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Saturday, April 16, 2005

Correcting Rosen's History:

Jeff Rosen is a learned guy who has written some rather perceptive things about the so-called Lochner era in his law review scholarhip. See 66 Geo. Wash. L. Rev. 1241. Unfortunately, in his journalistic piece in the Times magazine, he simply regurgitates Progressive myths when recounting constitutional history. To wit:

Rosen: All restoration fantasies have a golden age, a lost world that is based, at least to a degree, in historical fact. For the Constitution in Exile movement, that world is the era of Republican dominance in the United States from 1896 through the Roaring Twenties.

O.K., besides the fact that there is no "Constitution in Exile movement", there is nothing blatantly inaccurate about the above; the Republicans did dominate the United States from 1896 to the Roaring Twenties. But Jeff is clearly implying that there was some correlation between libertarian interpretation of the Constitution and Republican politics, in a way that would both draw parallels to today, but also suggest that such views have always been tied up in partisanship. In fact, however, some of the most libertarian Justices of the period Jeff refers to–Melville Fuller (Cleveland), Rufus Peckham (Cleveland), and James McReynolds (Wilson) were appointed by Democrats. Some of the most statist Justices–Holmes (Roosevelt), Stone (Coolidge), Roberts (Hoover), and, at the tail end, Cardozo (Hoover) were appointed by Republicans. Constitutional interpretation simply wasn’t a partisan (though it was a political) issue, and with few exceptions the Justices of the period from both parties accepted constitutional limitations on both federal and state regulatory power that none of today's Justices would countenance.

Rosen: Even as the Progressive movement gathered steam, seeking to protect workers from what it saw as the ravages of an unregulated market, American courts during that period steadfastly preserved an ideal of free enterprise, routinely striking down laws that were said to restrict economic competition.

There is a wealth of scholarship, starting with historian Charles Warren in the 1910s and 20s, through recent work by myself and others (and Cushman, 83 Va. L. Rev. 559; Melvin I. Urofsky, State Courts and Protective Legislation During the Progressive Era: A Reevaluation, 72 J. Am. Hist. 63 (1985)), showing that the Supreme Court, especially through 1923, rarely invalidated economic regulations. The Court, and lower courts, allowed restrictions on free enterprise ranging from bans on options trading to Sabbath laws to child labor laws (at the state level) to a wide range of draconian professional licensing laws to many, many more types of regulations. Between 1923 to 1934, the Supreme Court grew somewhat more aggressive about invalidating regulatory laws, but, at the same time, (1) state courts virtually abdicated the field; and (2) even the Supreme Court upheld some rather unprecedented and draconian regulations, such as the Railway Labor Act (unanimous opinion at 281 U.S. 548).

Rosen: The most famous constitutional battle of the time was the 1905 Supreme Court case Lochner v. New York, which challenged a law that was passed by the New York State Legislature, establishing a maximum number of working hours for bakers. In a dissenting opinion, Justice Oliver Wendell Holmes Jr. objected that "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics," referring to the celebrated Social Darwinist and advocate of laissez-faire economics.

Spencer has been unfairly tarred as a "Social Darwinist", and Holmes himself is far more accurately depicted as a Social Darwinist, but I won’t go into that here. I will say that first, Social Statics is a book by Spencer, something that for some reason most constitutional scholars don’t know. The book advocated the libertarian "law of equal freedom," which Holmes analogized to the sic utere tuo ut alienum non laedes principle in law (use your property in such a way so that it does not hurt that of others). Holmes pointed out that the sic utere principle had never been adopted by the Court as part of the U.S. Constitution (and indeed, the Court, Holmes noted, upheld many types of economic regulation), so he could not understand why maximum hours laws would be unconstitutional. Note that Holmes was neither accusing his brethren of being Social Darwinists, or of adopting a laissez-faire view of the Constitution; indeed, on the latter point, he was pointing out that Lochner was inconsistent the with the Court's general indifference or hostility to laissez-faire as a constitutional principle. By stating that the Fourteenth Amendment did not enact Social Statics, Holmes was simply stating that the Fourteenth Amendment did not require the states to adopt a radical libertarian system of government.* (Relatedly, Spencer was not simply an advocate of laissez-faire in the economic realm, but a radical libertarian more generally, who, among other things, was an early and passionate supporter of women's rights.)

Rosen: Even after the election of Roosevelt in 1932, the Supreme Court continued to invoke laissez-faire economics to strike down federal laws, including signature New Deal legislation like the National Industrial Recovery Act.

You can read the NIRA case here, and I challenge you to find any hint of laissez-faire economics in the opinion. Indeed, the unconstitutionality of the fascistic NIRA was not even controversial on the Court–all nine Justices, including Brandeis, Cardozo, Stone, and Roberts, thought the law clearly exceeded federal power. More generally, Jeff should know better than to mix and match the Lochner line of due process cases and the scope of federal power cases. The two lines of cases happened to both be overturned around the same time during the New Deal, but they were in fact, separate lines of cases, with separate rationales, and "inconsistent" results (e.g., the Supreme Court upheld state child labor laws challenged under the due process clause, but invalidated federal child labor laws as beyond the scope of federal power).

I recognize that the history Jeff recounts is not the main point of his article. However, if one is going to write about those who want to restore pre-New Deal doctrines, it's important to know, as libertarian academics who support full or partial "restoration" generally do, what those doctrines actually were and what effect they had. Relying on Progressive mythology in critiquing the views of libertarians who know better simply isn't helpful.

* Clarification: Enforcing liberty of contract in one case hardly means that the Court was adopting an overall laissez faire view of the Constitution. Holmes was arguing that Lochner was a logical opinion only if the Court was willing to apply sic utere broadly as a matter of constitutional law. This is actually quite silly if you read the majority opinion, which draws quite reasonable distinctions between constitutional workplace regulatory laws meant to protect worker or public health, and unconstitutional restrictions on liberty of contract that have no valid "police power" purpose. Holmes was a master of the flip aphorism, but one shouldn't confuse flip aphorisms with legal acumen.


Rosen on the "Constitution in Exile":

I’m sure the legal blogosphere will be abuzz with discussions of Jeff Rosen’s N.Y. Times magazine piece on the purported "Constitution in Exile" movement.

Jeff was a Yale Law classmate of mine, and I'm generally a great admirer of his work. But I do want to take issue with a couple of things in this particular piece.

First, I take issue with the whole idea that there is a "Constitution in Exile movement," as such. [UPDATE: co-blogger Orin makes similar points here.] "Constitution in Exile" is a phrase used by Judge Douglas Ginsburg in an obscure article in Regulation magazine in 1995. From then until 2001, I, as someone who knows probably just about every libertarian and most Federalist Society law professors in the United States (there aren't that many of us), and who teaches on the most libertarian law faculty in the nation, never heard the phrase. Instead, the phrase was pretty much ignored until 2001, when it was picked up and publicized by liberals. In October 2001, the Duke Law Journal, at the behest of some liberal law professors assumedly worried about what would happen to constitutional law under Bush appointees, published a symposium on the Constitution in Exile. Thereafter, other left-wingers, such as Doug Kendall of the Community Rights Council and Professor Cass Sunstein, began to write about some dark conspiracy among right-wingers to restore something called "the Constitution in Exile."

Yet, outside of Ginsburg’s article, I still have not seen or heard any conservative or libertarian use the phrase, except to deny that they ever use it. And a quick Westlaw search shows that no conservative or libertarian constitutional scholar has ever used it in a law review article. I acknowledge that some Federalist types, including me, do believe that various pre-New Deal constitutional doctrines should be revived. But let's be clear on the fact that the idea that there is some organized "Constitution in Exile movement," that is in fact using that phrase is pure fiction. Why does this matter? Because the phrase "Constitution in Exile movement" implies that there is some organized group that has a specific platform. In fact, what you really have is a very loose-knit group of libertarian-oriented intellectuals with many disagreements among themselves. Would I, for example, be considered a member of the "Constitution in Exile movement" even though I don't buy Epstein's theory of the Takings Clause, and think Lochner was probably wrongly decided? [UPDATE: It also matters because there's a reason actual believers wouldn't use the "Constituion in Exile" moniker. Unlike conservative orginialists, the more libertarian elements on the legal right--the folks that Rosen interviews for his piece--generally don't have any nostalgia for the pre-New Deal or even pre-Warren Court jurisprudence on issues such as the Equal Protection Clause's protection of minorities, the Incorporation of the Bill of Rights against the states, the First Amendment, etc.; I know that both Barnett and Epstein, for example, think Griswold was correctly decided, and probably think Roe, or at least Casey, was too. The phrase "Constitution in Exile" suggests a desire to revive pre-New Deal constitutionalism whole hog, when the folks Rosen refers too mostly want to add additional limits on government power. In fact, the interest groups most critical to the Dems on judicial nominations--feminists, ACLU, minority activists--would almost certainly by happier with a Justice Janice Brown or Alex Kozinski than with a Justice Luttig or Bork].

[material deleted; it was unfair]

Finally, Jeff, while not explicitly critical of libertarian constitutional theory, does seem to be implicitly raising the alarm regarding potential future conservative or libertarian judicial activism. I hope it's not impolite to mention that this alarm-raising comes with a touch of irony from someone whose first published law review work defended the proposition that the Ninth Amendment protects judicially enforceable natural rights, and, moreover, that courts should refuse to enforce a constitutional amendment banning flag-burning, because such an amendment would itself be an unconstituitonal invasion of natural rights. 100 Yale Law Journal 1073 (1991).

UPDATE: Oh, and it should go without saying that none of the individuals Rosen identifies as pushing the purported "Constitution in Exile movement"--Greve, Epstein, Barnett, Bolick, etc.--have any political power. The odds that Bush will nominate a libertarian type to the Supreme Court (unless its Janice Brown for other reasons) are slim to none. He may nominate someone like Luttig who believes in some limitations on federal power, but you would be hard pressed to find any originalist who believes that the current scope of federal power complies with the original meaning of the Constitution. Even Bork, who certainly has little in common with Greve et al., has always acknowledged this point, though he's argued that it's too late to do anything about it, a rather odd (and politically convenient) perspective for an originalist, and one that's always been controversial even among his acolytes. And if the Bush people were really intent on pushing a constitutional revolution, wouldn't they have followed in Reagan's footsteps and appointed a prodigious fraction of conservative and libertarian legal academics to the federal bench?


"Constitution in Exile" in NYT:

Tomorrow's New York Times magazine will feature a Jeff Rosen article on alleged conservative movement to restore the "Constitution in Exile." Slate has a preview here. A prediction: The article will conflate efforts to restore textual limits on enumerated powers with "Lochnerism" and judicial enforcement of libertarian ideology. Rumor also has it at least one co-conspirator will be featured in the piece.


Friday, April 15, 2005

Finger in the Wendy's Chili Story:

Most readers have apparently heard about the woman who tried to sue Wendy's after allegedly finding a finger in her chili. (I was skeptical from the start: chili has ground beef in it; how would a finger make it through processing intact? Besides, I told my Torts class this semester that foreign-object-in-fast-food cases turn out to be bogus much more often than you'd think.)

The saving grace of the story is a great (though not entirely tasteful) one-liner from Bill Maher: "Luckily, it was only a finger. If it had been a whole hand, Congress would have tried to keep it alive."


Goyishe Bubbemisehs:

Very interesting article in Ha'aretz about the power of the Internet and small publishing companies to challenge idiotic dogma(e.g., the world is less than 6,000 years old) enforced by ignorant religious leaders. My father tells me that when he was in heder in Brooklyn, he showed the rabbi a book with pictures of dinosaurs, which the rabbi promptly declared a "goyishe bubbemiseh" (gentile old wive's tale). The sad thing is, unlike in Israel, where the ultra-Orthodox leaders are unworldy and unfamiliar with scientific literature, our own American Christian fundamentalists actually know better, but still peddle anti-evolution and anti-scientific nonsense.

UPDATE: Here's a jpeg of a New York Times article on the same controversy involving Rabbi Nosson Slifkin.


Rumor Update: This is an awkward post to write. In an earlier post, I mentioned in passing a rumor that "then-Drug Czar" Bill Bennett pressured Judge Douglas Ginsburg to withdraw as a Supreme Court nominee after it was disclosed that he had smoked marijuana as a law professor in the presence of students. Presumably in an effort to cast doubt on the rumor, John Podhoretz emailed Glenn Reynolds (not me) to say that Bennett was Secretary of Education at the time, not Drug Czar. Although the unconfirmed story I heard had many more details than I reported, it did not include the fact of Bennett's position in the Reagan administration. I added that erroneous detail myself for context. So the inaccuracy of that fact does not go to the accuracy of the story I was told itself. But the awkwardness of posting this clarification now is that this was, after all, a story. I have no personal knowledge of its accuracy. But it was told to me close in time to the event by someone who I think would have been in a position to know its truth (not Judge Ginsburg with whom I have never discussed this), else I would not have related it, even in passing, in the first place. And if Podhoretz is correct that "At the time, in 1987, it was a lead-pipe cinch that any public figure who had to admit to doing illegal drugs was in BIG trouble," as well he may be, then why is it difficult to believe that Bennett would approach Judge Ginsburg to get him to withdraw? Especially given what we now know of Bennett's interest in drug prohibition. In light of Podhoretz's observation, it is interesting that the story I heard contained another detail: When informed of Judge Ginsburg's withdrawal, President Reagan expressed his disappointment as he was preparing to fight for confirmation. But as I said: it's only a story.

Related Posts (on one page):

  1. Rumor Update:
  2. Supreme Opportunity Cost:

I have been enjoying the sunny warm weather here in Tucson following my talk at University of Arizona yesterday. Thanks to all the students and faculty who attended. In the meantime, Saul Cornell sent this message in response to my last post about the Joyce Foundation funding of the Second Amendment Research Center at OSU (which he gave me permission to post here):
Joyce did pay for the individual rights people who attended the Fordham conference! As I explained in my last e-mail the first e-mail exchange we had is no longer germane. After our exchange Joyce and I had come to an agreement that the Center would not adopt an official point of view about the Second Amendment. Joyce was fine with the idea of conferences that would have multiple points of view--The issue about funding that seemes to bother you was a question about how to use my limited resources for any new original research that my Center might undertake. When we had our first e-mail exchange I was thinking mostly about short term research fellowship support for people to come to my Center or giving incentives for people to do new research on the topic. Given the limited nature of my funding I abandoned that model. Instead, I have chosen to put my money into the web site and conferences. The web site does include the IR point of view as did Fordham. Are we clear now?
Saul's message represents a positive development in this dialog. It is indeed clear now that Saul (and Joyce) accept the basic principle I argued for in my earlier posts: academic institutions like OSU have a different obligation to provide balance among legitimate viewpoints in an academic debate than do think tanks, advocacy groups, or blogs. Whether future programs sponsored by the Center at OSU are balanced beyond a token or two will be evident for all to see. I look forward to seeing seeing, and perhaps even participating in, its future conferences.

Research on False Rape Reports:

I've been doing some reading on the debate about the incidence of false rape reports. I've looked at a lot of studies on this, and hope to blog some more about it later (short summary: estimates range from under 2% to 40+%, though I have no opinion about which is right). But in the meantime, I thought I'd mention one observation that may be helpful for thinking about other debates as well.

Many people who believe that false rape reports are a tiny fraction of all rape reports argue that very few women would make such false reports. The common line is that women don't lie about rape, which must really mean that very few women lie about rape.

But even if this is true — and I strongly suspect that it is — this is entirely consistent with the possibility that a substantial fraction of rape reports are false. Let's say, for instance, that only 2% of all women age 16-19 would ever lie about rape; and that any particular year, only 2% of that tiny fraction actually do falsely report a rape to the police. So 98% of all women (including relatively young and not very mature women) would never lie about rape, and even of those who might under the right circumstances, most never will. (I use the 16-to-19 age group because the risk of rape is highest there; the same analysis could apply, though, to other age groups.)

There are, however, about 8 million women in the 16-to-19 age group in the U.S., and 2% x 2% x 8 million = 3200 false rape reports per year. The National Crime Victimization Survey (2002 data, see table 3) reports that 2.7 out of 1000 people age 16 to 19, which means 5.4 out of 1000 women age 16 to 19, are raped each year. This is an estimate based on a survey, not on police reports, and it may well be low (the actual rate may be higher); but in any event, we know that the rate of rapes reported to the police is roughly half that estimated to the NCVS (compare the Uniform Crime Reports data, and remember that the UCR data aggregates rapes and attempted rapes, while the NCVS breaks them out). This means that roughly 2.7 out of 1000 women age 16 to 19 report an actual rape each year, for a total of 2.7/1000 x 8 million = 21,600 true rape reports per year.

Under this model, then, 13% of all rape reports to the police would be false (in the 16-to-19 age group), even though only 2% of all women in that age group would ever make a false rape report, and only 2% of those actually make a false rape report each year. Ninety-eight percent of all women may be completely truthful on this subject, and yet we may still have a substantial false rape report rate.

This, of course, is just a model, based on numbers picked out of thin air. Maybe, for instance, the fraction of women who'd ever make a false rape report is much lower than 2%, or maybe it's higher. We can't know for sure.

But the model does illustrate that it's perfectly possible to believe that (1) only a tiny fraction of women would ever lie about being raped, (2) a huge fraction of rapes are unreported (quite possibly even more than 50%, so that rape may be a highly underreported crime by many women, as well as overreported by a few), and yet (3) a substantial fraction of rape reports to the police are false.

Some people who worry about false rape reports may in fact believe that women are psychologically wired to lie about such things; I'm certainly not one, but historically that has been the view of some, to which others have understandably reacted with hostility. That may be why some people take the opposite view: Instead of "women often lie, so the false rape report is very high," they say "women very rarely lie, so the false rape report is very low." But that doesn't follow. False rape reports, however rare they may be as a fraction of all women might still be substantial as a fraction of all rape reports.

UPDATE: Just to make it clear, I am not talking here about reports of ambiguous situations, where the complainant sincerely believes the action was rape, but it turns out that it wasn't. I'm discussing in this post outright fabrications — claims of rape that the complainant fabricated because of a desire for revenge, sympathy, money, an explanation for consensual but adulterous or otherwise socially unacceptable sex, or something else. (In some such claims the complainant may have had consensual sex with the accused, and in others there may have been no sex, but the important point is that the complainant knows there was no nonconsensual sex.) The Kanin study, which I hope to blog about in a few weeks, reports on police accounts that assert such behavior has taken place. Likewise, unless I'm mistaken it's generally believed that the infamous Socttsboro boys case involved a fabricated rape account, though the motive there may have been different from the ones identify.

I stress again that I'm not making any assertions about how common such false accounts actually are. They may be an extremely low fraction of all rape reports, or they may be a substantial minority. My point in the original post was simply to say that one can believe that very few women would ever lie this way, and yet have such false reports be a substantial fraction of all rape reports. My point in this update is to make clear that the problem I discuss here is one of fabrication — not something that can be solved, for instance, by clarifying the definition of rape to remove possible ambiguities.


Fake Paper for a Computer Conference:

Arvin Tseng (Rebuttable Presumption) has a pointer to this story. "Jeremy Stribling said Thursday that he and two fellow MIT graduate students questioned the standards of some academic conferences, so they wrote a computer program to generate research papers complete with 'context-free grammar,' charts and diagrams. . . . To their surprise, one of the papers -- 'Rooter: A Methodology for the Typical Unification of Access Points and Redundancy' -- was accepted for presentation [at a conference."


Prawfsblawg on Women in the Legal Academy:

About half of all law students, including at top schools, are women. But most applicants for academic jobs, and most hires, are men. Why? Prawfsblawg is having a discussion.

UPDATE: Christine Hurt of the Conglomerate suggests that married women are on the average the "second earners in households" and therefore are less geographically mobile than are men, a real problem in a national market like law teaching. On the other hand, legal writing faculty, generally hired locally, are predominately women.


Welcome to NYU, Justice Scalia: Justice Antonin Scalia recently visited NYU Law School, and if press reports are any guide the welcome was rather mixed. According to this story, Scalia visited NYU to receive an honor from the student members of the NYU Annual Survey of American Law, a law journal. While at the law school, the Justice gave a question-and-answer session that was met with insults inside the room and a protest outside the room.

  The insult during the Q-and-A session has been widely reported online. Law student Eric Berndt, upset with Justice Scalia's oral argument questions and dissenting opinion in Lawrence v. Texas, asked the Justice: "Do you sodomize your wife?" Underneath Their Robes has an eyewitness report:
  There was this loud collective gasp from the audience, and for about 5 seconds Scalia stared at the questioner - I wasn't sure whether he was in shock like the rest of us, or whether he was going to come down from the podium and throttle the guy. He finally got a hold of himself and said he wasn't going to answer that and tried to move on to the next question, but for about 30 seconds the guy kept on badgering him and Scalia kept on trying to move to the next question, which he finally did.
  Wonkette reproduces an e-mail from Mr. Berndt explaining that his goal was to punish, embarrass, and dehumanize Justice Scalia for his allegedly bigoted views — what Mr. Berndt describes as an "act of resistance" against Justice Scalia's refusal to recognize his dignity.

  A protest against Justice Scalia followed the Q-and-A:
  A planned protest in Washington Square Park followed the Q-and-A, which drew activists from OUTLaw, an organization of LGBT law students, the National Gay and Lesbian Task Force, the NYU Black Allied Law Students Association and the NYC Chapter of the National Organization of Women. The group held signs that read "Scalia Go Home To the Dark Ages" and "Repeal Scalia," and wore homemade t-shirts reading "Scalia Not My Chief Justice."
  "Gifted people can either use their talents to help other people or hurt other people," said Bert Leatherman, a law student and the protest's organizer. "We all agree that Scalia has used his gifts to hurt people."
  After listening to brief speeches around the fountain, the group organized and marched to Vanderbilt Hall, the law school building. The group stood inside the school's courtyard and chanted "Sexist, Racist, Anti-Gay, Nino, Nino, Go Away!"
  "Scalia has got such a backwards world view and he wields so much power," said Dave Hancock, a Gallatin sophomore who joined the protest mid-march. "To be honored at a so-called progressive school is sickening."
  Unsatisfied with the effect of their protest, the group quickly moved outside the law school and onto the corner of West 4th and MacDougal streets. They surrounded the first-floor room in which Scalia was receiving his honor and continued to chant and wave signs at bystanders. Some protesters wrote "Honk 4 Justice" on the back of their signs instigating cabs and cars to increase the noise volume.
  While I have some thoughts about this, I would be much more interested to find out what VC readers think. To that end, I have enabled comments — please comment away. As always, though, please keep it civil and on-point. I repeat: civil and on-point. Any rude or irrelevant comments will be deleted.
187 Comments

Thursday, April 14, 2005

AEI Lochner Event Next Friday--Mark Your Calendars:

Next Friday, I, along with (fellow Yale Law '91 alum) Jeff Rosen of G.W. and Ted White of U. Va., will be participating in an AEI panel discussion (register here) on Lochner v. New York: Still Crazy After All These Years? Here are the details:

In Lochner v. New York (1905), the Supreme Court—discovering a right to contract in the Fourteenth Amendment—invalidated a New York statute setting maximum working hours for bakery employees. A century later, Lochner still stands as one of the most widely despised decisions in the Court's entire history. Conservatives denounce it as a prime example of "substantive due process" run wild—judicial invention paving the way for Roe v. Wade and its offspring. With equal fervor, liberals criticize the Lochner Court's perceived attempt to write laissez faire economics into the Constitution. But does Lochner deserve its lousy reputation? Or are these modern perceptions a product of dubious historical scholarship? What exactly is Lochner's legacy?

10:00 a.m. Registration

10:15 Panelists: David E. Bernstein, George Mason University School of Law Jeffrey Rosen, George Washington University School of Law G. Edward White, University of Virginia School of Law

Moderator: Michael S. Greve, AEI

Noon Adjournment

Hope to see some VC readers there.


Lots of Good Posts and comments up right now over at PrawfsBlawg.

AP Story Seemingly Seriously Mirepresents Ariel Sharon on Iran:

Brendan Loy reports:

The Associated Press reports, in an article that's currently being given top billing by Drudge, that Israeli Prime Minister Ariel Sharon told CNN he has ruled out a preemptive strike against Iran's possible nuclear facilities.

Sharon Rules Out Attacking Iran Over Nukes

JERUSALEM (AP) - Israel will not mount a unilateral attack aimed at destroying Iran's nuclear capability, Israeli Prime Minister Ariel Sharon said Wednesday in a CNN-TV interview.

Sharon said he did not see "unilateral action" as an option. He said Israel did not need to lead the way on the Iran nuclear weapons issue, calling for an international coalition to deal with it.

The only problem is, reading the actual transcript of the interview in question, I don't see where he says any of that . . . .

Thanks to Kausfiles for the pointer.


Looking for Good, Inexpensive Flowchart-Creation Software:

I'd like to design a flowchart for the second edition of my First Amendment textbook, to explain how a particular set of First Amendment rules (the one governing the government's actions as subsidizer or speaker) operate.

Can anyone recommend good, inexpensive flowchart creation software that has a free trial period? Please post the recommendations in the comments. Many thanks!

23 Comments

Max Boot on Darfur and on Internationalism:

Darfur here, internationalism (reviewing Beyond the Age of Innocence: Rebuilding Trust Between America and the World) here. I'm not an expert on these subjects, but I've generally found Max Boot's work interesting and persuasive, so I thought I'd pass these two along. A quote from the Darfur piece:

So who will stop the killing? That question should trouble any tender soul who has ever mindlessly muttered, "Never again." That incantation is repeated after every genocide -- after the Holocaust, after the Cambodian killing fields, after Rwanda -- and yet the next time mass slaughter breaks out, the world conveniently averts its gaze. The major exceptions in recent years have been Kosovo and Bosnia, which had the good fortune to be on Western Europe's doorstep. The rest of the world is treated to high-minded cluck-clucking and, maybe, ex post facto prosecutions.

The only way to save Darfur is to dispatch a large and capable military expedition. But Security Council members France, China and Russia have blocked a U.N. decision on armed intervention because they covet trade ties with Sudan. . . . [And] the only nation with a serious military capacity [for independent action], the United States, is overstretched in Afghanistan and Iraq.

The European Union should step into the breach. Its economy is as big as the United States' and its population is even bigger. But it has chosen to spend its euros on extravagant handouts for its own citizens rather than on the kind of armed forces that might bring a ray of hope to the "heart of darkness." Although the European members of NATO actually have more ground troops than the U.S. -- about 1.5 million soldiers -- only about 6% are readily deployable abroad. . . .

And from the other one:

[Kishore Mahbubani, who recently stepped down as Singapore's ambassador to the United Nations] closes with an obligatory plea for a kinder, gentler superpower to promote "greater respect for international law." But isn't that what Bill Clinton did? He never saw a treaty he didn't want to sign or a foreign leader he didn't want to consult. And yet that didn't prevent the growth of murderous anti-Americanism. Mahbubani, like other critics of the Bush administration, ignores Machiavelli's dictum that "it is much safer to be feared than loved." George W. Bush may not have increased the love for the United States, but if he has increased respect for American power, that's an underappreciated achievement.


Now Here's a Really Tough Puzzle:

Consider yesterday's puzzle:

What are the highest-grossing movies set in (1) North America, (2) Latin America, (3) Europe, (4) Asia, (5) Africa, and (6) Australia?

Now solve it for U.S. grosses, adjusted for inflation. I used the table here; I hope it has the right data and the right adjustments. Also, for purposes of this problem, consider a movie to be set in some place if a substantial chunk of the movie takes place there. [UPDATE: I originally said worldwide grosses, but I misread the table I referred to — it's U.S.]


Optical Regulation:

Williamson v. Lee Optical remains alive and well -- at least in the Sixth Circuit. (Link via How Appealing)


Wal-Mart Bids Au Revoir:

Another interesting article in the Washington Post on Wal-Mart's decision to close its store in Quebec after employees voted to unionize. Its a pretty long article, but its well worth it. It discusses in much detail (and in a surprisingly even-handed way), the question of whether Wal-Mart's decision was economically-justified or just sending a signal to other potential union organizers. It also has a fascinating discussion of the dubious tactics used by both parties, both Wal-Mart and the unions. Wal-Mart's questionable tactics and bullying have been well-reported, but the techniques used by the union organizers to intimidate employees into joining the union were interesting to me.

In the end, the interesting question is whether the employees and city as a whole were better off as a result of the train of events that followed. The story also reports:

At its headquarters on the outskirts on Jonquiere, the union is organizing a drive to find jobs for the Wal-Mart union supporters and to provide them with financial assistance.

This is interesting to me, from the standpoint that as a result of the union activities the store was closed, killing the jobs of union and non-union members alone. But if we assume that Wal-Mart and the union share some sort of moral culpability of the union in the store closure, it seems somewhat troubling that the union tells the now-unemployed non-union members to take a hike, while helping out those who voted to join the union. I certainly haven't thought through who owes moral duties to whom in this context (maybe there is a philosopher out there who can explain how to think about this), but at least as a first approximation, to to my mind it does raise an interesting and potentially troubling ethical dilemma as to what duties we owe to those who we injure indirectly at least in part, through our actions.

Update:

To clarify my observation in light of some reader comments. Wal-Mart may or may not owe a moral obligation here, but if they do, presumably they owe it to union and non-union former employees alike. By contrast, the union here is helping former union members to find new jobs, but not the non-union members. So it seems like there is a real double-whammy here for the non-union members; first they lose their jobs in part because of the union, then the union won't help them find a new job.


Sugar Daddies:

The Washington Post reports on a shameful performance by Republicans attacking CAFTA at the behest of sugar industry rent-seekers. Democrats, of course, are largely hopeless on free trade, but Republicans should know better.

The sugar issue consumed much of the hearing. The industry has been protected for decades by quotas that limit sugar imports and keep U.S. sugar prices at more than twice world levels. It enjoys significant clout partly because large cane-growing companies in the South shower campaign contributions on politicians of both parties, but also because beet farmers are widely dispersed and well organized.

In fact, Central America currently faces competitive disadvantages against other developing countries:

They also repeatedly raised the specter of China's export juggernaut, warning that Chinese manufacturers are threatening to overwhelm their Central American and Dominican competitors. Unless CAFTA gives America's neighbors permanent, zero-tariff access to the U.S. market for their clothing exports, apparel companies with operations in Central America "may well move production to China," Allgeier warned, adding that since Central American clothing makers tend to buy yarn and fabric from the United States, that would cost U.S. jobs as well.

When I was in Guatemala last month, economists were concerned that Guatemala would fail to see the light on this issue. For the United States to punt because of sugar industry rent-seeking would be utterly shameful.


A.P. Story on Bankruptcy Reform:

From the A.P., "Bankruptcy Reform Close to OK in Congress": "Bankruptcy legislation that could make it impossible for thousands of people to wipe away their debts is nearing passage by Congress."

Harder, yes; "impossible" no. Where do they get this stuff? Are they even trying for accuracy any more?

It goes on:

Between 30,000 and 210,000 people - from 3.5 percent to 20 percent of those who dissolve their debts in bankruptcy each year in exchange for forfeiting some assets - would be disqualified from doing so under the legislation, according to the American Bankruptcy Institute.

This reporter (Marcy Gordon) quite plainly has no clue what the bill actually does. I can't even figure out what she thinks it does.


Went to see Tom Stoppard's Travesties tonight.--

Tonight I took my daughter to Tom Stoppard's Travesties (1975) at Court Theater, the professional theater on the University of Chicago campus. My wife stayed home, as she usually prefers to do on weeknights. It is an extraordinarily witty play set in Zurich (mostly in 1917) involving a supposed British consul, James Joyce, V. Lenin, and Dadaist poet Tristan Tzara.

The play was evocative in odd ways:

1. I remembered the first time I saw a Stoppard play in 1971 — Rosencrantz and Guildenstern are Dead — which was one of my first dates with my future wife, in a hall two blocks away on the same campus. I remember it as a thrilling evening of theater.

2. In Travesties, when the characters described a street in Old Town in Zurich, with cafes and a red-light district, I thought about how much more sophisticated my daughter is than I was in high school. We had been on that street 2 or 3 times and my 18-year old daughter remembered it well. At Stoppard's description of the Limmat River in Zurich, she commented that he captured it exactly. She had also seen Stoppard performed when she spent 3 weeks at Cambridge University last summer.

3. The lines that resonated most strongly with me were those when Henry Carr, a British consul, was asking the Dadaist poet why artists were so privileged:

[Carr to Tristan Tzara:] When I was at school, on certain afternoons we all had to do what was called Labour - weeding, sweeping, sawing logs for the boiler-room, that kind of thing; but if you had a chit from Matron you were let off to spend the afternoon messing about in the Art Room. Labour or Art. And you've got a chit for life? (passionately) Where did you get it? What is an artist? For every thousand people there's nine hundred doing the work, ninety doing well, nine doing good, and one lucky bastard who's the artist. -- Tom Stoppard, Travesties (1975)

I thought that was a nice image for my privileged class of lucky bastards--tenured academics. The Matron has given us a chit for life, which is part of what allows me to raise a daughter far more sophisticated than I was. On the other hand, while my daughter speaks fairly fluent French, she doesn't know what it was like to grow up on a street full of kids in a safe town in the 1950s. Stoppard takes on academic chit-holders in Jumpers, which I have a sudden desire to see.

4. In the Court Theater production, the performances and direction were wonderful, with one exception. The James Joyce character had a terrible Irish accent, which caused me to wonder about what the director and the actor were up to. I Googled "accent joyce travesties stoppard" and found that in other productions, Joyce's bad accent was often cited as either a high point or a low point of the production. I assume that it was intended to be broadly funny, but it somehow didn't quite work.

But the evening did!


Wednesday, April 13, 2005

Foreign Law and the Culture Wars: In an essay at American Prospect Online, Deb Pearlstein argues that it is perfectly normal for the U.S. Supreme Court to discuss and cite to foreign law in the course of interpreting the U.S. Constitution — and that conservative opposition to the practice is groundless:
Like the bogeyman critique of "judicial activism," "foreign law" seems to have become the latest stand-in straw man for those who aim to cast fundamentally political opposition as a principled objection. It is hard not to conclude that vocal opponents of "foreign law" are driven less by any real threat to U.S. legal sovereignty than by the fear that even a conservative judge might embrace a legal rule with which they disagree. But that danger is also long known to the United States; it is the necessary price of the rule of law.
  I think Pearlstein misses the point. The real issue isn't sovereignty, but the culture wars. The Supreme Court's citations to foreign law have appeared in highly controversial cases at the heart of a national sociopolitical divide between (for lack of better labels) social conservativism and modern liberalism. The kinds of foreign countries that a Supreme Court Justice might know best mostly don't share this sociopolitical divide: in those countries, and especially their court systems, the views of modern liberalism for the most part have won out. In this environment, stressing similarities with foreign court decisions can seem a lot like taking sides in the culture wars.

  Of course, the Supreme Court has to rule one way or another in its cases, so in one sense it has to take a side. But citing and discussing foreign law for "confirmation" of a Constitutional holding does more than rule one way or another: it is a reflection of cultural association, an indication that at least some Justices envision themselves as part of a community that happens to be strongly identified with one side of these highly contested debates. Those that object to foreign law are not really concerned that foreign law is somehow binding on the United States, or that it represents a loss of U.S. sovereignty. To the contrary: it is the very fact that such law is obviously not binding under traditional methods of constitutional interpretation that makes the discussions of foreign law most objectionable to its critics. The fact that foreign law isn't binding, but that the Justices have gone out of their way to mention it anyway, fosters the impression that the Justices identify themselves with a side in the culture wars.

  If you're unpersuaded, try this experiment. Imagine that instead of citing foreign law in its decisions, the conservative majority on the Court started citing to and discussing the Bible. In particular, let's imagine that Roper v. Simmons had come out the other way, and that Justice Kennedy's opinion for the Court upholding the death penalty for 16 and 17 year olds had contained the following passage:
  Our determination that the death penalty is proper punishment for offenders under 18 finds confirmation in the fact that such punishment is recognized in the Judeo-Christian Bible. The Bible repeatedly requires capital punishment for many offenses, and nowhere limits this punishment to those 18 years of age. See, e.g., Levitucus 24:17 ("He that killeth any man shall surely be put to death."); Exodus 21:16 ("And he that stealeth a man, and selleth him, or if he be found in his hand, he shall surely be put to death."). Indeed, the death penalty is mandatory for a number of affronts against parents, which presumably would encompass many offenses by minors. See, e.g., Exodus 21:17 ("And he that curseth his father, or his mother, shall surely be put to death."); Exodus 21:15 ("And he that smiteth his father, or his mother, shall be surely put to death.").
  This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet our ancient traditions and cultural heritage are instructive for the Court's interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments." It is proper that we acknowledge the overwhelming weight of authority in the Bible in favor of the juvenile death penalty. Cf. Zorach v. Clauson, 343 U.S. 306, 313 (1952) ("We are a religious people whose institutions presuppose a Supreme Being."). The opinion of our Judeo-Christian traditions, while not controlling our outcome, does provide respected and significant confirmation for our own conclusion. It does not lessen our fidelity to the Constitution to acknowledge that the express affirmation of certain fundamental rights recognized from the time of Abraham simply underscores the centrality of those same rights within our own heritage of freedom.
  My sense is that most people who have no problem with the Court citing foreign law would blow a gasket if this passage appeared in the United States Reports. You can imagine the reaction: What on Earth gave the Supreme Court the idea that they can rely on the Bible? This is the Constitution, not church! If some people want to believe in the Bible, that's up to them, but this is America and they can't foist that Bible stuff on me! Why the strong reaction? Not because "liberals" really only object to "conservative" results (although you can imagine the NRO column making this argument, can't you?). The reason, I think, is that Biblical text tends to be associated with one side of the sociopolitical divide and is not a traditional source of constitutional guidance. As a result, seeking "confirmation" of a constitutional holding in the Bible would send a message that the Justices are not just interpreting the Constitution — they would be doing more, expressing personal views as to which side of the sociopolitical divide they see as their own.

  To be sure, the analogy between foreign law as authority and the Bible as authority isn't perfect. I realize that. But I think it does capture why some conservatives feel so strongly about citations to foreign law in Supreme Court opinions.

Movie Locations:

My former student Kevan Choset poses the following puzzle: What are the highest-grossing movies set in (1) North America, (2) Latin America, (3) Europe, (4) Asia, (5) Africa, and (6) Australia [UPDATE: and (7) Antarctica]?

For the picky: I'm using U.S. [UPDATE: I originally erroneously said worldwide] grosses, in nominal dollars (not adjusted for inflation), as given on this site. Also, since a movie may have scenes on multiple continents — or for that matter in the oceans or elsewhere — I define the movie as being set somewhere if the majority of its are there or quite near there.


Cool Supreme Court Quote: From a concurring opinion by Justice Robert H. Jackson:
This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.
Douglas v. Jeannette, 319 U.S. 157, 181 (1943). Of course, one person's new story is another person's much-needed renovation. But still, a cool quote.

Saul Cornell Responds: —Ohio State History Professor Saul Cornell, who founded and heads the Second Amendment Research Center at Ohio State sent me the following response to my blog post on the Chicago-Kent symposium on the Second Amendment being funded by the Joyce Foundation:
I think you misinterpreted my earlier e-mail about my center. The Center includes all points of view on its web site. You will find that you and Eugene are both listed in the database on gun scholars.(I haven not listed Lott or Bellesiles for obvious reasons.) You will also note from my post on your blog via Eugene that the Fordham symposium included scholars from a number of approaches and viewpoints and that several individual rights people were invited. My comment to you in e-mail (don't you think you ought to ask permission before you blog?) had to do with funding new research. I think there is a difference between an obligation to present a full range of views and actually allocating limited research funds to encourage new research. Given that the gun lobby has plenty of money and places like CATO are strongly gun rights it seems a bit unfair to ask Joyce to fund your point of view. I would be happy to help the NRA fund decent research on the Second Amendment but they don't seem that interested in forking over any money. I don't see any evidence that CATO has been nearly as fair as I have and I don't see anyone on your blog who represents the collective rights view or the new civic rights paradigm. Perhaps you can explain why the fairness doctrine only applies to some folks, but not others? Do you have a coherent theory about how you approach this stuff? You may recall that Glenn's Standard Model issue did not have anyone from the collective rights point of view.
Because I think Saul largely missed the point of my original post, let me summarize:

(1) The main issue I addressed was denying that there was anything untoward about the Chicago-Kent symposium (a) bringing in an outside editor, or (b) paying an honoraria to the editor and contributors. It is standard practice there to do both.

(2) The secondary issue I addressed was the propriety of scholars accepting honoraria in general, and Joyce Foundation money in particular, to write about subjects they might other wise not have. My position was that, so long as they did not change their views to conform to the wishes of the donors—and I do not believe that any of these authors did so—then I said I saw nothing wrong with this—but the funding should probably be disclosed (as it was).

(3) I did fault Chicago-Kent for holding a deliberately one-sided event funded by a foundation that will only pay for one side to be heard--and then publishing the resulting papers in an entirely one-sided issue of its law review. I maintain that this runs counter to its mission as an academic institution.

(4) To substantiate the fact that Joyce does attach strings to its grants I related what was told to me by Saul Cornell in an email exchange. In my blog post I summarized this as follows:
When I asked its director, Saul Cornell, in an email exchange if any participants in its academic programs could advocate the individual rights position, he responded that he would obtain separate funding to permit that to happen. I took that as an indication that Joyce does put strings on its funding.
I did not quote the original email as I did not have permission from Saul to do so, but he has given permission now. As he thinks I have misunderstood him, here is the pertinent part of what he wrote:
Conferences organized for the Center will follow my Constitutional Commentary model, not Chicago-Kent. As you may recall I included Bob Shalhope in that because he was the historian most closely associated with the IR point of view. Obviously Joyce does not want to put money into the hands of gun rights people (that does not seem unreasonable) so the funds for participation of those folks will have to come from somewhere else.
So here is my response to Saul:

(1) I never mentioned the Fordham Law Review symposium. I have no background information to impart about its organization or funding. As I am not familiar with its composition--apart from what Saul wrote in his email to Eugene--I made no criticism of it earlier and make none now.

(2) My principal purpose for referring to the substance of Saul's email conversation with me was to substantiate that Joyce does indeed restrict its funding to persons who agree with its position on gun control, which is what I contend made it improper for Chicago-Kent to run a conference with this funding. I could imagine a conference half funded by Joyce and half by, say, the NRA, which would result in a balanced and academically respectable program. (Query: would Joyce have ever agreed to this? I seriously doubt it.)

(3) I also suggested, though in passing, that it is questionable for Ohio State to set up a "Second Amendment Research Center," largely if not exclusively, using funds that come from a foundation that will only fund one side of a legitimate academic debate. Saul's reply notwithstanding, I still believe this to be the case, but his situation is more complicated than that of Chicago-Kent, so let me address it further.

(4) Chicago-Kent took money from a foundation that will only fund one side of a legitimate academic debate and then held a conference to which its students were invited and published a law review issue that was entirely one sided. To me, this is clearly inconsistent with its mission as an academic institution. (I would have to know more than I do about the 1995 Tennessee symposium organized by Glenn Reynolds to know whether it was similar in this regard to what Chicago-Kent did. I do know that I wrote the Foreword for that Symposium (available here) and received no honorarium. Nor did I attend any live conference that may have been paid for by an outside source. The issue discloses no outside funding. But even if Tennessee somehow acted improperly, two wrongs do not make a right.)

In contrast, Ohio State set up an ongoing center largely, perhaps exclusively, funded by money that can only be used to pay for one side of an academic debate. If Joyce is the exclusive or main source of funding, I think this compromises the academic integrity of Ohio State. If the center also had a comparable amount of money that could be used to fund other approaches, this would complicate the issue. On the one hand, it would enable it to have somewhat balanced programs—as Saul says he strives to do. On the other hand, it would still make Ohio State financially dependent on satisfying the view-point position of Joyce in a way that the one-time conference I hypothesized above would not. If Joyce objects to the content of what the Center does, for example, by including divergent voices, it could withdraw its substantial funding. Because Ohio State would knows this, this would compromise its academic mission.

Now it is possible that Joyce made a substantial one-time grant—as opposed to providing ongoing funding—with no strings. This would be quite different. But I take it from Saul's original email that Joyce's funding is ongoing AND that Joyce will only fund scholarship with which it agrees. It is this arrangement and constraint that compromises the academic integrity of Ohio State.

(5) Saul asked in his reply: "Given that the gun lobby has plenty of money and places like CATO are strongly gun rights it seems a bit unfair to ask Joyce to fund your point of view." I do not expect Joyce to fund any point of view with which they disagree. It is not Joyce we are talking about, it is Chicago-Kent and Ohio State. Nor, to reiterate, do I have any problem with an individual scholar like Saul who agrees with Joyce accepting funding to support his or her academic research, provided the funding is disclosed. But Ohio State, like Chicago-Kent, is an academic institution, unlike Cato, or the Federalist Society. (I raised the Federalist Society because, even though it is not an academic institution, its programs have more balance than did Chicago-Kent's. (I did not compare the Fordham Law Review symposium to the Federalist Society—indeed, I did not mention that symposium at all in my post.)

Let me clarify this by posing the following question: Why did Joyce not organize its own conference, law review issue, or Second Amendment Research Center? The answer is plain: it wants its views to enjoy the academic respectability imparted upon it by the imprimatur of Chicago-Kent and Ohio State. It is that institutional imprimatur that enabled the Ninth Circuit to rely so heavily on articles published in the Chicago-Kent Law Review in his opinion in Silveira v. Lockyer. (BTW, the published opinion had to be modified later to remove its reliance on the discredited work of Michael Bellesiles.) This is what Joyce is buying from Chicago-Kent and Ohio State. This is what it is improper of these institutions to sell.

Unlike the Joyce Foundation, Cato has its own Center for Constitutional (not Second Amendment) Studies, its own law review (The Cato Supreme Court Review) and organizes many conferences and publishes many books. Cato's work product will inevitably be discounted in a way that a center at Ohio State would not be (unless it became widely known that Ohio State was indistinguishable from the Joyce Foundation which would defeat the purposes of both Joyce and OSU). This is the distinction that is of utmost importance.

Consider this analogy: Suppose Boston University established a "Second Amendment Research Center" funded wholly or principally by the NRA, which would only pay for individual rights scholarship. How would or should observers react to the work product of this center? Should it receive any greater imprimatur of academic respectability than a center within the NRA itself? Of course, we know why the NRA would want to establish such a center (who could blame it?), but why should BU want to establish so one-sided a center except deliberately to take sides in an academic dispute— that also has or will be before the courts?

If Saul truly cannot distinguish between a "research center" at a university (and a public one, no less) and a think tank like Cato, an advocacy group like the NRA or Joyce Foundation, or a blog like the Volokh Conspiracy, then there is more trouble with the Second Amendment Research Center than the principal source of its funding. But the fact that he says he would include diverse opinions in his programs (paid for somehow by other funds) and tried—albeit unsuccessfully—to include divergent views in the Fordham Law Review symposium suggests that he can tell the difference.

I conclude by offering the same thought experiment I did before: Would Ohio State want it to be known that all or most of the funding for its Center came from a foundation that would only fund a particular viewpoint? I think not. Or would OSU (or Joyce) want the center to be called "The Collective Rights Research Center"? It is to Saul's credit that he tries to include other voices by tapping other sources of funding. But that does not absolve Ohio State of the problem that it has sold its name to one side of an academic and legal debate, if that is indeed what it did.

Stephen Bainbridge Photoblogs on "Pro-Laborer" Postings at UCLA

here. You really need to see the pictures to get the picture, but here's the summary of his argument:

A group of UCLA students plan a student strike tomorrow in support of a one-day strike by UCLA service workers, whose union includes custodians and groundskeepers . . . .

In their zeal, the students have plastered these posters on sidewalks all over campus; e.g., in the sculpture garden . . . .

You will have spotted the irony, of course: the groundskeepers the kids purport to be supporting are the very people who will have to get these glued-down posters off the sidewalks. . . .


But This One Goes To Eleven: An interesting story on results of the new SAT tests, which now have three sections and a perfect score of 2400 instead of 1600.

Stefan Beck on Intellectual Diversity:

On NRO.


A Constrained Vision:

Just came across a cool blog that I hadn't seen before--"A Constrained Vision." (Hat Tip: Tyler Cowen at Marginal Revolution)

Definitely some good stuff there, but mainly this is just an excuse to mention one of my favorite books, Thomas Sowell's, A Conflict of Visions. Not only do I find it profound and insightful, but I have found it essential reading as a professor, especially one who teaches from a law & economics perspective.

Sowell distinguishes between what he calls the "constrained vision," which sees the world in terms of trade-offs and inherently tragic choices (i.e., you can't "have it all"). The "unconstrained vision" sees the world in end-state terms, and says we should fix problems when we find them. For fans of Robert Pirsig's "Zen and the Art of Motorcyle Maintenance" you will see a similarity between Sowell's categories and Pirsig's "classical" and "romantic" versions.

So, for example, consider something like famine relief in Africa: the unconstrained vision says, "people are starving, give them food." The constrained vision says, "people are starving, but if we give them food, that just means that we will have to give them food again next year, because we will destroy domestic farmers who can't compete with free food." Note, neither of these approaches are necessarily correct, they are simply different and raise different questions. Sowell says, I think correctly, that most people resolve these difficult normative questions at a subconscious level that just automatically focuses us to either focus on the starving people today on one hand, versus the tradeoff of starving people tomorrow on the other. Often we are not even aware of how we draw these tradeoffs.

So why do I think that Sowell is essential reading for law professors (and lawyers, for that matter)? Because during our lives about half the people we interact with will have the opposite "vision" from us. So, if you are a law & economics guy (like me), you are naturally attuned to the constrained vision. And one reason why law & econ seems so foreign to so many is because many lawyers hold the unconstrained vision--they are concerned about pursuing justice and rectifying injustice, not hearing about tradeoffs and limitations. So unless the holder of the constrained vision can respond to the concerns of the unconstrained vision as well, then this is just two ships passing in the night.

One could easily tick down the Supreme Court, for instance, and for those with a coherent and consistent jurisprudence quickly place most of the Justices in a constrained versus unconstrained box (Scalia, Thomas, Rehnquist constrained; Souter, Brennan, Warren unconstrained).

Many professors and policy-makers can get trapped in their own vision, without realizing that their vision is not shared by all. I think this is one reason why economists often are unable to do more influence policy.

When I was in grad school, one of my professor remarked about the economic inefficiency of mandatory environmental recycling, "Arguing that recycling is economic inefficient is like arguing that communion wafers are not nutritious." The point is that the argument is simply unresponsive to the underlying concern of the person with whom you are conversing.

So, to make the long story short, read Sowell. To make it even shorter, I think we can all gain from recognizing our own particular visions and the need to relate them to the similar or dissimilar visions of those around us. And in the meantime, visit the "A Constrained Vision" blog.


Why Summers Apologized:

Why did Larry Summers issue such an abject and, frankly, embarrassing apology for the controversial remarks he made regarding women in the sciences? I don't think he really had to. My theory is that he thinks of himself as a man of the left, and was very uncomfortable with the praise and defense he was getting from the right, and the obloquy from those he considers his natural friends on the left.

A bit of evidence in support of my theory: you can watch a video of President Summers welcoming the national Federalist Society student meeting to Harvard Law School. The students gave Summers a standing ovation. Summers looked extremely embarrassed, almost flummoxed, and stated: "Thank you very much, I think. Let me remind you, I am a Democrat. I am proud to be Democrat."

If Summers puts his self-image as a "progressive" above his pursuit of truth in the face of political correctness, there's not much the rest of us can (or should) do to defend him.


Tony Soprano's Solution to the Bankruptcy Crisis:

Syndicated columnist Debra Saunders has a confused column today in The Real Times about the bankruptcy reform legislation. Not only does she seem confused about the impact of the bill, but she seems utterly confused about economics of consumer lending. Like a vampire arising from the dead, Saunders invokes new usury restrictions on credit cards as the solution to the consumer bankruptcy crisis:

Consider this: The Senate rejected a measure to cap credit-card interest rates at 30 percent. Now, I ask, why should Washington want to protect lenders, who charge desperate people as much as 36 percent in per annum interest?

The lending lobby — Big Borrow-mongers — claims it needs protections against deadbeats, who file for bankruptcy without even trying to pay off their debts. I would sympathize ... if the money lenders weren't so rapacious — shameless, really — about fleecing the poor.

Why doesn't Washington cap credit-card interest rates at 30%? Because Washington apparently realizes what Saunders does not--that usury restrictions usually hurt those who they purportedly are intended to help, and injure "desperate people" the most. Since Ms. Saunders apparently missed Introductory Economics in college, herewith a very brief primer on the effects of price controls in consumer credit markets.

The analysis presented here draws heavily on a major article that I published a few years ago, "The Economics of Credit Cards," which contains a more in-depth analysis of the issue.

Imposing price controls on credit card interest rates will have three predictable consequences:

1. Term repricing: First, regulating some terms of a consumer credit contract will lead to repricing of other, unregulated terms. So, for instance, prior to the Supreme Court's decision in Marquette National Bank in the late-1970s, many states had strict usury regulations on the interest rates that could be charged on credit cards. The result was a variety of repricing of other terms, to offset the inability to charge market rates of interest. So, for instance, credit card issuers charged high annual fees for ordinary credit cards--usually $30, $40 or higher, in order to make up for the losses on the rate of interest they could charge. In fact, when usury restrictions were effectively repealed by Marquette, the first thing that disappeared were these annual fees (today, only "reward" cards, such as frequent flyer cards, have annual fees, which are used to cover the administrative costs of the reward program). Credit card issuers also changed the way they measured the grace period for consumers to pay their bills, adopting a new measurement of the grace period that effectively shortened the time in which a consumer must pay his or her bill in order to not be late. And, of course, credit cards offered very little in the way of the sorts of benefits we see today--car rental insurance, 24 hour customer service, etc. Limiting interest rates can be expected to result in term repricing of other, less transparent terms of the contract.

Finally, usury restrictions provided a competitive benefit for department stores and other companies that directly extended credit to their customers. A store like Sears, for instance, could simply jack up the price of the goods they sold to make up for the losses that they suffered on their in-house lending activities. If you regulate the cost of credit, but not the cost of goods (like a refrigerator or washing machine), then all you have done is shift around the credit costs to a less-obvious source. And, of course, it is again the "most desperate" who are likely to have to use store credit to buy an appliance or the like.

Note also, that to the extent that interest rates are limited and annual fees are adopted, this will have the exact opposite effect of what Sauders wants to happen--this will encourage greater borrowing for consumers and a subsidization by transactional users who pay their bills every month to revolvers.

Are consumers as a whole--including poor consumers--by having an interest rate cap, but a $40 annual fee? Or no annual fee and higher interest rates? Its not obvious, but the evolution of the market suggests that most consumers would rather have no annual fee and a higher interest rates. And, of course, transactional users unambiguously prefer that.

2. Product substitution: Making it harder for "desperate people" to get a credit card doesn't make their need for credit disappear. If they can't get a credit card, then they have to turn somewhere else for credit, such as payday lenders, check-cashers, pawn shops, or loan sharks. And the cost may be much higher than 36%. If your transmission blows, you still have to pay for it, regardless of whether you are rich or poor. Are "desperate people" made better off by having to rely on payday lenders, pawn shops, or Tony Soprano to make ends meet? Doesn't seem like it to me.

In fact, the empirical evidence of the effect of usury restrictions indicates that exactly this sort of substitution takes place under usury restrictions. So, for instance, in the 1970s, Arkansas had the strictest usury restrictions in the country--and was also the pawn shop capital of America.

Similarly, as I noted in an earlier post, the rise of credit card borrowing over the past two decades has been primarily a substitution for other, less-attractive forms of credit, such as high-cost personal finance companies (which have even higher interest rates than credit cards), and retail store credit (such as described above), rather than an increase in overall indebtedness. This pattern of credit card substitution for other debt has been equally applicable to lower-income households. See Wendy M. Edelberg & Jonas D. M. Fisher, Household Debt, 123 CHICAGO FEDERAL LETTER at 3 (1997)(“[I]ncreases in credit card debt service of lower-income households have been offset to a large extent by reductions in the servicing of installment debt.”).

3. Credit rationing: To the extent that borrowers and lenders cannot reprice the terms of their credit contracts, and to the extent that poor and high-risk consumers can't shift to other forms of credit, such as pawn shops, rent-to-owns, and layway plans, they will suffer a reduction in credit overall. It is not clear how this helps poor people.

On the other hand, usury restrictions do appear to be good for the middle class and upper-middle class, so perhaps that is why they are popular with those like Saunders. To the extent that usury restrictions make lending to poor people less profitable, empirical evidence indicates that the supply of money for consumer lending tends to shift into prime lending markets, thereby reducing the borrowing costs of low-risk, high-income borrowers. So while a lot of us higher-inocme folk might be pretty keen on making poor people subsidize our mortgages and credit cards, it is not clear to me how that improves the lot of the "desperate" poor out there. See William J. Boyes, "In Defense of the Downtrodden: Usury Laws?, 39 PUBLIC CHOICE 269 (1982).

The Normative Tradeoff: So there is a clear tradeoff here. Yes, capping interest rates on credit cards will certainly cause credit card interest rates to go down. But it will also cause other fees (such as annual fees) to go up, will force the most desperate borrowers into into the arms of pawn shops and payday lenders to make ends meet, and will tend to decrease the amount of credit available to poor borrowers (although subsidizing middle-class borrowers).

And sure, you could add regulation of additional terms--such as late fees, or whatever. But that doesn't change the fundamental underlying tradeoffs, because every consumer credit contract has dozens of terms that can be repriced and there are a panoply of competing consumer credit products out there in the market.

So, in the end, there is a normative tradeoff--do we think that consumers as a whole, or poor consumers, are made better off by price controls of some of the terms of a consumer credit contract, knowing that it will be impossible to regulate all of the terms and that in the end, poor people need credit just as much as anyone else? As with all such normative tradeoffs, our moral intuitions will differ--Saunders quite obviously thinks she would sleep better at night knowing that poor people won't have to pay high credit-card interest rates (its not clear what she thinks about pawn shops). Quite plainly, I think such a tradeoff is outrageous and will hurt poor people more than it helps them. Moreover, the overwhelming conensus among economists, going back until at least Jeremy Bentham, is that usury restrictions are bad economic policy.

"Toadying to Big Business"? More fundamentally, given these tradeoffs, it is plainly the case that the Senate acted reasonably in rejecting the price-cap amendment that Saunders is so lathered up about. It would have been reasonable for the Senate to accept the price-cap as well. But obviously the Senate decided that the costs of a price cap exceeded the benefits and acted accordingly. Certainly, Saunders's assessment seems absurdly overblown:

As a Republican, it disappoints me to say this, but I understand why people call the GOP the party of big business. When Washington pushes for more responsibility among debtors, but not loan-shark-like lenders, when its "ownership society" principles don't make big corporations own up to their role in the bankruptcy problem, the GOP is toadying to big business. (Ditto the 18 Democrats and one independent senator who voted for the bill.)

Her criticism of "loan-shark-like lenders" seems especially misplaced given that one possible result of her proposed solution would be to increase business for real loan sharks.

What the Bill Does: Instead, Sections 1301-1309 adopt a disclosure-based compromise to the problem. These sections require new and enhanced disclosures related to various aspects of credit cards, such as introductory rates, late payment deadlines and penalities, and Internet-based credit card solicitations, as well as enhanced disclosures on "credit extensions secured by a dwelling." While some might want to do more, notwithstanding the harm it would cause to the poor, under the circumstances, enhanced disclosures certainly seems like a reasonable compromise, and certainly is not mere "toadying to big business."


What Are College Students To Do,

when they're offended by pictures of aborted fetuses being distributed on campus? Why, call the police, of course:

Protesters handing out anti-abortion pamphlets on campus caused a series of complaints to local police Wednesday.

Director of Public Safety Jerry Stewart said ISU Police received 12 phone calls within one hour on Wednesday afternoon from people objecting to graphic images displayed on posters and handouts from a group of people objecting to abortion.

Abby LaCombe, senior in political science, was approached by the group and said she was upset by its protest.

"[I told them] every time you come to our campus it just creates a deeper schism," she said. "There's better ways to go about speaking your message."

Sarah Foster, senior in mechanical engineering, said abortion was not the only subject the group was protesting.

"This [was] anti-choice, anti-women, anti-everything," she said.

The pamphlets, from the Milwaukee-based group Missionaries to the Preborn, included information on abortion, birth control, breast cancer, opposition to Planned Parenthood and contained photos of aborted fetuses.

It's not clear whether Ms. LaCombe and Ms. Foster were among the 12 people complaining to the police; but I would have hoped that the 12 college students must have realized that there's nothing illegal about displaying disturbing pictures as part of one's political argument. I guess I would have hoped in vain.

Fortunately, the police knew better. "While the images that appeared may be objectionable to a number of people, they appear to be legal," Stewart said. Funny that -- some objectionable speech is actually legal, even though it offends some college students! What is the world coming to?


Supreme Opportunity Cost: Sometimes we overly diminish the role of individuals when assessing historical developments. That Ronald Reagan was in a position to be President when he was probably changed the direction of the Republican party (and the US) for decades. Because of his distinctive personal characteristics, Bill Clinton was able to get elected when other Democrats of similar views are not. As President, he also signed on to a welfare reform bill—and brought along enough Democrats in Congress—that contains far more radical reform than anything President Bush has managed to achieve. In short, individuals matter.

I have long bemoaned the opportunity cost of the aborted Supreme Court nomination of Judge Douglas Ginsburg of the D.C Circuit Court of Appeals. Nominated in the wake of Robert Bork's defeat, Ginsburg was pressured (rumor has it by then-Drug "Czar" Bill Bennett) to withdraw his name when it was disclosed by Nina Totenberg (whose speaker's agent brags about it here) that he had smoked marijuana in the presence of law students when he was a professor at Harvard Law School. Anthony Kennedy was nominated in his place.

What happened to Judge Ginsburg was a tragedy for liberty, and a terrible injustice to a very decent man. Without casting any aspersions on Justice Kennedy, I really wish that now-Chief Judge Ginsburg, the most libertarian Supreme Court nominee in the modern era, had been on the Court these past 15 years. At any rate Ex Post yesterday posted a nice talk by Judge Ginsburg.

Related Posts (on one page):

  1. Rumor Update:
  2. Supreme Opportunity Cost:

Tuesday, April 12, 2005

How Much Bankruptcy Fraud is There?

Although most of the debate over the bankruptcy reform legislation has focused on the means-test and the problem of bankruptcy abuse, the bulk of the consumer provisions are dedicated to the much more mundane, uncontroversial, and damaging problem of bankruptcy fraud. The biggest problem, as one might expect, is simply hiding assets from creditors and the court. Tom Blumer at Bizzyblog has nonetheless suggested that perhaps the bankruptcy fraud problem is minor. Here's a quick roundup on the estimates of bankruptcy fraud I have been able to find with a moderate degree of searching:

The FBI estimated a decade ago that about 10% of consumer bankruptcy cases have some sort of fraud:

Bankruptcy laws were put in place to protect businesses and individuals from losing everything they owned in the event of financial failure. But who protects us from those who use this system to defraud their creditors and actually get rich through bankruptcy? Some people duped the bankruptcy courts with fabricated petitions and testimony resulting in unpaid debts and money in their pockets. Bankruptcy fraud costs businesses and taxpayers billions every year.

A wider acceptance of bankruptcy in this country, as well as a changing economic climate, has led to a 500 percent rise in bankruptcy filings since 1973. About 10 percent of all bankruptcies involve fraud. So in 1995 alone, almost 250 fraudulent bankruptcies were filed every day. Bankruptcy fraud schemes include the hiding of assets, false statements, multiple filings, forged petitions and petition mills that crank out phony information. Two-thirds of all bankruptcy fraud involves hidden assets.

A few years ago the IRS endorsed the 10% figure:

The Bankruptcy Reform Act of 1978 restructured the bankruptcy court system and overhauled the nation’s bankruptcy laws to more closely conform to modern commercial transactions. Since these changes liberalized debtor access to bankruptcy relief, annual bankruptcy filings have increased from approximately 300,000 in 1980 to approximately 1.4 million in FY2001. The increasing number of bankruptcy petitions filed has been accompanied by a correlative increase in bankruptcy fraud.

Industry experts estimate that 10% of all bankruptcy petitions contain some elements of fraud. This results in serious consequences which undermine public confidence in the system, taint the reputation of honest citizens seeking protection under the bankruptcy statutes, and have a negative impact on voluntary compliance in our income tax system. With so much at stake, the detection and prosecution of bankruptcy fraud continues to be a priority for the IRS, as well as the Department of Justice.

A recent analysis by SMR Research states that this probably underestimates the extent of fraud in the system. (Note: This is a summary of a bankruptcy fraud study which is for sale, and which I haven't purchased, so this is from the summar on the SMR Research website):

We gathered a random sample of Chapter 7 petitions in 24 states, all filed the same day: June 5, 2002. It was the day in the middle of the worst year for filings. Our sample size was about 7.9% of all the Chapter 7 filings of that day.

All the cases we studied were successfully discharged.

We created a database of asset, debt, income, and living expense numbers and looked at the statistical results. We also did something judges don’t always do: We read some of the petitions carefully.

The FBI estimates that 10% of bankruptcy filings involve fraud of some kind. But fewer than 0.1% of filers are convicted. And our statistical analysis suggests that even the 10% fraud estimate is probably low.

For people who are in bankruptcy because of poor financial planning skills, apparently some bankruptcy filers can make some pretty accurate calculations:

9.5% of filers claim that, in a wild coincidence, their bankruptcy fees of about $1,000 were their last cash, down to the penny. Nearly one-third of filers claimed they were nearly penniless after paying these fees.

And SMR notes some interesting case studies:

Among individual petitions, one after another stretched credibility to its limits. We illustrate with 30 case studies, all pretty clear stuff. Check James, who had $800,000 of unsecured debt but claimed the assets he acquired were gone after being struck by lightning. Russ in California had no job, no income, and no cash but somehow maintained his monthly gym membership. Brian owed money on a hot tub he claimed was stolen (by a gang of patient thieves, apparently; it takes hours to drain one and at least six large men to lift the shell.)

Bob and Susan had $120,000 of annual income but couldn’t pay their debts for one big reason: $826 per month they spent on a SeaRay boat. Still, they reaffirmed the boat loan. Alexis filed, owing only $2,088 in total debt, even though she had a good job and could have paid half the debt with what she spent on lawyer and filing fees.

Note again that every debtor in the study received a discharge, even Brian, the unfortunate victim of hot tub theft.

In a positive note, the DOJ appears to be ramping up its efforts to rein in bankruptcy fraud. (See, for instance, Operation Silver Screen.")

Update:

Apparently my skepticism about the plausibility of hot tub theft was unwarranted. A reader writes: As for the hot tub theft, we get them fairly often in this neck of the woods. The thieves drive up to the back of the house with a pick-up. Jack up the side of the hot tub so the water runs out. Toss the hot tub on the back of the pick-up and drive off. A hot tub like the ones at SAMS can be stolen in less than five minutes and resold for at least $300.00.


Subsidized Political Activism at Bucknell:

Evan Coyne Maloney at Brain-Terminal has the story from the front lines at Bucknell. He writes:

Last year, Bucknell's Women's Resource Center sponsored a bus trip so students could attend a political rally in Washington, D.C. to protest the Bush Administration. *** When some female students saw that the WRC was in the business of arranging trips to political protests, they asked for similar help setting up a trip to a rally with a different political philosophy. The students were turned down. Feminism is supposed to be about allowing women to make choices, but apparently there are some choices the WRC doesn't want women to make, such as how to think politically.


Videos Challenge Accounts of Convention Unrest:

New York Times article reports problems with arrests of protestors at Republican National Convention. (Hat Tip: Sean Sirrine at Objective Justice).

Among t[those arrested] was Alexander Dunlop, who said he was arrested while going to pick up sushi.

Last week, he discovered that there were two versions of the same police tape: the one that was to be used as evidence in his trial had been edited at two spots, removing images that showed Mr. Dunlop behaving peacefully. When a volunteer film archivist found a more complete version of the tape and gave it to Mr. Dunlop's lawyer, prosecutors immediately dropped the charges and said that a technician had cut the material by mistake.


Impeach Nino: As every right-thinking person knows, the judiciary recently has run amok. It's high time we did something about it. I think the solution is clear: we need to impeach Justice Antonin Scalia.

  If you think about it, Justice Scalia is directly or indirectly responsible for many of the problems with the modern judiciary. Not only did Scalia personally fail to intervene in the Schiavo case, ignoring the will of Congress, but he has repeatedly urged judges to simply ignore Congressional intent. He refuses to cite legislative history, woodenly following the "text" rather than deferring to clear statements of what Congressional leaders intended to do. This kind of judicial hubris is simply unacceptable.

  Scalia is even worse in the area of constitutional interpretation. His activist opinions have invented new constitutional rights for marijuana growers, given thousands of convicted criminals a "get out of jail free" card, and tried to limit the President's ability to fight the war on terror. In addition, Scalia has relied heavily on foreign legal sources to interpret allegedly ambiguous provisions of the Bill of Rights (see part II.A). Indeed, Scalia's contempt for our system of Government is so great that he admits he wants to see the Constitution "dead."

  The American people deserve better than Scalia's satanic Marxist activism. It's time to impeach Nino.

We're number #5448!

Woohoo! Just checked the amazon.com rank on my Academic Legal Writing, and it turns out to be #5,448 -- not Stephen King, but still a bit under 30 per week, according to this site. We specialty book authors are easy to please.

Incidentally, this is a good opportunity to remind people: If you're planning to compete for law review right after Spring exams -- the schedule that many journals adhere to -- you should start preparing now. My close personal friend Law Review Lara has tips, copied from the Second Edition of Academic Legal Writing (personalized copies of which are still available, in plenty of time for post-exam write-ons).


What Inconsistency?

Clayton Cramer disagrees with Eric Muller's position on the religious book in the school library, but then goes on to say:

Professor Muller's liberalism is really shining! Here's another book that he wants not available: Michelle Malkin's In Defense of Internment, which is offered for sale at the Manzanar book store.

Muller compares Malkin's book to David Irving's work; this is absurd. Malkin isn't denying that the internment happened; she is making an argument that it made sense under the circumstances. You can disagree with her argument without calling her a liar.

I take it that Cramer is suggesting that Muller is somehow being untrue to his own "liberal" principles, but I don't quite see why. It seems quite reasonable to argue that the Manzanar book store, like other specialty government-run bookstores at historical sites, should only carry generally accurate history books.

The bookstore must necessarily choose which books to carry: Presumably it doesn't carry every book ever written about the Japanese internment, but only those that it thinks are helpful to casual lay readers. And many of these readers are likely to read one book on the subject, rather than reading several to decide for themselves which are right and which are wrong. If Muller is right that Malkin's book is highly inaccurate -- even if it isn't as inaccurate as books that deny that the Holocaust took place -- then why should the government propagate such inaccurate views?

Now there may well be some liberals who have articulated hardline views that any refusal by the government to carry a book, in any government-run bookstore or library, is a First Amendment violation (or is otherwise inappropriate). But I have no reason to think that Muller is one of them. What reason is there to condemn him for any supposed inconsistency with his "liberalism"?

Related Posts (on one page):

  1. What Inconsistency?
  2. Is This a Book Banning?

Interesting Philosophy Finding:

As we know, "the first thing about philosophy is 'It’s not the answers, it’s the questions.'" This should lead serious students of philosophy — or perhaps of the anthropology of philosophy — to ask: What is the question that philosophers (let's define the field for now as people with undergraduate degrees in philosophy) are asking most often?


The "Dreck" Motion:

Mark Kleiman posts it and follows up here. Judge Kozinski and I didn't include it in our Lawsuit, Shmawsuit — either the original Yale Law Journal version or in the version republished in the Annals of Improbable Research or on the Web, because we focus there on Yiddish in court opinions. But it's an amusing read.


Funding of Chicago-Kent Symposium on the Second Amendment: As a former member of the Chicago-Kent faculty, I thought I would add some background on the issues raised by David Hardy (and commented on here by Eugene) concerning the funding of the symposium on the Second Amendment that appeared in the Chicago-Kent Law Review.

I was one of the faculty members instrumental in converting the Chicago-Kent Law Review from a normal law review—in a short essay I dubbed it a "moot law review"—into an "all-symposium" law review with faculty editors. In addition to eschewing submitted articles in favor of soliciting writings to be written for symposia, each issue would have a faculty editor whose principal responsibilities were proposing a topic, inviting the authors, writing a foreword, and sheparding the writing of the papers. Another innovation was that both the faculty editors and the contributing authors were paid an honorarium. In the beginning all faculty editors were to be outside the Chicago-Kent faculty, but eventually this policy was relaxed and some editors were in house. I myself organized two symposium issues. The first was on the Ninth Amendment; the second (edited with Jules Coleman) was on "Post-Chicago Law and Economics." As a result of these reforms, the Chicago-Kent Law Review went from a journal that no one ever read to one of the top-cited scholarly journals in the country.

Given this institutional arrangement, there is nothing untoward about an outside faculty editor, like Professor Carl Bogus, being paid to organize a symposium issue in which he and the authors are paid honoraria.

Of course, all honoraria were originally paid by the law school, not by a foundation, but again I see no problem with this practice, so long as the law school does not cede to the foundation editorial control of the issue that is published in the law school's name.

When I saw an announcement for the Second Amendment symposium funded by the Joyce Foundation, what immediately struck me was the completely one-sided composition of the contributors. So I contacted a former colleague of mine at Chicago-Kent and offered to participate as a commentator, provided I was given the same remuneration as other presenters. I also offered to recruit some other scholars who would represent some diversity of opinion. My erstwhile colleague said this was not possible. The first reason he offered for this was the supposed lack of civility between pro- and anti-individual rights scholars. When I objected to this reason, it became clear that this was not the real rationale. Later, Carl Bogus told me (as he has subsequently written elsewhere) that the lack of balance was intentional and meant to counter the overwhelming dominance of the individual rights position. The idea, he said, was to work out the alternative paradigm with scholars who were dissenters from the individual rights position and provide fresh thinking:
We felt that, for a variety of reasons, the collective rights model was under represented in the debate, and wanted to give scholars an opportunity to enhance or further illuminate the collective rights position. Sometimes a more balanced debate is best served by an unbalanced symposium. I did not, therefore, invite anyone who I knew subscribed to the individual rights model.
This saga raises a number of questions that scholars ought to ponder:

Is accepting honoraria for writing papers unethical? For obvious reasons, I strongly reject this position. Legal scholars are entitled as anyone else to be paid for their work, and to choose to participate in a program, which they might otherwise decline to do were they not paid.

Is accepting honoraria from a foundation, like the Joyce Foundation, that will support only one side of an issue unethical? So long as one does not change one's views to conform to the funding source's preferences, I do not think so (though I do think one should disclose one's funding sources to allow readers to evaluate for themselves whatever impact it may have on one's analysis). I do not see why foundations who wish to advance a particular view cannot ethically support the research of those who otherwise agree with its agenda. Ultimately, the soundness of one's scholarship should depend on the reasons and evidence one puts forth, not the source of any financial support one may have received. I think this is true even if the honoraria induced a scholar to write about an issue he or she would not otherwise have done, which I think probably applies to a number of contributors to the Second Amendment symposium. I feel the same way about campaign contributions. Contributing money to the campaign of politicians with whom one agrees does not corrupt the politician, unless he or she was already corrupt. Michael Bellesiles, who was paid to contribute to the Chicago-Kent symposium did not fabricate his evidence because the Joyce Foundation was paying him. He was a corrupt scholar before and after this payment was made.

Was Chicago-Kent at Fault for Publishing This Symposium? Here I think the answer is probably yes. Chicago-Kent, and the journal it publishes, purports to be an academic institution committed to the pursuit of truth. It is not an advocacy group, and it publishes an academic law review that benefits from the perception that it is not an advocacy journal. By mounting a deliberately one-sided symposia it did a disservice to its readers, its academic community, and most especially to its students who were free to attend what was a deliberately one-sided conference.

I also think that accepting funds from a foundation that limits the participants to those holding a particular view is in conflict with its mission as an academic institution. If the Joyce Foundation limited participation to one side of this academic dispute, or if Chicago-Kent did not bother to know that this money could only be spent to fund one side of the dispute, then it made a serious mistake. There are indications that the Joyce Foundation refuses to have any dissenting voices included in its programs. Indeed, it is reported to have protested the appearance at Chicago-Kent of a pro-individual rights speaker within a few weeks of its symposium. The Joyce Foundation also supports the Second Amendment Research Center at Ohio State. When I asked its director, Saul Cornell, in an email exchange if any participants in its academic programs could advocate the individual rights position, he responded that he would obtain separate funding to permit that to happen. I took that as an indication that Joyce does put strings on its funding. (David Hardy quotes and links to the mission statement of the Joyce Foundation here.)

While there is nothing unethical about an advocacy group like the Joyce Foundation running one-sided programs—it is done all the time by groups on all sides of every issue—I think this sort of advocacy funding is inconsistent with the scholarly mission of an academic institution like Chicago-Kent or Ohio State. Imagine the effect on the institution's reputation if not only the funding, but the implicit or explicit strings were disclosed. This is an indication that accepting funding with substantive strings attached is improper for an academic institution.

To be clear, I do not think that the source of funding, and the bias of the resulting program makes it unethical for a scholar to accept an honorarium from an institution that has compromised its academic integrity in this way. Nor does one-sided funding necessarily compromise the integrity of a scholar's work-product, which should be judged on the merits of its arguments and evidence. Again, there is nothing wrong with seeking research funding from sources who agree with your approach, or a foundation seeking to support and encourage scholara who are sympathetic to its approach.

But there is a big difference between the work product of an individual scholar, and the collective work product represented by a symposium sponsored by an academic institution like Chicago-Kent. This issue not only is weaker intellectually than it might have been, but it falsely suggests a uniformity of opinion on the subject it examines. Since the symposium was open to Chicago-Kent students, I wonder if they were informed that the program was deliberately designed to be one-sided. Aren't students (or readers of the law review) entitled to know that they are being provided a deliberately biased stream of information? Here I think the fault and discredit lies entirely with the academic institution.

What is Value of Diversity in an Academic Institution? I think the Second Amendment symposium issue suffers not from its funding, but from the one-sided intellectual process that produced it, regardless of whether it resulted from foundation strings, or simply the strategy of its organizers. Ultimately, with no knowledgeable dissenters at its conference pointing out inconvenient evidence—of which there is a great deal—the arguments it presents are necessarily less informed and weaker than they would otherwise be. Certainly they are less informed than an academic institution like Chicago-Kent would want it to be. I believe this was the case with this issue of the Chicago-Kent Law Review, though I have not read it in its entirety. In contrast, when I organized a symposium on the Ninth Amendment, I was careful to invite scholars who would be expected to (and did) take widely divergent views on its meaning and relevance.

Indeed, the Federalist Society—which does not purport to be anything other than a viewpoint-driven organization—consistently strives for diversity on its programs. Its conferences routinely feature divergent opinions on each panel. When inviting speakers to campus, students are encouraged to arrange debates or solicit critical commentators from their own faculties. Those participants in its programs who have different views are treated cordially and respectfully, sometimes to their great surprise. The programs that result from this diversity are far more interesting, and of better quality, because of this planned diversity. An academic institution like Chicago-Kent should strive to do no less.

Is This Really "Switching Sides"?

Slate's Human Nature -- which I generally much like -- contains this item:

Liberals and conservatives switched sides on silicone breast implants. At an FDA hearing, supporters of traditional femininity defended a woman's right to choose such implants, even with a health risk. Pro-choicers on abortion argued that the implants were too dangerous to legalize universally.

Really? I don't think that "supporters of traditional femininity" have ever rejected a woman's right to choose things that might be risky to their health. I don't think such supporters ever had a consistent views on breast implants as such, but they haven't, I think, taken a paternalistic view on mere health risks. Pro-life forces oppose abortion because of its effects on the health (and more) of the fetus, not chiefly of the woman.

Some of them have argued (whether rightly or not) that abortions may be dangerous to the woman, perhaps hoping that this may make abortions seem less appealing. But the ultimate reason to make abortions less appealing is to save the life of the fetus. (This isn't much different from animal rights activists, some of whom may argue that eating meat is bad for you, but who do so chiefly in the service of protecting animals.)

The case for something of a switch by some pro-choice people is a bit stronger: If they really articulate abortion rights as simply a woman's nearly absolute right to control her own body (as some pro-choice advocates) do, then they should also take the same view as to potentially dangerous surgical procedures.

But the strongest pro-choice arguments -- and, I think, the true views of most pro-choice advocates -- aren't just that a woman has a right to control her own body. Rather, they also focus on the magnitude of the burden that an unwanted pregnancy, and the creation of an unwanted child, imposes on the woman. That's why many pro-choice people aren't also pro-drug-legalization: Snorting cocaine also relates to what you do with your own body, but unwanted abstinence from cocaine is generally seen as a much lesser burden than unwanted pregnancy. Likewise, that one thinks women have a right to avoid an unwanted pregnancy doesn't mean that they have a right to seriously risk their own health for merely cosmetic purposes. (The matter is more complex when the issue isn't just increasing the breast size of healthy but small breasts, but reconstructing breasts after a mastectomy, but I set that aside for now.)

Now as it happens, I think there's a strong case against the paternalist view, and in favor of letting women risk their health even for cosmetic reasons. But one can easily be a paternalist generally and pro-choice on abortion rights -- it's not switching sides or straddling the fence, I think, to hold such a view.


Interesting Legal Issue for Exhibitionists in Alabama: In Huntsville, Alabama, a lawyer and his girlfriend were arrested and convicted of indecent exposure for having intimate relations in a pickup truck parked outside someone's private home. The story in the Huntsville Times mentions the text of the Alabama indecent exposure state in passing, and a closer look on Westlaw confirms an interesting quirk. The law, Ala.Code 1975 § 13A-6-68, says the following:
A person commits the crime of indecent exposure if, with intent to arouse or gratify sexual desire of himself or of any person other than his spouse, he exposes his genitals under circumstances in which he knows his conduct is likely to cause affront or alarm in any public place or on the private premises of another or so near thereto as to be seen from such private premises. [emphasis added]
  In this case, it is clear that the lawyer and his girlfriend satisfied the requirement that they have "intent to arouse or gratify sexual desire of himself or of any person other than his spouse." But I wonder, what would a court do if the defendants had been married? Would criminal liability hinge on whether the defendants were generous lovers?

  Thanks to Will Work for Favorable Dicta for the link.

Is This a Book Banning?

Under the American Library Association's definitions, presumably it would be. I wouldn't say that -- I don't think removing a book from a school library is properly called "banning," and I don't think it should be seen as violating the First Amendment (notwithstanding the opinion of four Justices in Board of Ed. v. Pico (1982)). Here's the full story, from Eric Muller (IsThatLegal?):

Not long ago my daughter came home from public elementary school with "Journey to Japan," a book she had checked out of its library. My daughter is in the third grade. The book is not simply available, but on a special shelf of books that kids get a sort of "extra credit" for reading and answering questions about. . . .

(. . . I have asked that my daughter's school remove this book from its shelves, and they have done so on at least an interim basis while their library committee reviews it.)

In Journey to Japan, a home-schooling American Christian family travel to Japan. There they meet a Japanese girl named Yoko. The American family quickly learns that Yoko is in some sort of conflict with her parents, especially her stern father.

The American kids keep hearing about this strange religion called "Buddhism," but don't know anything about it. The main thing they learn is that Buddhists worship many gods, not one. "What if they choose not to believe in Buddha?" the young protagonist asks an American adult. "They don't have that choice," the adult explains. The protagonist confesses that she finds the Japanese religion "confusing."

The conflict between Yoko and her father intensifies through the book, and the reader learns that Yoko is stealing off to some undisclosed location each night. The American kids learn that Yoko's father condemns her as a "rebel" and a "bad person."

There is some discussion among the Americans about Buddhist and Shinto religious practices, and the protagonist comments that these practices "all seem kind of confusing." "That's probably why Yoko won't go [to the Buddhist and Shinto services] anymore," an adult explains.

The source of the tension between Yoko and her father is revealed in Chapter 9, when the Americans go to a Japanese Christian church and find Yoko there.

It suddenly dawns on the protagonist: "Yoko was not a bad person-—she was a Christian!"

Yoko explains her situation to the Americans: "When I was a little girl, I went to a church down the street for Bible school on Sundays. My parents let me go. . . . It wouldn't hurt me, they'd say. By the time I was twelve or thirteen, I was sure that I loved Jesus and wanted to be part of God's family. I read my Bible and prayed. In the last few years, I knew I could not keep going to the Buddhist temple and the Shinto shrines. I do not believe in many gods. I believe in only one."

"I love my family," she explains, "but I love Jesus more."

At the end of the book, Yoko comes knocking on the American family's door, explaining that her father has turned her out. Everyone prays, and the American father assures the worried children that God will take care of Yoko, "just like He cares for us."

Yoko ends up deciding to come to America. "It still hurts to be away from my family," she says, "but I know God is taking care of me."

The book's dedication is "To our friend and sister in Christ, Yoko."

A few thoughts:

  1. I think there's no Establishment Clause problem with a school library's keeping the book on its shelves. (Recall that though Eric objects to the book's being on "a special shelf of books that kids get a sort of 'extra credit' for reading and answering questions about," he asked that the book be removed altogether.) Though the library does in some measure endorse the books in the library as fitting reading, it doesn't endorse all the views in those books as being correct. Parents can easily explain this to their children, and I think that many third-graders can figure this out even on their own. For that matter, I would hope that one things school teach is that not everything that's written in a book -- even a school library book -- is true.

    Moreover, if the Establishment Clause does bar school libraries from stocking such books, then this wouldn't just apply to books whose primary focus is pro-religious -- it would also apply to books that have some religious themes (try the Chronicles of Narnia), or even books in which some appealing characters are religious, and express their religious views. Would even the Christmas Carol be immune? Courts ought not, I think, read the Establishment Clause in a way that would demand the exclusion of such views from school libraries.

  2. At the same time, I think it's probably bad judgment for the public school library to include books that overtly criticize (even mildly) other religions -- at least for the lower grades -- unless the books have such great historical or literary value that they need to be included. Naturally, people are free to express such criticisms outside school, and many religious belief systems necessarily involve implicit and often explicit criticisms of rival systems. Still, it seems to me that public schools ought to try to teach tolerance of other religions, and the most effective likely way of doing that, at least for lower grades, is by not carrying criticisms of those religions.

    Adults and even teenagers need to learn a complex mix of tolerance of others' beliefs but a recognition that those beliefs may be wrong, even deeply wrong. But for third-graders, I think, the best way of learning that, at least in a public school, is by stressing the tolerance, and not focusing on the beliefs' supposed error. Also, though, I'm no expert on Buddhism, I'm not sure that the book's description of Buddhism is quite correct, which may be another reason the school shouldn't carry it.

    Nonetheless, these are matters of judgment about education policy, morals, and manners, often involving subtle differences of degree. They ought to be decided by school administrators, subject to moral suasion by parents and by the public, not by courts.

  3. What about putting religiously proselytizing books -- assume for now that they don't include explicit or obvious implicit criticisms of other religions, or of irreligiousness -- "on a special shelf of books that kids get a sort of 'extra credit' for reading and answering questions about"? I think this too is not unconstitutional (though neither is it constitutionally mandated).

    Moreover, it seems to me that many religious parents (and maybe even some religious kids) would like to have this as an option for their own kids; other kids are getting extra credit for reading about things that they or their parents find interesting or enlightening, and the religious parents may want their kids to get extra credit for reading about things that they or their parents find interesting or enlightening. Nor do I think that there's anything unconstitutional -- or educationally sound or otherwise improper -- in the school's facilitating this.

  4. But, some parents may say, my child is being exposed to religious beliefs I disapprove of, without my knowledge or permission! So? The child will be exposed to lots of religious beliefs in lots of contexts, many with much more pressure (say, peer pressure from classmates) than that provided by one of many library books (or even one of many library books that one can read for extra credit). It seems to me that parents have plenty of time, authority, and power to counteract this, by explaining to the child that while others believe the things in the book, they (the parents) don't believe it, and by explaining why the child shouldn't believe it.

    In fact, this may give the parents a good opportunity to actually strengthen their teaching of their own religious views to the child: It's often confrontation with rival religious views, and an explanation of why those views are supposedly mistaken, that helps reinforce in the child the parents' views.

    Now I can certainly understand why some parents might nonetheless not want their children exposed at school, or in the school library, to a favorable, emotionally persuasive presentation of these rival views (whether religious or political). That's one reason that I don't think schools should be barred from removing books. But I don't think they should have a constitutional obligation to remove them. And I think that people who are in a religious or political minority should expect that their child will indeed be exposed to the majority's views in the school library -- and though they can try to persuade the majority that the books should be removed, they should have no legal or moral entitlement to having those books removed.

Related Posts (on one page):

  1. What Inconsistency?
  2. Is This a Book Banning?

A cool quote,

from Longfellow by way of Wittgenstein and then Harry G. Frankfurt's On Bullshit:

In the elder days of Art,
Builders wrought with greatest care
Each minute and unseen part;
For the Gods see everywhere.


Interesting Panel in D.C. on Whether the Free Speech Clause Imposes Limits on Government Speech:

My coblogger Erik Jaffe has organized it, under the aegis of the Federalist Society, and it's happening this Thursday at lunchtime (12 to 2 pm) at the National Press Club (529 14th Street NW). The other panelists are former Solicitor General (and Duke lawprof) Walter Dellinger, leading Supreme Court litigator Tom Goldstein, and former Assistant Attorney General for the Office of Legal Counsel — quite a distinguished list of speakers, and, true to the Federalist Society's practices, a politically mixed list. To register, please go here (the lunch is just $20, and you definitely don't have to be a Society member).


Blogging and the Blogger-Reader Relationship:

Alan Greenblatt in the San Francisco Chronicle has a good column on the subject. Never mind the peevish-sounding headline (and always remember that columnists and reporters don't write the headlines for their stories, and generally aren't even consulted when the headline is written) and focus instead on the body. An excerpt:

Habitual excuse notes [in which the writer sheepishly announces that he or she has something better to do today and simply can't come out and create] were starting to bug me until I realized that blogs perform much the same functions that personal letters used to, back in the days when the U.S. mail was associated with the agile pony rather than the pokey snail. After all, 98.7 percent of all personal letters ever written begin with the same apology. "I'm sorry it's taken me so long to write, but . . . " . . .

The worst letters were exactly like the most useless blogs, filled with daily trivia and accounts of hobbies or personal comings and goings that only a mother could struggle through.

On the other hand, letters at their best had all the qualities that make many blogs attractive. They provided the correspondent's unfiltered and immediate impressions of the events and artifacts of the day.

For example, the letters of the late actor John Gielgud, published last year, read as if they were selections from a witty, catty blog about film and the London theater. . . .

[L]ike letter writers of old, [blog] creators hope to forge a connection with readers whose attention they have earned by dint of their own insights or prose quality, not through affiliation with some established publication. . . .

The letter analogy is of course quite incomplete (and I'm sure it's not intended to be complete), but it captures an important point, I think.


The (Mostly) Bloggers' Amicus Brief in the Apple v. Bloggers Case

is here. The amici on whose behalf the brief is filed include Jack Balkin, Michael Froomkin, Joshua Micah Marshall, Markos Moulitsas (the Daily Kos), Glenn Harlan Reynolds (InstaPundit), and me. Many thanks to Lauren Gelman, who wrote the brief. How Appealing posts about this, and links to an easy-to-read list of the amici.


Today Is the Anniversary of a Great Event in World History.

In the Soviet Union, I recall, the date was widely known, but in my experience Americans generally don't know it.


VAPS wanted:

I'm chair this year of the George Mason Law School appointments committee, and find that we have room in our budget for one or more Visiting Assitant Professors. We're looking for people who are planning to go on the tenure-track job market in the next year or two, and would like a year of teaching and research experience in 2005-2006. Subject needs are flexible (but please specify what subject areas are up your alley). If this sounds like something of interest to you, and you have the underlying academic credentials for a tenure-track job at a law school (sterling academic credentials and serious academic scholarship published or in progress), drop me a c.v. and cover letter to dbernste at gmu dot edu. Serious inquiries only, and please don't badger me with questions; send in your c.v., and our appointments committee will do the rest.


Is Assad Trying to De-Baathify Syria?--

The sometimes unreliable Debka.com, which had the best inside reporting on the Syrian pullout from Lebanon, is now spinning a new tale about developments in Syria:

Assad Launches Secret DeBaathification.

Syrian president Bashar Assad is trying to turn his back on the fiasco of his exit from Lebanon and shore up his regime by a secret crash reform program –- although one that is careful not to put the presidency on the block.

Stage one took place in total hush Saturday, April 9. . . .

Assad wants his epic political and military revolution to be over and done in three months, unlike the Baath revolutions in Iraq and Syria which dragged on through the 1960s and 1970s.

This is a very tall order as well as a dangerous gamble, considering that Assad is proposing to roll back four decades of Syrian history by June and transform his Baath from a Marxist-socialist ideological movement to a rejuvenated, pragmatic ruling party.

Despite the heavy secrecy imposed on this radical program, a storm of opposition will be hard to avoid. It could go as far as a bid for his ouster.

He proposes to sever the reciprocal lifeline between army and party and shut down the movement’s pan-Arab center, so withdrawing the mother party’s support from the many Baath branches around the Arab world, especially in Lebanon and Jordan. He even seeks to rewrite the national constitution and introduce an open market economy.

But since he grasped Lebanon was a write-off, Assad is quoted by DEBKA-Net-Weekly’s sources as dropping to confidants such remarks as: “I don’t want to see foreign troops in Syria forcing us to accept the sort of reforms imposed on Iraq. We can carry out those reforms on our own.” This tone recalls Libyan ruler Muammar Qaddafi’s vein in 2003 after he was reconciled to meeting the Bush administration’s demands and ceding his nuclear option and weapons of mass destruction programs.

. . .

D. Economy Committee

This panel was assigned to restructure the Syrian economy and oversee its transition to a market economy.

3. A timeline was drawn up for the three critical stages of the Syrian reform program:

April 9 – elections for Baath party branch councils. The plan is to bring fresh blood to the branches to replaces veterans some of whom have been in place 40 years.

April 26 – the newly-elected local branch councils will pick new district bodies.

June – the national party convention will meet to approve the reform program.

The next three months will therefore be crucial for Syria and its ruler.

According to our Middle East sources, Assad’s plan to jettison the old political structures and with them the old guard he inherited from his father exposes him to a fight to the death from such formidable figures as Abdullah al Ahmed, acting general secretary of the Syrian Baath, who took over on Hafez Assad’s death and all three vice presidents Zuheir Masharka, Khalim Haddam and Muhammed Jaber Jabjush. They are all warning Assad that if he goes through with his plan he will be riding for a fall and risk the eclipse of the Assad dynasty in Syria.

Dissent is even broader and deeper among lower Baath echelons and the military officers who treat local Baath branches as their personal power bases.

If this indeed happens (and even if Debka's reporting is correct, there is considerable uncertainty about the future in such a volatile world), we can once again be treated to public statements in the press that no one could have expected it--except that developments of this general type were part of the Neocon strategy all along. Bringing even a mixed market economy to Syria would be good for almost everyone, except the Socialist ministers themselves.


Speaking on Thursday at University of Arizona: This Thursday (4/14 at 12:15 in Room 138), I will be speaking at the University of Arizona law school on Ashcroft v. Raich. Details are here (scroll down).

My last speeches of the school year will be:
Monday (4/25): Quinnipiac (on Ashcroft v. Raich)(making up for speech that was snowed out)
Wednesday (4/27) at The Social Law Library, in Boston (on my book Restoring the Lost Constitution: The Presumption of Liberty).

Be sure to introduce yourself as Volokh Conspiracy readers.

Georgia Legislature Abdicates to Junk Expert Testimony in Criminal Cases:

As long-time VC readers know, one of my academic interests in the admissibility of expert testimony. In general, I am sympathetic to the trend in American courts to have much stricter exclusionary rules for expert testimony.

Ever since Peter Huber published the manifesto of the anti "junk science" movement, Galileo's Revenge: Junk Science in the Courtroom (for which I was a research assistant while in law school) in 1991, critics have argued that advocates for stricter standards for admissibility of expert evidence are mere shills for corporate defendants seeking to deny plaintiffs just compensation.

I've never given this theory much credence, but the Georgia legislature seems out to prove me wrong. Georgia recently passed a law stating:

It is the intent of the legislature that, in all civil cases, the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states. Therefore, in interpreting and applying this Code section, the courts of this state may draw from the opinions of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999); and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases.

So far, so good. I've published an article arguing that state courts should adopt the Daubert trilogy.

However, the law also requires that even the junkiest of junk scienc be admissible in criminal cases: "In criminal cases, the opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses." This test--that any loosely qualified expert can say virtually anything he wants in court, with no screening beyond his c.v.--is what junk science foes have disparagingly called the "let-it-all-in philosophy."

While my own writing has been primarily about civil cases, junk science, and otherwise bad expert testimony, is an even worse problem in criminal cases; few criminal defendants have the sort of resources that big companies defending toxic torts cases have to hire their own experts. Indeed, it seems that in many cases involving egregious expert testimony, overburdened and under-resourced public defenders don't even bother (or know enough) to challenge prosecution experts. Consider that one of the worst offenders in expert witness history, a forensic anthropologist who claimed the unique ability to determine all sorts of specific information about a suspect from a shoeprint, had her testimony excluded in only one of the dozens of cases in which she testified for the prosecution.

In short, the Georgia law is a scandal, appropriately protecting civil defendants from unreliable expert testimony, but leaving mostly impecunious and ignorant criminal defendants to fend for themselves against the worst types of abusive expert testimony. (Even worse, taking the law literally, which I doubt the legislature intended, even Rule 403, 404, and other general evidence rules wouldn't apply to expert testimony in criminal cases, because such testimony is "always admissible").

It would be nice if we could trust prosecutors not to abuse the privilege the Georgia legislature has given them, and to rely voluntarily only on reliable testimony that would past Daubert trilogy muster. Unfortunately, however, my knowledge of how prosecutors have often willingly used outrageously bad expert tesimony when they thought it would help get them a conviction suggests that one might as well believe in the tooth fairy.

UPDATE: Several readers have pointed out that criminal defendants, too, can take advantage of the leniency of the Georgia law, as by bringing in quack experts supporting various "diminished responsibility" theories. It's certainly true that defendants, especially wealthy defendants, can bring in bad expert testimony, as the O.J. trial showed. But the vast majority of criminal defendants don't have a prayer of winning a diminished responsility case, and, in any event, most defendants, unlike prosecutors, don't have the resources to bring in a parade of charlatans and hired guns. So I'll stick to my view that this is a very unjust, pro-prosecutor measure.


Monday, April 11, 2005

Being Nonjudgmental:

My friend and colleague Stephen Bainbridge writes:

[W]e have a WSJ($) column today by former Joe Lieberman aide Dan Gerstein, who explains that "the Democrats Are Losing the Culture Wars" because they have:

... a profound aversion to making moral judgments. And that's the nub of the values problem for Democrats today. We don't hesitate to judge people's beliefs, but we blanch at judging their behavior. That leaves us silent on big moral issues at a time of great moral uncertainty, and leaves the impression that we are the party of "anything goes."

I don't buy it. It seems to me that liberals in fact not only "don't hesitate to judge people's beliefs," but they also don't "blanch at judging [certain people's] behavior." In other words, the Democrats have become "the party of 'anything goes'" precisely because they are ready to judge anybody who thinks some things should remain out of bounds.

(Go to the blog post for more.)

I've always been puzzled by claims that some groups are "nonjudgmental" about political or moral matters while others are "judgmental," whether the claims are about belief or about behavior. (Warning: I couldn't read the original piece, so perhaps Gerstein is making a much more nuanced claim; I'm just using the quote as given by Stephen as an example of the kind of broad argument that I've often heard.)

One can certainly be nonjudgmental -- in the sense of not judging whether people are right or wrong, at least in a moral sense -- on certain matters, such as esthetics or similar tastes. (I may judge that people who dislike custard are missing out on a great taste, but I wouldn't say they're immoral, foolish, or more broadly wrong for not liking custard.) More controversially, one can be nonjudgmental about people's interest in various sexual practices, even though others are judgmental about these matters. One can also be more or less judgmental in one's interactions with people, in the sense of not expressing one's judgments of their moral behavior. One can imagine, for instance, concluding that a friend needs sympathy and help, unmixed with expressions of judgment about whether the friend behaved badly (at least if the behavior isn't too bad).

But surely one must be judgmental in political life on a wide range of topics. Liberals have long expressed negative judgments about people for various beliefs (racism, intolerance, desire to suppress certain civil liberties, lack of sympathy for the poor) and for corresponding actions. Conservatives have done the same, on a set of beliefs and actions that in some measure overlaps with the liberals but in some measure differs, especially in intensity; likewise with libertarians. In fact Democrats are not "silent on big moral issues" -- unless one thinks that war, equality, liberty, economic rights and obligations, and the like aren't big moral issues.

They may be silent or relatively quiet as to some moral issues (e.g., the moral question of whether one ought to get an abortion, rather than the moral question of whether the law should stop women from getting abortions). But that's because of a judgment about which moral issues (and which forms of conduct) are fit for political judgment, not a judgment that one ought not judge people's conduct.

There's of course nothing wrong with being judgmental as such. There may be something wrong with being judgmental on certain matters. Again, a trivial example is people judging others because of which flavor of ice cream they prefer, or for that matter judging them morally -- rather than esthetically -- based on whether they like classical music; there are naturally other more controversial examples.

But it is wrong, I think, to claim -- or to bemoan -- that one's side is nonjudgmental on great moral issues generally (as opposed to a few issues in particular). Republicans, Democrats, Libertarians and others are judgmental, and right to be judgmental. The debate should be about what we should judge, and what our judgments ought to be.


"Addicted to the Courts" -- a Reminder to Liberals, Libertarians, and Conservatives:

NYU law professor Burt Neuborne — who has been, among other things, National Legal Director of the ACLU and Special Counsel to the NOW Legal Defense and Education Fund — warns his fellow liberals in an article in The Nation not to rely too much on victories in court. He writes:

In recent years, many progressives appear to have lost the habit of following up judicial victories with grassroots movements. Simply put, too often the appeal to courts is treated as the end of the political process, not its beginning. Three examples suffice.

The battle over abortion rights has never developed an effective movement designed to explain why abortion is fundamentally fair. . . . The progressive response [to pro-life criticism] was an abstract defense of individual autonomy that winds up sounding hedonistic, together with hairsplitting distinctions about when human life begins. . . .

The gay rights movement, winner of a great judicial victory in Lawrence v. Texas, when the Supreme Court invalidated criminal sodomy laws, immediately redoubled its judicial bets by challenging laws banning same-sex marriage. That may be good law, but it's terrible politics. A grassroots movement designed to explain why it's unfair to deny gays the ability to live together in stable relationships would result in widespread support for legally protected civil unions and pave the way for popular acceptance of same-sex marriage. Without such a campaign, opponents have been permitted an open shot to argue the unfairness of imposing unwanted changes on a historic, religion-based institution.

Finally, defenders of the wall between church and state have relentlessly pressed to remove religious imagery from the public square without seeking to persuade the public that it's fundamentally fair to do so. Legalistic arguments simply do not convince many well-meaning people who feel cheated when their religious symbols are banned. Nor do claims that onlookers are somehow harmed merely by viewing such symbols, as long as everyone has an equal right to have the symbol of his or her choice, including symbols of atheism, displayed. We don't allow secular speech to be banned because it offends onlookers. Why should religious symbols be subject to "heckler's veto"? Thus, unlike abortion and gay rights, where powerful fairness-based arguments exist in defense of judicial decisions if only we would deploy them, I'm not sure that in this case a persuasive fairness rationale exists.

Progressives pay a heavy price for failing to defend the fairness of our judicial victories at the grassroots. In the short run, we weaken judicial precedents, leaving them exposed to criticism that they are unfair and undemocratic--which ultimately may result in the selection of judges willing to overturn them. In the long run, we pay an even heavier price by galvanizing opponents bent on freeing themselves from what they perceive as elitist disrespect for democratic governance. The margin of victory in the 2004 presidential election may well have come from religious believers in Ohio who voted against their economic self-interest to protest judicial decisions that appeared to them to attack their belief systems without good reason. . . .

One can argue about some of the details — for instance, while I noted the Ohio possibility myself shortly after the election, it's now far from clear that this is indeed was the reason for Bush's margin of victory in Ohio. (Plus, of course, while I'm not wild about all of the Republicans' economic policy, I think that they are in the best interests of most Americans, though obviously liberals like Neuborne generally disagree.)

Nonetheless, the broader point, I think, is quite right, and it's one I make to conservative and libertarian friends who put too much stock in winning constitutional rights battles — gun rights, campaign speech rights, property rights — in court. Why should we focus on politics rather than litigation, they ask, when there's a fundamental constitutional right at stake? Isn't the point of the Constitution to secure certain principles from political attacks?

To quote the flag salute case, West Virginia Bd. of Ed. v. Barnette, wasn't "[t]he very purpose of a Bill of Rights . . . to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts"? Shouldn't it be the case that "[o]ne's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections"?

Well, maybe this is true in some world where the Bill of Rights somehow implements itself, without the need to be interpreted and enforced by real human beings, who — being social creatures — are necessarily influenced by the views of those around whom they live, those who taught them (whether teachers, parents, or others), and those with whom they grew up. But in our world, it is at most an aspiration, not an accurate description of political reality.

Winning in court is generally good — but there's no substitute for winning elections, and for persuading the public more broadly. Any victory that's only a victory in court is not likely to last long, at least on the important issues that are likely to remain in people's minds. Neuborne is right to remind his side about this; I hope people on my side (generally libertarians and, on many issues, conservatives) remember this, too.

UPDATE: David Kravitz (BlueMassGroup) makes a similar point about gay marriage, and discusses the Connecticut civil unions bill:

"[T]he Connecticut legislature appears to be on the fast track to adopting a civil unions law that will give gay couples all the rights and privileges of marriage under Connecticut law, except that it won't be called "marriage."

The important thing about the Connecticut story is that, if the proposed law passes, Connecticut will be the first state to adopt a gay marriage or marriage-equivalent law without having had a court tell it do so. In other words, it will be the first time that the people's elected representatives have decided that granting full marriage (or marriage-like) rights to gay people is what they should do, rather than what they must do. That's a really, really big deal.


Jonathan Rauch on Schiavo:

I'm still mostly sitting out the Schiavo matter (to the extent there is still a debate to sit out at this late date), but I did want to pass along Jonathan Rauch's column. Whether you agree with it or not, it's a serious and important challenge to conservatives. Here's an excerpt:

[During the debate about the 2000 election, i]n The Weekly Standard, Noemie Emery wrote that the two sides had "ended up fighting to vindicate the deepest beliefs of their respective parties. Democrats believe in intentions and feelings.... Republicans believe in the rules."

Democrats, Emery explained, "are the party of malleable standards, in the interests of what they think of as just." They "want courts and well-intended politicians to intervene to engineer outcomes they think are fair." Conservatives, in contrast, know that life is unfair, but "they do not believe laws should be calibrated to account for individual instances of unfairness, as there is no legal system conceivable that can begin to account for all the myriad forms of unfairness life metes out." After all, "there is no way to remove error from human endeavor. Life is chaotic, which is why we need rules to channel it, to give order to happenstance, and keep things from reeling out of control."

Conservatives believe that sound law depends on predictability and finality -- or at least they did before the Schiavo case. The rules should be written in advance instead of being continually reinvented on the fly, and legal disputes should not be allowed to drag on and on. . . . .

In telling the politicians to take a hike and let the law do its job, the public was acting on a hallowed conservative moral principle: "Enough is enough." Most Americans, including most conservative Americans, clung to their instinct for good legal order in a messy world. In other words, they clung to traditional Republican values. Which is more than the Republicans in Washington did.

In her 2000 article, Emery concluded by asking, "Do [Democrats] really want elections that are infinitely reviewable, subject to challenge on every slight glitch, every hurt feeling, every bright sense of outrage? Do they think life can be fair without law?" Good question. In 2005, what do Republicans think?


CNN President on Liberals:

A quote from Jonathan Klein, the President of CNN, on the Charlie Rose Show (thanks to John Fund in OpinionJournal's Political Diary for the pointer):

Charlie Rose: If [somebody came in] and said, we believe there is the absence of progressive opinion as people now believe on cable news, would that have been successful as FOX has been? My question said another way: Is it the fact that they have some, a formula, and it doesn`t matter what the politics are, or the politics make a difference?

JONATHAN KLEIN: They've tapped into an outrage that's lurking among a certain small segment of the population, mostly angry white men, and those men tend to be rabid. They tend to be habitual. They tend to like to have their points of view reinforced. And a, quote/unquote, "progressive" or liberal network probably couldn't reach the same sort of an audience, because liberals tend to like to sample a lot of opinions. They pride themselves on that. And you know, they don't get too worked up about anything. And they're pretty morally relativistic. And so, you know, they allow for a lot of that stuff. You know, the -- FOX is very appealing to people who like to get worked up over things.

Is that really so -- "progressives" and liberals (as opposed to conservatives) "don't get too worked up about anything"? Not about guns? Not about abortion rights? Not about religious conservatives? Not about President Bush, especially during the 2004 campaign?

And recall that Klein isn't just saying that not all progressives and liberals "get too worked up about" things. His claim is that Fox is succeeding because they've "tapped into an outrage that's lurking among a certain small segment of the population" that's "rabid" and "angry." But apparently there isn't even a matching small segment of the population that's progressive or liberal, angry, and "worked up about" things.

I'm pretty skeptical when either side makes these sorts of generalizations about the other. People on the left and on the right both come in many temperaments, some angry and some calm, some interested in sampling a lot of opinions, some (probably most, I suspect) not. There may be some systematic differences in temperament, but I suspect that they're not huge. And one certainly shouldn't trust people on either side to properly identify them based on impressionistic judgments: There's a natural human tendency to see the best in people who agree with you, and the worst in people who disagree.

But while I surely wouldn't say that all or even most liberals (or even all or most progressives) like to get "worked up about" things, it seems to me quite clear that at least a "small segment" of them sure does enjoy that sort of stuff. The CNN President seems quite mistaken here.


Bloggers as Giant Battle Monsters,

competing head to head, courtesy of the aptly named The Surrealist. Just enter the names of your favorite blogs and see the results.


Sunday, April 10, 2005

How to Blog Anonymously: A guide from EFF. Thanks to Politech for the link.

Supreme Court Term Limits: I've been pondering the merits of proposals to impose 18-year term limits for Supreme Court Justices, and have decided that I am tentatively in favor of the basic idea.

  It seems to me that 18-year Supreme Court term limits would have some significant advantages over the current system: 1) it would tend to make the direction of the Supreme Court more reflective of public opinion over time and less contingent on the happenstance of who retires; 2) it would discourage Presidents from nominating younger, less-experienced judges to the Supreme Court with the hope that they'll sit on the Court for 50 years, a change that would likely lead to more experienced and more accomplished jurists being nominated; and 3) at the margins, it might lead to a somewhat more modest Supreme Court in some areas, which at least on balance I think is a good thing (although that of course is a complex question subject to many differing opinions). I'm not persuaded by a number of other arguments made in favor of Supreme Court term limits, but I think these three arguments are significant.

  The burden of persuasion is clearly on those making the proposals, as they are recommending a significant change in the judicial structure. But I'm beginning to come around to the view that these proposals make sense.

  UDPATE: I've decided to open comments.
41 Comments