffries and would have left him with no First Amendment counter-argument. For example, Jeffries had threatened to kill a student newspaper reporter. Judge Conboy also affirmed that the First Amendment does not require colleges to subject their students to the classroom ravings of incompetent "pseudo-scholars."

As my previous post argued, there appears to be an abundance of evidence to support the termination of Churchill's employment, on grounds which offer Churchill no shred of a First Amendment argument. Such grounds include academic fraud, and violation of the Colorado statute requiring all public university professors to take and obey an oath to support the U.S. and Colorado Constitutions. Well-established Colorado caselaw affirms that such an oath is violated when a professor calls for the violent overthrow of the U.S. and Colorado governments, as Churchill has done repeatedly.

Much of the evidence of Jeffries' professional misconduct (which CCNY failed to use when demoting Jeffries) was brought to public attention as the result of the public uproar following Jeffries' hate speech in Albany. By castigating CCNY for failing to base its actions on such evidence, Judge Conboy implied that it would be proper for a college to use such evidence as grounds for disciplining a professor. Accordingly, the assertion of the CU 199 that the University must ignore the developing evidence of Churchill's misconduct is implausible.

One small point: I criticized the University of Colorado administration for failing to act on complaints about Churchill's misconduct (including a violent threat against another faculty member) which were brought to the administration in the 1990s. Stone Court writes: "The unstated premise of Kopel's claim is almost certainly that the system was broken for Churchill because his political views were beloved by the alleged prevailing left-wing university establishment." Not so. I don't know if Churchill was simply the beneficiary of lax enforcement of rules for faculty in general; even today, the administration does nothing to enforce the university rule that professors should not politicize their classroom or verbally attack students because of the students' political views. Alternatively, if the administration was specially lax with Churchill, the reason might be that Churchill received favorable treatment on "diversity" grounds, because he was (supposedly) an American Indian. The latter theory is especially plausible because University records show that Churchill was hired for an affirmitive action job counseling minority students, was later given a teaching position, and was later pushed for tenure by the administration (two departments rejected him, but a third aceded to the administration's request) based on the adminstration's belief that Churchill is an Indian.


Alabama Sex Toy Case:

Glenn Reynolds denounces the 11th Circuit for upholding an Alabama ban on the sale of sex toys, and links to a newspaper column criticizing the opinion. In a 2000 article in the Hastings Constitutional Law Quarterly, Reynolds and I argued that such cases can be resolved without need to address the question of a constitutional right of sexual privacy: laws such as Alabama's are void because they are not within the scope of the state's "police power."


Typical BBC "Balance":

The BBC's report on the suicide murder in Tel Aviv last Friday opened with footage of the family of the terrorist suicdie-murderer in mourning--and showed no footage of the victims, or their families. The BBC eventually apologized, but you have to wonder about what kind of sick mindset their reporters have. (Via Honestreporting.com)


Roper v. Simmons: Liberal critics often accuse the Rehnquist Court of being an activist court that overthrows precedents and allows its own will to trump that of legislatures. The latest data point on this question is in: check out Roper v. Simmons, a 5-4 decision by Justice Kennedy invalidating the use of the death penalty for juveniles, overruling the Court's 1989 decision in Stanford v. Kentucky.

  I'm heading off to teach a class; more commentary later when I have read the opinions (I did notice a heavy reliance on international law, though -- see pages 22-24 of Kennedy's opinion).

The Law Review Article Submission Process: The arrival of March 1 means that it's peak law review submission season, and I am happy to have just finished submitting my latest article, Rethinking Searches and Seizures in a Digital World. I'm pretty excited about the article — it asks and answers a number of big questions in the field of criminal procedure that are beginning to come up a lot but no one has written about yet. I think the article 'clicks' pretty nicely.

  Having blogged at length about the law review article submission process, I thought some readers might be interested to know what approach I chose. On the paper vs. electronic submissions question, I ended up mailing paper copies to most of the journals on my list. I submitted electronic copies to the journals that encouraged them, however, including the main law reviews of Harvard, Yale, Stanford, Columbia, Penn, and Cornell. The electronic submission process was relatively easy, although some journals have better interfaces than others. For example, I couldn't tell if the upload at Columbia was successful (although I later received an e-mail indicating it was), and both Stanford and Penn required you to write down your tracking/ID number rather than just send it to you via e-mail. It also occurs to me that it's pretty easy to accidentally upload the wrong file; I doubt most journals will contact you if you accidentally upload a cover letter file rather than the actual paper. Paper submissions let you confirm that everything that should be in the envelope is in there; the current electronic forms do not.

  There has been a lot of attention recently on the length of law review articles. I was able to trim my article to a relatively compact 21,659 words, which will probably translate to about 45 journal pages. That's well under the 25,000 line that a number of journals are monitoring, although not quite at the 20,000 mark that the Virgina Law Review prefers (see this post for some details). If the top law reviews hadn't announced their interest in shorter articles the piece probably would have been in the neighborhood of 25,000-27,000 words; I ended up cutting the piece down by going through it line by line and taking out what seemed interesting but non-essential. It made for a stronger article, I think. (For some interesting insights into why this may be easier in some fields and harder in others, see this post from UCLA law prof Vic Fleischer.)

  One thing journals might keep in mind is that the new focus on article length should push journals to clarify their length policies for articles versus essays. Some law reviews allow authors to choose whether they wish to submit their pieces as (full-length) articles or (generally shorter) essays; my sense is that at most of these journals there are distinct article-selecting teams depending on which option authors choose. Given that, the journals should be clear about what kind of word length they expect for articles versus essays; otherwise authors don't really know which category to choose. Some journals have clear policies, but others don't.

Monday, February 28, 2005

Philosophy in Plain English: Chris Bertram of Crooked Timber points out a very cool site, Earlymoderntexts.com, which offers "translations" of classic works of philosophy into modern English. The idea of the translations is to present the arguments in modern English so the reader can understand the ideas without struggling through the archaic language of the original (and yet without watering down the argument). Here, for example, is a .pdf of the reworked version of Locke's Second Treatise of Government. The reworking is no doubt horrifying to the purists, but it's a very helpful resource for the rest of us.

Another Slatism; Well, Not Quite.--

In my last post, I pointed out that, if one ignored the real difficulties of the spoken word, then almost anyone could be caught in lots of infelicities or passages that would look odd out of context, passages that were as bad as most "Bushisms." I offered two "Slatisms" by Slate editor Jacob Weisberg (who is nonetheless remarkably fluent and careful in his speech), including this infelicity:

"Well this a, of course, when we were up there, we were talking skiing a little bit, and we were were talking talking politics." (NPR, Jan. 23, 2004)

I was just surfing and found that Weisberg had co-written the memoirs of Clinton Treasury Secretary Robert Rubin. The first Rubin transcript I found online had this quotation on the front page (the interview was with ABC):

"For the following three and a half years ago we have had horrendous fiscal policy over the last three and a half years."

I did not find a tape, so I am not sure if the quotation is correct (it may well not be). If Bush had said this (or even if he had not, but there was a false transcript floating around), it probably would have been a Bushism.

But Rubin's meaning is clear and it's spoken English, just like most of Bush's verbal gaffes.

Again, I am not saying that Rubin isn't more fluent than most (I'll bet he is)--and from what little I know, he was a superb Treasury Secretary. Normally, you would have to be a Slate editor to treat an infelicity like Rubin's (or most of Bush's) as even worth comment, let alone ridicule.

Of course, technically this is not a Slatism, because it was "committed" by Weisberg's co-author, but I think it makes my point that, if almost anyone were miked as often as George W. Bush is, there would be hundreds of awkward and inarticulate statements to ridicule--if one were inclined to be as churlish and unfair as the editors of Slate.

I suspect that the reason that Slate continues the series is that collections of these Bushisms are the sorts of books that people pick up as they are checking out at bookstore cash registers.

UPDATE: In checking trackbacks to my earlier post, I see that Isaac Schrodinger points out that he used the word "Slatism" in a post on Friday, apparently referring to quotes misattributed to Bush, rather than my slightly different meaning of awkward or odd sentences spoken by Slate editors. I actually wrote most of this morning's post (including the term "Slatism") on February 10 (after another of Eugene's criticisms of Bushisms), but decided to wait to post until the next one flagged by Eugene.

Further, "Slatism" is a fairly obvious coinage: I see in searching the web that Bendomenech on Jan. 7, 2003 used "Slatism" to refer to an awkward sentence published at Slate.com. I am nonetheless happy to point out that Schrodinger posted his use of "Slatism" several days before I actually posted my use of the term. I didn't see either of Schrodinger's posts until a few minutes ago; I was busy at Harvard on the weekend.


District Court Rules Padilla Must be Set Free: While a trial level opinion in this area merely sets the ball rolling for future appellate proceedings, it is worth noting that today a Bush-appointed District Judge in South Carolina ruled that the Executive Branch has no power to detain Jose Padilla, the alleged dirty bomber whose case previously went up to the Supreme Court. The opinion is available here. The Supreme Court ruled last summer that Padilla's habeas action had been filed in the wrong district; this habeas case was filed in the right district days after the Supeme Court's decision. Today's opinion was authored by Judge Henry Floyd, who was nominated by George W. Bush. Judge Floyd held that there was simply no authority for the Executive Branch to hold Padilla:
[T]the Court is of the firm opinion that it must reject the position posited by [the Government that it has inherent power to detain enemy combatants]. To do otherwise would not only offend the rule of law and violate this country's constitutional tradition, but it would also be a betrayal of this Nation's commitment to the separation of powers that safeguards our democratic values and individual liberties.

For the Court to find for Respondent would also be to engage in judicial activism. This Court sits to interpret the law as it is and not as the Court might wish it to be.
According to Judge Floyd, the government had to handle this as a criminal matter:
Simply stated, this is a law enforcement matter, not a military matter. The civilian authorities captured Petitioner just as they should have. At the time that Petitioner was arrested pursuant to the material arrest warrant, any alleged terrorist plans that he harbored were thwarted. From then on, he was available to be questioned -and was indeed questioned - just like any other citizen accused of criminal conduct. This is as it should be.
He added:
"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Const. Art. 1, § 9, cl. 2. This power belongs solely to Congress. Since Congress has not acted to suspend the writ, and neither the President nor this Court have the ability to do so, in light of the findings above, Petitioner must be released.
He concluded:
If the law in its current state is found by the President to be insufficient to protect this country from terrorist plots, such as the one alleged here, then the President should prevail upon Congress to remedy the problem. For instance, if the Government's purpose in detaining Petitioner as an enemy combatant is to prevent him from "returning to the field of battle and taking up arms once again[,]" Hamdi, 124 S.Ct at 2640, but the President thinks that the laws do not provide the necessary and appropriate measures to provide for that goal, then the President should approach Congress and request that it make proper modifications to the law. As Congress has already demonstrated, it stands ready to carefully consider, and often accomodate, such significant requests.
Thanks to Howard for the link.

  UPDATE: Armchair Genius properly notes that the title of my post is a bit inaccurate; technically the Judge held that Padilla cannot be held as an enemy combatant, but that the government could continue to hold him if they charge him with a crime. In any event, the next step is the Fourth Circuit.

Roll Tide!

Kudos to the University of Alabama Student Senate for having the courage to stand up to their own faculty and condemning the faculty's endorsement of a speech code. The indispensible FIRE is on the case, and has the full story on its website.

From the Student's Resolution:

The Student Senate resolution, sent to UA President Robert Witt and Faculty Senate President John Mason, passed unanimously on February 24, 2005. Authored by Student Senator Pat Samples, the resolution states that "[f]ree speech is absolutely vital to the mission of any university, where new and often controversial ideas must be discussed openly and rationally in order to make advances in knowledge" and proclaims that "[b]y defending free speech for all students, one in no way condones any kind of hate or intolerance; [o]n the contrary, one is promoting tolerance of others despite their differences, especially their differences of opinion." The student resolution also warned that adopting a speech code would be a legal liability for UA and would "greatly tarnish its public image." The resolution's call for free speech for all students directly opposes the Faculty Senate's "hate speech" resolution passed last September.

I want to also express my congratulations to several old friends of mine on the Alabama faculty who were willing to stand with the students in favor of free speech.

It really is extraordinary that we live in an age where students have to educate faculty on the importance and educational value of free speech.

The Torch--FIRE's new blog--also reports that this is not the first time that Alabama's students have stood up to bullying by their Administrators, who once tried to prohibit the display of American flags on campus.

Update:

Whoops--looks like Randy was already on the case.

Update:

Several readers have emailed me noting a comment from Washington Monthly which clarifies that Alabama actually tried to ban the display of all dorm window displays, which would, of course, include the American flag, and that Alabama students protested the ban by displaying the American flag in their dorm windows, which would have been prohibited under the university policy. I apologize for understating the full reach of Alabama's proposed trampling on free speech in the earlier situation.


NPR Story on Bankruptcy Reform Legislation:

Long story on NPR this morning about the Bankruptcy Reform Legislation. Pretty much what you would expect, but they do quote from my testimony in the Senate Judiciary Committee last week. You can listen to it here.


Choosing a Lower-ranked Law School Over a Higher-ranked One:

I agree with Orin that, as a general rule, it's wise to pick a much higher-ranked law school over a lower one. Depending on the extent of the difference in rank, however, other factors can tip the balance:

(1) Geographic preference: If one wishes to work in Cincinnati when he graduates, it's likely better to go to U.C. than to, say, B.C. Especially if you are single, you might strongly prefer to spend three years at, say, George Mason in Arlington than three years at W&L in rural Lexington (and, indeed, urban law schools in desireable cities tend to get better students than do well-thought-of schools in Midwestern university towns; compare George Mason's LSATs to University of Illinois' or University of Iowa's). On a narrower geographic note, some of the Mason students I know who turned down Georgetown or G.W. did so because they are older evening students with families and live and work in Virginia, and can't spare the extra time and energy to get in and out of the city (especially because local employers know that Mason night students have entering scores rather similar to the other Georges' night students). On the other hand, the highest-ranked schools tend to have brand names that carry nationwide, an important factor if you want to be geographically flexible. (And if you want to be a law professor, you MUST try to go to a top 15, and preferably top 5, law school.)

(2) Special programs: I don't know how common such things are, but George Mason has an excellent patent program, and students in that program generally have few problems getting lucrative jobs. Thus, things can come down to factors such as cost.

(3) Cost: Attending a higher-cost, higher-ranked law school can pay big dividends, if you are young and planning (hoping) to work at a big firm. If you're planning to go into a family firm, work for the government or as a solo practitioner, and/or are over forty, capitalizing the extra costs of a private school becomes more of a problem.

(4) Special intellectual focus of a law school: Mason, for example, has a faculty with a strong interest in law and economics. Students interested in economics are likely to thrive at Mason both because they have some background knowledge, and because they are likely to be especially engaged. Better to do very well at school ranked X than to be a mediocre student at a school ranked X+10.

(5) Law school employment connections: For example, A.U. has lots of connections in the D.C. "public interest" law community. Cross-river rival Mason has lots of connections on the Hill, especially among Republicans.

(6) Intellectual interest: Believe it or not, one occasionally meets law students, especially older ones, who are going to law school primarily because they want to learn about the legal system, not to practice. Such students should choose the school that bests meets their intellectual needs, regardless of rank.

(7) Joint degrees: Some schools have relatively unique joint-degree programs. Mason, for example, has joint degree programs with the Economics Departments, which is unusual only in that the Econ department is itself so different from most. If a student is getting a law degree primarily to supplement a primary interest in something else, such as economics, the name brand of the law school becomes less important.

And then there are the intangibles Orin talked about; it's three years of one's life, after all.


E.g. and i.e.:

A recent edit that I got from a law review reminded me that not everyone knows the distinction between these two.

"E.g." means "for example"; it's short for the Latin exempli gratia. "I.e." means "that is" or "that is to say"; it's short for the Latin id est.

So you might say, for instance "European countries (e.g., France and Germany)" but "Benelux countries (i.e., Belgium, Netherlands, and Luxembourg)." Or you might stick with the purely English equivalents, though "e.g." at least is common enough that people should get it from context, and also has the merit of brevity.

UPDATE: Reader Ken White reminds me about this exchange from Get Shorty:

Ray "Bones" Barboni: Let me explain something to you. Momo is dead. Which means everything he had now belongs to Jimmy Cap, including you. Which also means, when I speak, I speak for Jimmy. E.g., from now on, you start showing me the proper fuckin' respect.

Chili Palmer: "E.g." means "for example". What I think you want to use is "i.e."

Ray "Bones" Barboni: Bullshit! That's short for "ergo."

Chili Palmer: Ask your man.

Bodyguard: To the best of my knowledge, "e.g." means "for example."

Ray "Bones" Barboni: "E.g., i.e., fuck you! The point is this: When I say "jump", you say "OK", okay?


Save Arrested Development!

According to reports, Arrested Development is on the verge of being canceled!

A petition has been started to save Arrested Development--you can sign it here.

Arrested Development is the best show on television--if you haven't seen it, watch it this weekend and then sign the petition!


Seeking Reviews of E-Merchandise Sites:

So I'm going to try my hand at some Volokh Conspiracy designs -- I'll probably pick a few that sound promising and provide them as options. Have it your way, that's our slogan here at The Volokh Conspiracy, though for intellectual property reasons we probably won't use that one on the T-shirts.

But the question: What service to use? I'd heard good things about CafePress, but then ran across some negative reviews (first in a comment on the Paraphernalia post, and then in some comments I found online). Zazzle sounds like an alternative, but I've only heard a little about them. I'm not looking for a place that will do the design; I'm planning on having something pretty simple, so I can do it myself. I'm looking for something that will take orders, create the goods, and ship them.

The priorities:

  1. High-quality stuff, not cheapo iron-ons that will crack or peel after a few washings.

  2. As low a price as possible, given constraint #1.

  3. Good customer service for buyers.

  4. Ease of use for me (so for instance having all the products on one service is better than splitting among two).

  5. No or low cost for us.

  6. Variety of products -- for instance, polo shirts as well as T-shirts, coffee mugs and mousepads as well as clothes, and the like.

  7. Whatever else I'm forgetting, though that might have to be a higher priority.

Any suggestions? Please post them in the comments, since I think other readers might be looking for similar information, for their blogs, for their other projects, or just for something noncommercial for themselves and friends.

9 Comments

Slatism of the Day.--

You would think that George W. Bush would make enough verbal gaffes that a journalist wouldn't have to try to trick his readers into thinking that Bush is more inarticulate than he is. But Slate, under the direction of Jacob Weisberg, must come up with a Bushism of the Day to feed their feature and the cash cow of calendars and other merchandise catering to Bush-loathers. Eugene has been insightfully covering these over the last year or so.

Accordingly, on days when Bush has made no real mistakes, Slate must squeeze quotations out of context or pretend that informal, off-the-cuff speech should look on the page like edited prose. Real conversation is a series of starts and stops, with doubling back to respond to the words and facial expressions of the hearers.

First, quotations out-of-context. Consider this example of a sensible statement that seems silly out of context:

"I'm here skiing the New Hampshire primary." (Jan. 23, 2004)

Second, inarticulateness. Consider this example of inarticulateness:

"Well this a, of course, when we were up there, we were talking skiing a little bit, and we were were talking talking politics." (Jan. 23, 2004)

Certainly, "we were were talking talking politics" is inarticulate, but it is the ordinary sort of speaking error that even those far more articulate than Bush would make.

I can prove my last assertion because these are not "Bushisms," but rather "Slatisms." I searched for an online recording of Jacob Weisberg and found both of these on the second one I listened to--Jacob Weisberg interviewing a Kerry family member on NPR (Jan. 23, 2004). And this was an interview in which Weisberg should have had an opportunity to prepare his questions.

I should say that Weisberg is extremely fluent and articulate in his interviewing style, well beyond most speakers and well beyond George W. Bush. Yet this only brings home how unfair and what poor journalism Slate's feature frequently is. If I had listened to more than two of Weisberg's NPR commentaries or interviews, I would probably have been able to come up with many more examples--especially if I were to use the misleading standards that Slate uses in choosing examples.

Personally, I usually try for exteme naturalness in presentation, with a style designed to convey intellectual excitement about otherwise dry data, rather than designed to be read in a transcript. At scholarly meetings, I find the attempt at perfect prose (typical of philosophers sticking closely to their prepared remarks) usually boring and lacking in the spontaneity necessary to give the impression that you really believe what you are saying. That is why lawyers are usually trained not to use fully prepared remarks, but instead to use an outline. Indeed, the advice is that, if you write out the text of your remarks, you should outline that full text, and then tear up the full text.


Professors not opposed to Academic Fraud and Terrorism:

One hundred and ninety-nine faculty members at the University of Colorado at Boulder dishonored their school today by signing an advertisement in the Boulder Daily Camera in support of Professor Ward Churchill. Although the University of Colorado has many distinguished professors, the advertisement makes it clear that the University also has some professors with insufficient concern about academic and professional integrity. The Denver Post article on the ad is here; the Daily Camera ad itself is not on the web--although it would be a good idea for someone to place the ad on the web, as a permanent record of where some CU's faculty stood.

The advertisement purports to defend "Professor Churchill's right to speak what he believes to be the truth." This statement ignores the fact--which is perfectly obvious to to anyone who has been reading Colorado newspapers over the last several weeks--that Churchill is a consummate liar. There is overwhelming evidence--which Churchill has failed to refute in even a minimally plausible way--of the following falsehoods by Churchill:

As detailed by Lamar University's Thomas Brown, Churchill's writings claim that the U.S. Army deliberately caused an 1837 smallpox epidemic among the Sioux by distributing infected blankets. Yet the very sources cited by Churchill state that the epidemic was accidentally spread by travelers and that the army had nothing to do with it.

As detailed by the University of New Mexico law school's John LaVelle in the American Indian Quarterly and the Wicazo Sa Review, Churchill has lied about the 1887 General Allotment Act (falsely claiming that the Act required proof of a certain percentage of Indian blood in order for a person to be eligible to be allotted personal land on Indian reservations) in six books and eleven essays. LaVelle further demonstrates multiple instances of plagiarism by Churchill and of citing sources for the opposite of what they really said.

Churchill's academic career has also included time as Instructor of studio art and art history at Black Hills State College, and he promoted himself as an "Indian artist" until a 1990 law federal prohibited non-Indians from selling their work as Indian art. As detailed detailed by KCNC television, Churchill's 1981 serigraph "Winter Attack" is plagiarized from a nearly identical painting by the renowned artist Thomas Mails. Churchill merely reversed the left-to-right imagery, and colored a bush green.

"Professor Churchill's right to speak what he believes to be the truth" does not protect Churchill's apparently false claims that he received paratrooper training the Vietnam War, and that he served in a long-range reconnaissance patrol unit--although his military records show that he was instead in the motor pool. Mount Holyoke history professor Joseph Ellis was stripped of his endowed chair and suspended without pay for a year because of similar lies about his own Vietnam record.

As detailed by KHOW's radio's Dan Caplis and Craig Silverman and by the Pirate Ballerina weblog, Churchill's entire academic career has been based on advancement through his bogus claim to be part Indian.

The CU 199 purport to "defend an environment in which ideas may be openly exchanged." Yet Churchill himself has attempted to destroy such an environment, at CU and around the nation. Two former students have alleged that their grades were lowered in retaliation for their exercise of freedom of speech. (One student wrote a campus newspaper article reporting the evidence that Churchill is not an Indian; another student suffered retaliation for disagreeing with Churchill's statements in class that the 1995 Oklahoma City bombing was a good thing.) A CU professor reported that Churchill physicially threated her because she favored naming a building after a retired administrator, rather than after an Indian tribe, as Churchill preferred. Churchill called for the murder of anarchist writer Bob Black. He called for the death of a student newspaper cartoonist who had criticized a racist professor in Hawaii who wrote about her fantasy of mutilating and killing a white woman.

Although CU professors are required by state law to sign an oath to support the Constitution of the United States and the Colorado Constitution, Churchill has repeatedly called for the violent overthrow of the U.S. government, and has urged his audiences to perpetrate 9/11 type terrorist attacks in the United States. In doing so, he has provided explicit instructions about where the attacks should take place, and how the attacker should dress so as to be able to get to the target.

Now perhaps Churchill has credible defenses to the above charges, but if so, we have not yet heard them. There is overwhelming evidence that the University of Colorado's current investigation of Ward Churchill's conduct is well-grounded. For the CU 199 to claim otherwise is foolish. The CU 199 allege that to investigate Churchill undermines "the very idea of the university itself." To the contrary, the very idea of a university depends on professors who do their work honestly, rather than with fraud and plagiarism, and depends on professors who respond to their intellectual foes by using counter-arguments, rather than by threatening and promoting violence and homicide. That 199 professors could defend a fraudulent thug and bully like Ward Churchill shows how very far the University of Colorado has fallen from the very idea of a university itself.



UPDATE: Although the CU 199 never say so explicitly, the ad appears to adopt the theory of Churchill's attorney, David Lane, that none of Churchill's litany of misconduct can be the basis for firing him, because the current investigation of Churchill was started by the Regents after Churchill's infamous "little Eichmanns" essay became the subject of public controversy. The ad from the CU 199 states that "the investigation of Professor Churchill's scholarly record has been initiated in direct response to criticisms of his ideas and without any prior format complaint of specific professional or academic misconduct on his part."

The claim of the CU 199 is wrong as a matter of fact, and as a matter of law. According to articles in the Denver Post and Rocky Mountain News (Post archives are available on the web; Rocky archives are not), there have been repeated complaints made to the administration about Churchill's misconduct in the classroom and his threats. Furhter, as reported in Westword in 1994, the National American Indian Movement filed a complaint with the University of Colorado about Churchill's ethnic fraud. As was the norm at CU, none of these complaints appear to have resulted in any administrative action. Given such repeated failures, it is within the Regents' discretion to order their own investigation.

Further, as the Second Circuit case of Jeffries v. Harrelston makes clear, there was nothing improper about the initiation of an investigation following the uproar regarding Churchill's hateful comments. In Jeffries, the head of the Black Studies Department at the City College of New York was stripped of his chairmanship following the uproar resulting from a crackpot racist speech he gave in Albany. The Second Circuit explained that the City College Regents could demote Jeffries "based upon a reasonable prediction that the Albany speech would disrupt university operations." The CU Regents certainly had the right to order the torpid CU administration to conduct an investigation of similar issues. (Although ordered by the Regents, the investigation is being conducted by three CU administrators, two of whom appear to have brushed off previous complaints about Churchill.)

Implicit in the ad from the CU 1999 is that the issues of academic fraud and plagiarism are off-limits because no-one has made a "formal complaint" to the CU administration. But there is no rule that a university must blind itself to a professor's fraud and other misconduct unless someone files a "formal complaint." There certainly should be an inquiry, however, about why the CU Arts & Sciences administration failed to take action following the publication of Professor LaVelle's articles in the late 1990s, and failed to respond to a formal complaint which someone filed with CU about Churchill promoting terrorism at a speech in Minnesota.

Moreover, Churchill's book on the Justice of Roosting Chickens, which contains the "little Eichmanns" essay, is itself a very fit starting point for an inquiry into Churchill's scholarly competence; most of the book is a crackpot history of the United States, filled with obviously incompetent statements. Churchills calls George Washington was "the richest man in North America" during the revolutionary war. Churchill writes about "Future president Alexander Hamilton." He asserts that white people "demonstrably perpetrate crimes at rates as great or greater than persons of color." For this last claim, he supplies a footnote which does not support the claim; in fact, whether one relies on victim surveys or on arrest data, data overwhelmingly show higher crime rates among people of color. Churchill tells his readers that in 1980 the CIA operated in Jamaica "subverting military and police officials into undermining and ultimately deposing the liberal left government of Michael Manley." Actually, Manley did charge that his political opponent, Edward Seaga, was supported by the CIA, but Manley was not deposed; he lost the 1980 election, then returned to power after winning the 1989 election.

In short, the Jeffries case affirms that Regent concern about the disruptive effects of Churchill's hate speech was a lawful, constitutional grounds for commencing an investigation of Churchill's academic record. Although the University of Colorado's administration had repeatedly failed to take action in response to formal complaints about Churchill, the Regents' investigation is under no stare decisis requirement to emulate the administration's errors. Nor are the Regents obliged to ignore additional, substantial evidence of misconduct which has been uncovered by the media in recent weeks. The media have a First Amendment right to write articles and produce radio programs on subjects of interest to their audience and themselves. Churchill has no First Amendment right to silence the media simply because media interest in him was initially provoked by his mean-spirited essay celebrating the 9/11 attacks. Nor are the Regents or the CU administration required by the First Amendment to blind themselves to the new evidence of Churchill's misconduct which the Colorado media have been exposing on an almost-daily basis.

Churchill should not be fired because he is a hate-monger, but the CU Regents have the legitimate authority to investigate whether Churchill's hate-mongering disrupts the University of Colorado, and they have no duty to ignore evidence which is brought forward by third parties that Ward Churchill is an academic fraud. Nor are the Regents obliged to ignore the catastrophic liability that CU could face if one of Churchill's acolytes follows Churchill's instructions to perpetrate a 9/11 style terrorist attack.

The CU 199, however, simply elide these issues. Some of the 199 have impressive records of scholarship in their own specialties; others appear to be politically correct hacks. But the terrible judgement of 199 faculty members in attempting to protect a bully who is unfit to teach in any institution, let alone a state's flagship university, will provide prospective students and parents with further reason to doubt that true intellectual diversity and freedom can be found at CU Boulder.

Related Posts (on one page):

  1. The First Amendment Defense of Ward Churchill:
  2. Ward Churchill and the Jeffries Case:
  3. Professors not opposed to Academic Fraud and Terrorism:

Apropos Words and Editing,

here's a sweet and interesting obituary -- with a personal touch -- for Eleanor Gould, the New Yorker's Grammarian. Thanks to reader Michael Greenspan for the pointer.


Picking A Law School: David's recent pitch to prospective law students encouraging them to turn down invitations to enroll where I teach and accept invitations to enroll where he teaches reminds me of this pretty good essay on the complex relationship between law school rank and career success. VC readers who are in the happy position of choosing among various acceptances to law school should take a look.

  My own take is that going to a higher-ranked, more established, and more prestigious school tends to open some types of career doors more easily; the higher up the ladder your school, the less a student has to achieve once enrolled to benefit from those open doors. This does not mean that students necessarily should go to the "best" school that admits them. Law school is a three-year commitment, and considations such as location, cost, "feel", and specific career interests and priorities need to factor into the decision. Any or all of these can outweigh prestige and rank. Also, some perceived distinctions in prestige are too small to make any real difference; students should not get hung up on the details of the latest US News ranking. At the same time, I think most lawyers would say that the presumption should be in favor of going to the "best" school that admits them assuming that there are substantial differences in the rank/prestige of schools they are considering. Of course, as David notes, actual mileage may vary.

Sunday, February 27, 2005

Clarifying the Record re Mari Matsuda and the ACLU:

In You Can't Say That!, I have a chapter discussing the ACLU's gradual abandonment of civil liberties when they conflict with antidiscrimination laws. As an example of the decline of the ACLU's traditional commitment to freedom of expression, I note that the ACLU gave Professor Mari Matsuda of Georgetown Law Center, a leading advocate of the censorship of "hate speech," an honorary position. I've heard through the grapevine that ACLU president Nadine Strossen denies that Matsuda has ever been given any such position, and her denial made it into at least one review (see p. 154) of the book. Yet Matsuda's Georgetown website, last updated in March 2002 (just when I was completing the book manuscript) states that she serves on the national advisory board of the ACLU. If this isn't an honorary position, it's even worse, as it means that Matsuda is actually helping make ACLU policy. A while back, I emailed Strossen and asked her to clarify (and promised to correct the paperback edition if it turns out that Matsuda has not actually ever been appointed to an ACLU position), but I never heard back.


Legal Rules and Targeting Terrorists: Is the CIA "too cautious" when it comes to targeting terrorists abroad? Shaun Waterman of UPI has this interesting story.

Bobby Fischer will go to Iceland:

Bobby Fischer, who was being held in a Japanese prison for violating the trade embargo against the former Yugoslavia, will now be receiving an Icelandic passport. The Icelandic Parliament had debated the matter for weeks; they did not grant Fischer's request for citizenship but did decide in favor of travel documents. Iceland, of course, had been the scene of Fischer's first triumph over Spassky in 1972; Fischer remains an important figure in the Icelandic national psyche. Here is the full story.


Statutes in Exile: Howard is back, and poses a very interesting constitiutional law question:
  Assume that the [Supreme] Court issues a decision holding that the U.S. Constitution prevents a State from criminalizing certain specified conduct (e.g., early term abortion or consensual sodomy). Later, assume that the Court reverses course and holds that the U.S. Constitution does not prevent a State from criminalizing that same specified conduct.

  Is the effect of the first ruling to wipe from the books in all States, or in any States, the laws criminalizing the specified conduct? Would the second ruling allow States to begin enforcing the laws that were in existence when first ruling issued that the first ruling had declared or implied were unconstitutional? Or would the second ruling require States that wished to criminalize the specified conduct to pass new laws doing so, even if those States had identical laws on the books when the Court's first ruling issued?
Terrific question. I have some vague intuitions about the answer, but instead of "preening [my]sel[f] in front of the blogospheric mirror" I think I'll turn this one over to our readers. If any one knows of a case where this happened or an article or book discussing this issue, please let us know about it in the comment section.

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ACLU Approves Of Overwhelming Majority of Patriot Act: One of the odd things about debates over the Patriot Act is that even its harshest informed critics actually only oppose a very small part of the Act; the overwhelming majority of the statute is uncontroversial among the fairly small number of people who understand what's in it. As best I can tell, this has been a well-kept secret for the last 3+ years mostly for tactical reasons: If you want to get the public very worried about a topic to help advance your cause in future legislative debates, you can't very well admit that your objections are actually quite limited.

  In light of that, it's good to see that ACLU President Nadine Strossen apparently has admitted that the ACLU approves of more that 90% of the Patriot Act. As live-blogged at Ex Parte, from a recent address by Nadine Strossen at the annual Federalist Society student symposium: "[ACLU President Nadine Strossen] notes that the ACLU only has a few objections [to the Patriot Act, covering] about 12 of the 160 elements of the Patriot Act." While it's too early to know whether this live-blogged report is exactly accurate, note that the statement echoes the view of ACLU Executive Director Anthony Romero in early 2004 that "much of the Patriot Act is neutral legislation for civil liberties," and that only "about a dozen provisions" are objectionable to him. If anyone has a transcript of Strossen's remarks or a video, please send it on to okerr [at] law.gwu.edu.