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Saturday, May 7, 2005

The Cato Institute on "the Grand Old Spending Party":

I just noticed a new Cato study entitled "The Grand Old Spending Party: How Republicans Became Big Spenders."

Here's the guts of the Executive Summary:

President Bush has presided over the largest overall increase in inflation-adjusted federal spending since Lyndon B. Johnson. Even after excluding spending on defense and homeland security, Bush is still the biggest-spending president in 30 years. His 2006 budget doesn’t cut enough spending to change his place in history, either.

Total government spending grew by 33 percent during Bush’s first term. The federal budget as a share of the economy grew from 18.5 percent of GDP on Clinton’s last day in office to 20.3 percent by the end of Bush’s first term.

The Republican Congress has enthusiastically assisted the budget bloat. Inflation-adjusted spending on the combined budgets of the 101 largest programs they vowed to eliminate in 1995 has grown by 27 percent.

The GOP was once effective at controlling nondefense spending. The final nondefense budgets under Clinton were a combined $57 billion smaller than what he proposed from 1996 to 2001. Under Bush, Congress passed budgets that spent a total of $91 billion more than the president requested for domestic programs. Bush signed every one of those bills during his first term. Even if Congress passes Bush’s new budget exactly as proposed, not a single cabinet-level agency will be smaller than when Bush assumed office.

The study is worth a read — in part for the useful charts (see, e.g., figures 1-6 of the study) graphically displaying some of the many different matrices by which spending (even non-defense and non-homeland security spending) has increased dramatically in the George W. Bush Administration.

The study suggests that united government is at least partly responsible. It notes (p. 13) that "[s]pending growth picked up steam much more quickly once Republicans gained control of the White House as well as Congress." I am sympathetic to this argument. As I noted last year, Cato President William Niskanen has written a paper demonstrating that divided government yields lower spending (and, perhaps more depressingly, that reductions in taxation produce increases in spending).

But this still leaves me with a nagging question: why aren't more small-government advocates resisting spending increases? Cato has been sounding the alarm for a while (back in March 2003, Cato published an article about Bush's spending entitled "Hey, Big Spender"), but many others have been relatively silent. Why?

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On the Legitimacy of a Legal System: Over on Positive Liberty, Jason Kuznicki raises some interesting concerns about the theory of constitutional legitimacy I develop in Restoring the Lost Constitution. I thought I would offer some clarifications of my approach which might address some of the issues he raises.

(1) The concept of "legitimacy" I am considering concerns whether laws that are imposed on the people create a prima facie (i.e. rebuttable) duty of obedience because they are laws, or (another formulation) are presumptively binding on conscience.

(2) The concept I am considering is objective, not subjective. By this I mean that I am not discussing the perception that there is a prima facie duty to obey the law, but whether any such perception is valid or justified.

(3) One route to legitimacy is the consent of the governed, but in the absence of the sort of unanimous consent enjoyed by such institutions as schools, churches and other voluntary associations, the consent of some can never explain how nonconsenting persons come to be bound in conscience. This is the challenge to constitutional legitimacy made famous by Lysander Spooner in his No Treason: The Constitution of No Authority. If it counterintuitive to you, then I urge you to read Chapter 1 of Restoring the Lost Constitution where I explain this challenge in detail. (Don't write to me about this particular issue unless you are contesting the analysis I present in this chapter, rather than merely this brief summary paragraph.)

(4) In Chapter 2 of Restoring the Lost Constitution, I try to meet Spooner's challenge by positing an alternative route to legitimacy. (a) No one can complain about the imposition of a law if it does not violate his natural (prepolitical) rights; (b) because one has a duty to respect the rights of others, one also has a duty to obey a law that is necessary to defining and protecting the rights of others. A coercive command that meets these two requirements is "just" and binding in conscience. Therefore (c) a law is legitimate (in the sense defined above) if it is produced and enforced by procedures that make it more likely than not that it (a) respects the rights of the persons on whom it is being imposed and (b) is needed to protect the rights of others. In this sense "constitutional legitimacy" is procedural in nature, though the procedures must be assessed with a background theory of substantive rights in mind.

(5) By this account (and here I am addressing Jason's concerns), legitimacy does not depend on people's perception of their rights, which people may disagree about. Agreement on rights is not necessary for legitimacy. Legitimacy (in the objective sense) is a means of analyzing particular legal systems. Each of us may disagree on this assessment, of course, but we then must debate the claims underlying our different assessments. As with any other moral disagreement, the existence of disagreement itself does not imply that neither of us is correct, or that there is no right answer. That would be a position of moral skepticism that, while a serious argument, would need to be addressed in other ways. So while different opinions about rights will surely exist, legitimacy (like rights claims themselves) will depend on who is correct in their opinion about rights and also about whether adequate procedures exist to protect them. The existence of disagreement itself, however, does not prove that no one is correct.

(6) Legitimacy is a matter of degree. Given that is it based on the likelihood that a law is just (in the sense defined above) this likelihood can vary greatly depending on the procedures in place, from no likelihood, to barely more likely than not, to strongly likely. This is in sharp contrast to consent theories of legitimacy which yield all-or-nothing conclusions.

(7) Laws can be legitimate for some and not for others. Unlike consent theories, by this approach a law could be legitimate for one person or group while illegitimate for others. The original Constitution provides an example of this. Laws enacted pursuant to its procedures could have been legitimate for white males (perhaps only white property-holding males) while completely illegitimate for slave. Woman and nonvoting men might be somewhere in between. The absence of the vote does not go to lack of consent, but lack of assurances that the laws imposed upon the unrepresented group does not respect their rights because they were not able to protect themselves effectively in the political process. If for example, the procedures that were good enough to protect male voters was equally applied to nonvoting males, but not to women, then these laws could be legitimate for all males, though not for women. In addition, some of the laws enforced by a legal system could be legitimate and others of the procedures in place clearly permit certain types of unjust laws, while protecting against others. In practice, then, assessing the legitimacy of a real-world nonconsentual legal system will be pretty messy.

(8) A further advantage of this approach is that, assuming that a procedure has been devised that imparts legitimate laws on one group, legitimacy for others can be obtained by extending the same protections equally to other groups as well, whether or not these groups participated in the original framing of these procedures.

There is much more that can be said about this approach to legitimacy, and I say more about it in my book where I consider, for example, the objection that this form of legitimacy is far too narrow or confining. Part of my response is that unanimous consent governing institutions like schools, churches and other voluntary associations can impose many more restrictions on their consenting members than can a government legal system that seeks to impose laws on nonconsenting persons.

But this post is already much longer than I intended. It provides a perfect example of what my old friend, George Smith, used to call "creative evasion": what we can accomplish when avoiding some task we would rather not do—like grading exams.

Friday, May 6, 2005

Conference on Originalism: On Wednesday, May 18th, The Heritage Foundation is holding a conference on Lost But Not Forgotten: Reviving the Original Meaning of the Constitution. Participants include: Me, David Forte, Keith E. Whittington, John Harrison, Michael Paulson, and Christopher Wolfe, with closing remarks by former-Attorney General Edwin Meese III. Registration is free.

Panels will discuss: "From the Beginning: The Meaning and Revival of Originalism" and "Too Late? Original Meaning and the Challenges of Precedent." Obviously, the second of these topics covers the subject of my new paper that I blogged about here.

Related Posts (on one page):

  1. Conference on Originalism:
  2. Originalism and the Role of Precedent:
ACS Convention: The American Constitution Society has announced a partial list of speakers for its July 29-31 National Convention here in Washington, DC. Although I was invited too late to be on the posted list, I'm delighted to say that I'll be speaking as a panelist at the July 29th breakout session on Racial Inequality in the Criminal Justice System.
Councilman and the E-Mail Privacy Act of 2005: Last fall, I blogged a few times about a very important e-mail privacy case, United States v. Councilman. The original panel decision in Councilman had gutted the privacy protections of the Wiretap Act, and the First Circuit vacated that opinion in October and held oral argument before the full First Circuit in early December. (Full disclosure: I am counsel of record to a group of amici in the case, including the ACLU, the Center for Democracy and Technology, and the Electronic Frontier Foundation.)

  It's been sixth months since the First Circuit's en banc argument, and no opinion has been issued. In the mean time, Congress has introduced a number of statutory amendments to try to settle the matter. The best was introduced on April 28: Senator Leahy introduced S. 936, the E-Mail Privacy Act of 2005, which is a very short and sweet solution. The Leahy bill adds just a few words to the definition of "intercept" under the Wiretap Act to make its already implicit temporal scope textually explicit. It's an elegant and correct amendment. (More full disclosure: I was consulted on the language before the bill was introduced.)

  I remain optimistic that the Leahy bill won't be necessary; the bill really just reinforces the interpretation that the First Circuit should be reaching anyway. Still, it's good to know that some in Congress are following this issue.
Sunstein-Barnett Debate, Grand Finale! In his last post of our week-long debate on the supposed "Constitution in Exile" movement, Cass Sunstein goes out with a bang. My final reply is now posted here.
Lesbians and Privacy:

American Federalist Journal responds to my query about lesbians:

Do you think it is reasonable to separate soldiers by gender in housing, bathroom facilities, etc.? If so, why? If it is unacceptable to put a female soldier in a shower with a bunch of male soldiers, why would it then be acceptable to put a gay male in that shower? Similarly, a lesbian female in a barracks with several other women would infringe on the privacy of those soldiers similarly to putting a male soldier into a barracks with several female soldiers. . . .

[T]here are reasonable practical considerations when it comes to gender separation, and those concerns are nearly impossible to work around when it comes to homosexuals. That isn't the entire case against homosexuals serving openly in the military, but it seems to us to be a reasonable consideration.

I appreciate being reminded of this argument, but it still strikes me as pretty weak.

These are soldiers — people who might have to get shot at by others, and who will otherwise be put in many very psychologically difficult positions. Even those who aren't in combat positions may have to deal with considerable difficulties and traumas. They're supposed to be, and I wager are, pretty tough.

It somehow doesn't seem to me too much of a burden to deal with the possibility (a possibility that is surely always present, even if the military tries very hard to find and kick out every homosexuality) that someone is lusting after them in the shower. These are not fragile flowers we're talking about here; if they can handle drill sergeants, I'd hope they can handle this. And I don't quite see why we should organize our military policy — including by kicking out lesbian soldiers who, as I mentioned below, may on average contribute more to military effectiveness than straight women soldiers — around some soldiers' feeling bothered by the risk of getting checked out in the shower or the barracks.

UPDATE: My correspondent responded:

So can we presume you think it'd be a good idea if the military did not segregate males and females in housing, bathroom facilities etc., because they're all tough enough to handle it? Or that it wouldn't cause any problems? We didn't mean to imply that soldiers would faint like schoolgirls if someone looked at them in the shower.

If the military decided to kick out all women because it's too expensive to segregate men and women, then the situation would be more analogous. The question then would be whether the broadly held social preference for privacy from the other sex makes the matter different. (This broadly held preference applies, I suspect, even independently of actual sexual desire; I wager that women aren't wild about parading naked in front of male homosexuals.) One would also want to think how the analogy is influenced by rape risks and pregnancy risks that might flow from co-ed showering and bunking, which aren't as significant issues for lesbians scoping out women. But that privacy preferences counsel in favor of having segregated shower facilities, or even segregated barracks, doesn't tell us much about whether they should also lead to kicking out (or not accepting) potentially quite valuable servicemembers.

Incientally, I wonder how far the privacy arguments would go: Would it follow that homosexuals should be kicked out of high school gym class, if there are communal showers in the gym? (Not just that it would be constitutional to do so, but that this in fact should be done?) Or kicked off university sports teams?

Related Posts (on one page):

  1. Lesbians and Privacy:
  2. "Don't Ask, Don't Tell" and Lesbians:
Law School Deans on Independent Judiciary: Distrust of the federal judiciary among social conservatives owes partly to the perception that the judiciary has embraced and constitutionalized viewpoints widely shared in the nation's law schools but disputed elsewhere. See, e.g., Romer v. Evans 517 U.S. 610 (1996) (Scalia, J., dissenting) ("When the Court takes sides in the culture wars, it tends to be with the knights rather than the villains--and more specifically with the Templars, reflecting the views and values of the lawyer class from which the Court's Members are drawn."). Whether or not this view is sound, it envisions most law schools as having taken sides in modern debates over important aspects of the meaning of the Constitution.

  Given that perception, I'm not sure how much it helps to have the Deans at most of the nation's law schools sign a letter in which they "strongly oppose" recent criticism, express "full support" for the federal judiciary, and "urge" people to stop threatening to impeach or otherwise retaliate against judges for their decisions. I certainly agree that many of the recent attacks have gone way too far — to the point of parody, even. At the same time, I wonder if the letter will backfire. Existing critics presumably will see it as proof that they're right; they'll figure the Deans are defending the judges because they're on the same side. The fact that Deans at a number of schools known to be more conservative declined to sign the letter will only further that perception.

  Thanks to Brian Leiter for the link.
School District Trying to Spread False Information

About Homosexuality, Using Illogical Arguments, and Violating the Establishment Clause: Yes, that seems to be so, if the facts described in this opinion are accurate. The Montgomery Count Public Schools are apparently trying to adopt a "Revised Curriculum" for sex education classes, aimed at rebutting hostility towards homosexuality. Unfortunately:

A. The curriculum involves the public school unconstitutionally taking a stand on theological questions (as the court correctly held). Consider this excerpt from a "Myths and Facts" handout that was part of the curriculum:

Myth: Homosexuality is a sin.

Facts: The Bible contains six passages which condemn homosexual behavior. The Bible also contains numerous passages condemning heterosexual behavior. Theologians and Biblical scholars continue to differ on many Biblical interpretations. They agree on one thing, however. Jesus said absolutely nothing at all about homosexuality. Among the many things deemed an abomination are adultery, incest, wearing clothing made from more than one kind of fiber, and earing shellfish, like shrimp and lobster.

Religion has often been misused to justify hatred and oppression. Less than a half a century ago, Baptist churches (among others) in this country defended racial segregation on the basis that it was condoned by the Bible. Early Christians were not hostile to homosexuals. Intolerance became the dominant attitude only after the Twelfth Century. Today, many people no longer tolerate generalizations about homosexuality as pathology or sin. Few would condemn heterosexuality as immoral — despite the high incidence of rape, incest, child abuse, adultery, family violence, promiscuity, and venereal disease among heterosexuals. Fortunately, many within organized religions are beginning to address the homophobia of the church. The Nation Council of Churches of Christ, the Union of American Hebrew Congregations, the Unitarian Universalist Association, the Society of Friends (Quakers), and the Universal Fellowship of Metropolitan Community Churches support full civil rights for gay men and lesbians, as they do for everyone else.

This material, which the school would apparently be conveying as its own views,
  1. Describes one interpretation of the Bible as "myth."
  2. Suggests that the most important question in interpreting the Bible is what Jesus said, and that the Bible's use of "abomination" in different contexts should lead us to think that the items thus labeled are morally equivalent — not implausible claims about Scriptural interpretation, but nonetheless claims about Scriptural interpretation.
  3. Implicitly — but I think quite strongly — suggests a particular reading of the Bible is theologically correct.
  4. Condemns particular religious groups by name, not just as part of a discussion of history, but in an attempt to discredit the present religious teachings of at least some religious groups (quite possibly the same ones).
  5. Specifically praises by name certain denominations — again, not just in a context which seems to be describing the facts, but one which suggests that their theology is more sound.
The Court has repeatedly held that the Establishment Clause bars public schools from endorsing and disapproving of theological beliefs. Schools are quite free to express the view on whether homosexuality is wrong and on whether hostility to homosexuality is wrong; that some view on a secular topic corresponds to or is opposed to a religion's view doesn't keep the school from teaching that view. But schools are not free to express views on how the Bible should be interpreted, what is or is not sin from the Biblical perspective, and which religious groups have good interpretations of the Bible and which have bad ones.

B. The curriculum contains at least one factual error, and quite possibly others (though as to the others the matter is more complex). The curriculum says that "a significant percentage of the population is gay, lesbian or bisexual (Approximately 1 in 10)." Earlier, the curriculum makes clear that it treats whether "a person is a homosexual" as a matter of what constitutes his "long-term sexual orientation," not whether someone has had at least one same-sex attraction or experience. Under that definition, the best evidence is that the about 2-3% of all U.S. residents are homosexual; the number might be somewhat different in Canada, but I suspect not vastly. The 10% estimate has long been discredited.

C. More importantly, the curriculum is chock full of unsound reasoning, the very sort of thing we shouldn't be teaching kids. For starters, labeling moral claims as "Myth" (e.g., "Myth: Children raised by gay men and lesbians will be exposed to an 'immoral' environment") and "Fact" (e.g., "Fact: Morality is concerned with principles of 'right' and 'wrong' behavior") strikes me as erroneous and unhelpful. Even if one believe that certain things are objectively immoral, one should recognize that such a judgment is not the sort of thing that one should label "fact"; if anything, we should be teaching students to better distinguish facts from value judgments, even while recognizing that value judgments may be very important and even objectively right.

Moreover, consider this item: "Myth: If you are 'straight,' you can become a homosexual." "Fact: Most experts in the field have concluded that sexual orientation is not a choice." That "most experts" conclude something doesn't make it a fact; one would think that the fact that some experts conclude the opposite should be occasion for students to express some doubt and healthy skepticism, but the curriculum tells them that, no, most experts say it, so it's a fact.

Or how about this? "Myth: Lesbians, gay men and bisexuals do not make good parents." "Fact: One out of four families has a lesbian, gay or bisexual in the immediate family. Heterosexual parents are consistently not found to be more loving or caring than gay parents." I'd hope that any teacher who teaches logical reasoning would give a pretty low grade to a paper that says that. The first part of the "Fact" is a non sequitur (even if it's factually accurate, which I doubt); whether or not a family has a lesbian, gay or bisexual "in the immediate family" tells us nothing about whether lesbians, gays, and bisexuals make good parents. The second part is at least logically related to the attempt to rebut the "Myth" — but how? Even if it true, it merely shows that heterosexual parents are not more loving or caring than gay parents (which is a somewhat imprecise way, I take it, of saying "lesbian, gay male, or bisexual parents"); but there are lots of other ways in which people can be not very good parents than by being un-loving or un-caring.

There's more of the same, but let's leave it at that for now.

I should say, as I've generally said before, that (1) I don't think homosexuality is morally wrong, (2) I would want to teach my children to be tolerant of homosexuality, (3) schools inevitable teach some non-universally-accepted moral values, (4) schools should teach children to be tolerant of homosexuality at least to the extent that students don't beat up or taunt others based on their homosexuality or perceived homosexuality, and (5) there's a perfectly plausible argument for schools teaching children tolerance of homosexuality more broadly. (I'm more tentative as to item 5 simply because while I think that values teaching is inevitable, which highly controversial values should be taught in a public school is a complex question.)

But such teaching should at least comply with the Constitution, avoid falsehoods, and avoid fallacies. Good motives don't justify bad teaching.

Interesting Alabama Supreme Court Opinion:

I just came across an interesting concurring opinion by Justice Parker from the Alabama Supreme Court from just a couple of days abo. Justice Parker's opinion begins as follows:

“It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). In these words, which enshrined the principle of judicial review, Chief Justice John Marshall noted that constitutional interpretation is emphatically the responsibility of the judiciary. He did not say that constitutional interpretation is exclusively the responsibility of the judiciary.

Justice Parker then goes on to argue that each of the branches of government have an independent obligation to interpret the constitution, and that as a result, the court should defer to a longstanding constitutional interpretation by the legislature:

[T]he Alabama Legislature has consistently followed the third interpretation for at least three decades. I believe the Legislature is within its authority to interpret § 63 in this way, and I therefore conclude that this Court should defer to that interpretation. By so deferring, we show proper respect to a coordinate branch of government.

Interesting opinion that invokes, among other sources, Andrew Jackson's veto of the Bank of the United States on the ground that it was unconstitutional, notwithstanding the Supreme Court's holding in McCullough.

Very interesting opinion.

I haven't been able to locate the opinion anywhere but on Westlaw, at 2005 WL 1023157. The case name is Birmingham-Jefferson Civic Center Authority v. City of Birmingham.

"Don't Ask, Don't Tell" and Lesbians:

I'm puzzled about how the military's "Don't Ask, Don't Tell" policy -- or for that matter, any exclusion policy -- can be justified as to lesbians. As I understand it, the main argument in favor of such a policy for male homosexuals is that in all-male or nearly-all-male combat units the possibility of sexual tension may undermine unit effectiveness. I'm skeptical about this argument, but it at least seems plausible.

Yet it doesn't seem to apply to lesbians, since presumably they would very rarely be serving in all-female units, and never in all-female combat units. Moreover, even if we set aside antidiscrimination arguments and focus solely on military effectiveness (which may or may not be the right approach, but let's use it here), it seems lesbians would tend to make better soldiers than straight women:

  1. They are less likely to get pregnant.

  2. They seem less likely to get sexually transmitted diseases.

  3. If the stereotypes about lesbians tending to act in more masculine ways are generally accurate -- hard to tell, for obvious measurement reasons, but that seems to be the conventional wisdom -- then that cuts further in favor of lesbians as opposed to straight women. Many women may well make great soldiers, but if we're speaking about generalities, and the military policy is generally defended using generalizations, I'm happy to at least tentatively assume (as I suspect would the military) that stereotypically masculine traits and attitudes tend to be more useful for soldiering than stereotypically feminine ones.

Is it just that the military fears that straight soldiers will so dislike lesbians that this itself would cause morale problems? I guess that just doesn't strike me as that factually plausible. Is it that the military wants to treat male and female homosexuals equally, for fairness or public relations reasons? That seems odd: Can it really be that discriminating against homosexuals is just fine, discriminating against women (as the military long has done, and still in considerable measure does) is just fine, but discriminating based on sex among homosexuals is wrong, even when there's a perfectly sensible argument for such discrimination? Or is there something else I'm missing here?

Related Posts (on one page):

  1. Lesbians and Privacy:
  2. "Don't Ask, Don't Tell" and Lesbians:
Word v. WordPerfect: I have received more responses to my brief post condemning Word and extolling the virtues of WordPerfect than I have to my week-long exchange with Cass Sunstein. Most wrote to express solidarity. A couple persons wrote to tell me about OpenOffice as an alternative to WordPerfect, though I am very happy with WordPerfect and do not really seek an alternative to what I think is a wonderful piece of software.

One person suggested that WordPerfect was the "libertarian" alternative to Word. I am not a Microsoft hater, and defended it vigorously when it was under attack by the government. I think Windows XP finally provided a smooth and stable GUI operating system. I just think Mocrosoft makes very clunky application software—and Word is the worst of the bunch. The problem for me is that, due to the network effect, I have to buy and use Word when I have dealings with others.

Finally, another reader send me the link to this article about the market rebound of WordPerfect and Corel, who publishes it: WordPerfect Selling Well, Thank You Very Much. I appreciated hearing the good news.

Thanks for all the replies.
Originalism and the Role of Precedent: Those who have enjoyed my debate this week with Cass Sunstein, may be interested in a new short paper I have just posted on SSRN concerning the proper role of precedent in a theory of originalism. It is entitled, Trumping Precedent with Original Meaning: Not as Radical as It Sounds. Here is the abstract:
In recent years, originalism as a method of interpretation has grown in its intellectual and practical appeal. The latest challenge to originalism from nonoriginalists is based on the doctrine of precedent. Acceptance of originalism, it is charged, would necessitate the reversal of crucially important landmark decisions and thereby provides a reduction ad absurdum of originalism. Until recently, few originalists have considered carefully the relationship between originalism and the doctrine of stare decisis (though this situation is starting to change).

In this short essay, I contend that original meaning should indeed trump previous Supreme Court decisions that are inconsistent with the original meaning of the Constitution. But the main thrust of the essay explains why this implication is not as radical as it sounds because there remains much room for the doctrine of precedent in originalism. It is not incompatible with original public meaning originalism to adhere to precedent in cases involving (a) nonconstitutional issues, (b) matters of constitutional construction, (c) detrimental reliance by identifiable individuals, (d) epistemic concerns about the correctness of originalist claims, and perhaps also (e) where the text was originally ambiguous.

Knowing the degree to which a commitment to originalism entails the rejection of the doctrine of precedent may well influence the degree to which originalism is deemed acceptable by academics, judges, and the general public. For this reason, it is important to make clear that a commitment to following original meaning where it conflicts with judicial precedent is far less radical a stance than critics of originalism, and perhaps even some originalists, assume.

Related Posts (on one page):

  1. Conference on Originalism:
  2. Originalism and the Role of Precedent:
Revenge of the Sith:

After how much I disliked the last two Star Wars movies, I was relieved to read this review in Variety of "Revenge of the Sith".

Maryland Protects Its Consumers from Low Gas Prices:

Yes, believe it or not, Maryland is concerned that gas stations aren't charging consumers a high enough price for gasoline, so they have ordered local gas stations to raise their prices:

A gasoline price war erupted in St. Mary's County last week after one station slashed its price for regular to $1.999 a gallon and spurred three others to follow suit, giving drivers some hope of relief at the pump.

But the price dip proved fleeting.

Maryland regulators quickly stepped in and told the stations that their prices were too low. They needed to go up by 5 cents.

In as much time as it takes to fill the tank of an SUV, prices at BJ's Wholesale Club, Sheetz and two Wawa outlets bounced to $2.049 a gallon.

This is pursuant to a state law enacted in 2001 that prohibits so-called "sales below cost" of gasoline. Note, however, that unlike predatory pricing under the antitrust laws, these laws have been interpreted to not require recoupment or other elements of predatory pricing (such as in this opinion by the Tenth Circuit) by the purported unfair competitor.

We criticized several of these laws when I was at the FTC (in Kansas and Wisconsin, for example), through the FTC's competition advocacy program. Maryland, however, did not request the FTC's input at the time they enacted their law in 2001. Maryland, which appears to have never met an ill-considered anticompetitive regulation that it didn't like, also is one of the states that have adopted divorcement regulations, which further tend to increase gasoline prices.

Walter Williams had an excellent column a little while back criticizing the Maryland law. As he put it:

A couple of weeks ago, heading down to George Mason University, I pulled into my favorite Wawa gasoline station just off the Bel Air, Md., exit on I-95 South. At each of the 20 gasoline pumps, there was a sign posted that Wawa would no longer dispense free coffee to its gasoline customers. Why? The station was warned that dispensing free coffee put it in violation of Maryland’s gasoline minimum-price law.

Here’s my no-brainer question to you: Do you suppose that Maryland enacted its gasoline minimum-price law because irate customers complained to the state legislature that gasoline prices were too low? Even if you had just 1 ounce of brains, you’d correctly answer no. Then, the next question is just whose interest is served by, and just who lobbied for, Maryland’s gasoline minimum-price law? If you answered that it was probably Maryland’s independent gas-station owners, go to the head of the class.

Williams also has an excellent analysis of the public choice dynamics of how these laws get enacted, notwithstanding their harm to consumers.

Thank goodness we have Maryland's intrepid regulators on the case to protect consumers from paying too little for gasoline. The WaPo article reports that the state has logged 31 violations in the four years that the law has been on the books--do the state regulators really not have anything better to do with their time than to protect consumers from cheap gas?

Congressional Black Caucus, Small Business, and Bankruptcy Reform:

Interesting article in the Washington Times this morning on the Congressional Black Caucus and their growing tendency to buck Democratic Party leadership and to vote independently on certain important pieces of legislation, namely the bipartisan Bankruptcy Reform legislation and the repeal of the estate tax. The article notes that about one-quarter of the caucus (10 out of the 41 members of the Congressional Black Caucus, which includes one senator) voted in favor of the bankruptcy reform legislation, and five voted for both bankruptcy reform and estate-tax repeal.

The article suggests that the key political dynamic at work is the growth in the black middle class and the growing recognition that many small businesses are minority-owned businesses. As a result, more members of the Congressional Black Caucus are taking the expressed views of small businesses into account in their voting pattern.

Consider David Scott, a Congressman from Georgia:

The caucus was founded in 1969 by 13 members of the House, primarily representing urban districts in the Northeast, Midwest and far West. Though it remains all-Democratic, it now has grown to 41 members, including a senator, Barack Obama of Illinois, and has spread to the booming suburbs near Southern cities. Mr. Scott, an honors graduate of the Wharton School of the University of Pennsylvania who went on to establish his own advertising agency, is the first black politician to be elected to a Southern district that was less than 40 percent black. "It is important that there be a rich political diversity in the Black Caucus because there is a rich diversity in America and within the black community," he said. As a businessman, Mr. Scott said voting for the bankruptcy bill and elimination of the estate tax was easy. "The business of America is business, and Georgia is one of the fastest-growing states in America because we are pro-business," he said.

Congressman Wynn adds:

Mr. Wynn, who represents Prince George's County, the wealthiest predominantly black county in the country, said his votes always have been consistent. "I campaigned on job creation and economic growth 13 years ago, and I don't view [my votes] as a change," said Mr. Wynn, whose district has a high concentration of both large and small black-owned businesses. "Most of my votes are tied to job growth, wealth creation and small- and minority-business growth." "Almost all in the minority-business community supported elimination of the estate tax. Access to capital has been a big issue, and small businesses and minority businesses are being hurt by unnecessary bankruptcy," he said.

As I noted earlier, when I attended the signing ceremony for the bankruptcy reform legislation, I sat next to the owners of a family-owned lumber store in rural New Jersey, who described for me the dramatic negative effects that bankruptcy losses can have on small businesses. And, of course, excessive bankruptcy losses are most likely to negatively impact higher-risk borrowers, such as young and minority borrowers, in terms of higher credit costs and reduced access to credit.

There may also be a generational change at work here, as those supporting these small-business initiatives also seem to be drawn from the younger and southern members of the Black Caucus (who joined most centrist Democrats in voting for bankruptcy reform), whereas the old rust-belt guys like Congressman Charles Rangel dismiss the votes as "just stupid" and John Conyers just chalks it up political ambition for higher office. In other words, it seems pretty clear where the new ideas in the Congressional Black Caucus lie on issues like bankruptcy reform.

The Senate roll call vote on the bankruptcy reform legislation is here; the House vote is here.

Martha Stewart and the Runaway Bride.--

I have been struck by the difference in treatment accorded Martha Stewart and the runaway bride, Jennifer Wilbanks. Stewart spent five months in prison for lying to federal investigators about getting and acting on a stock tip that most law professors that I've read (including Professor Bainbridge) believe was legal to get and act on. The government disagrees about the legality of her trading and filed a civil suit against Stewart.

Contrast that with Wilbanks (courtesy of the NY Times):

Mr. Porter [Gwinnett County, GA district attorney] said Monday that his office could file charges of making a false statement to law enforcement, a felony, and falsely reporting a crime, a misdemeanor. The charges carry penalties of up to five years in jail for the felony and one year for the misdemeanor, and maximum fines of $10,000 and $5,000, respectively. He said it could take months to decide whether to file them.

Though Ms. Wilbanks at first told the police and F.B.I. agents in Albuquerque that a Hispanic man and a white woman had kidnapped her in a blue van and released her, the authorities there have said no charges are planned. A spokesman for the Federal Bureau of Investigation in Albuquerque said the cost of a federal prosecution was probably not worth it because she had told them the truth within about an hour.

"We're not like the Duluth police department in Georgia," the spokesman, Bill Elwell, said, "sending people out looking for her for days."

Mr. Porter said Ms. Wilbanks also called the Duluth police directly on Saturday to spin her kidnapping tale.

I remember one of my criminal law students suggesting that perhaps Martha Stewart got off easy because she was rich. I said that she was treated pretty seriously for a conviction for a first offense of lying to a federal officer. I wonder how many people lie to the police about whether they were speeding. Would they anticipate a 5-month jail term for a first offense (and speeding is actually a violation of law, unlike what Stewart lied about doing, if one credits experts such as Bainbridge).

There are several respects in which Wilbanks' behavior is worse than Stewart's and two respects in which it is less bad--Wilbanks recanted fairly quickly and she was probably less in control of her emotions.

I think, nonetheless, that the juxtaposition is interesting.

Thursday, May 5, 2005

The Patriot Act and the Exclusionary Rule: I had a fun time testifying this morning about the Patriot Act and the rules that govern Internet crime investigations. I was struck by the bipartisan sense among the Judiciary Committee members of the need for some kind of increased oversight of Internet surveillance practices. They weren't sure exactly what kind of oversight to add, but they were interested in exploring the issue. I've been arguing in favor of a particular remedy to this problem for a few years now, and we spent a bit of time exploring the approach during the hearing. I thought my proposed remedy might be of interest to a broader blog audience.

  First, a bit of background. Somewhat remarkably, Internet surveillance law does not include a suppression remedy for violations. The Fourth Amendment is traditionally enforced with a suppression remedy; if the police violate the Fourth Amendment, they can't use the evidence illegally obtained. Not so in the case of the Patriot Act and the Internet privacy statutes. When Congress passed its first Internet privacy law in 1986, they struck a deal with the Justice Department: the Justice Department would go along with the legislation so long as there was no statutory suppresion remedy for violations. That compromise remains on the books today. As a result, Congress's statute provides strong civil remedies but no right to suppression of evidence unlawfully obtained. (While the Fourth Amendment ruppression remedy exists in theory, for technical reasons it plays little to no role in practice.) If the government breaks the rules — wiretapping your Internet account unlawfully, getting your e-mail without a court order, etc. — you are not entitled to suppression of the evidence.

  I wrote a law review article in 2003 explaining why this unusual remedies scheme has had terrible consequences for both civil liberties and law enforcement. The article is Lifting the 'Fog' of Internet Surveillance: How A Suppression Remedy Would Change Computer Crime Law (.pdf, 40 pages), published in the Hastings Law Journal. On the civil liberties side, the lack of a suppression remedy cuts off an important means of judicial oversight. The Fourth Amendment's exclusionary rule triggers scrutiny of the goverment's investigation whenever criminal charges are filed. The government has to explain and justify the steps it took, and that creates a record to help understand existing practices and to check for abuses. Absent a suppression remedy, however, the government's practices remain mostly secret. Civil suits against the government can be filed in theory, but rarely are filed in practice; the reason in part is that the government faces no burden absent an exclusionary rule to explain the steps it took to solve the case in the first place, and without that explanation it's hard to challenge the government's conduct.

  Less intuitively, the 1986 compromise hasn't served law enforcement interests, either. While prosecutors don't face suppression challenges, the absence of those challenges means that prosecutors don't get a chance to explain to judges how the statutes work (and in some cases how they don't work). With no challenges, there are almost no cases on the books explaining what the government can and can't do. Even worse, the presence of strong civil remedies against both government and non-government actors has provided a boon to plaintiffs' lawyers, who have brought lots and lots of silly civil suits against private parties for violating the Internet surveillance statutes. Judges have had a terribly hard time dealing with these suits; when forced to interpret these laws in the very unnatural setting of a civil suit between private parties, and with no other cases on the books, judges almost always misunderstand the statute and botch the holding in ways with serious but unforeseen consequences for law enforcement. The law of Internet surveillance has ended up unusually vague, and the few court decisions on the books are civil cases that only make matters more confusing.

  I think the answer is to add a statutory suppression remedy for violations of the statutory Internet surveillance laws. I explain the details in the article linked to above. Will it happen? Maybe not this year. But some day, I think it will.
Blogging Hiatus:

I like blogging a lot. Probably too much. So, even when I have a lot of work to get done, I find myself blogging, then responding to emails and other bloggers, then blogging followups, etc. It seems the only way to restrain myself is to swear off blogging. I'm not going to do that permanently, but I will do it for the Summer: I have several articles I need to write, I'm moving to Michigan for a visit in August, and my wife is due to give birth in September. So, if I don't get a lot of work done during the Summer, it's not likely to get done any time soon. I may pay an occasional visit to the blog if something especially important to me happens, such as a California Supreme Court opinion in the Friends sexual harassment case. And I'm not sure I'll be able to restrain myself if a Supreme Court vacancy opens up, though I'll try. Otherwise, I'll see you in a few months. Happy Summer!

I Hate MicroSoft Word: A propos Jim Lindgren's post, have I ever mentioned how much I detest Microsoft Word? Word reformats paragraphs and everything else as it wishes and it is sometimes next to impossible to trick it into keeping it to the format you prefer. I assume that someone somewhere knows how to make all this work, but I have been word processing since I paid $4500 for an NBI standalone word processor in 1981, and word processing programs are simply not supposed to be that hard to figure out and control.

In contrast, WordPerfect is an amazingly elegant and transparent way to write. I know all about how it lost its market share. WordPerfect for Windows was initially awful (though some blame that on Microsoft too). I stuck with WordPerfect for DOS (requiring me to reboot into DOS whenever I wanted to word process) until WordPerfect for Windows 95 came along. From then on it was sweet and had gotten sweeter ever since.

The only thing that Word does better than WordPerfect (and it is substantially better) is "track changes" when editing a document. Here Word really shines. But I write all my articles and correspondence in WordPerfect and convert to PDF (which WordPerfect includes at no charge!) or Word when necessary. Thanks to PDF, I rarely need to convert to Word. I only use Word to read the documents of others, and deal with articles in press.

Do not bother to write with ways to learn how to make Word work properly. I know from experience that a word-processing program should not require any more time than I already have invested over the years to do simple document creation and formatting.

So long live WordPerfect (though one never knows how long it will survive)!
Sunstein-Barnett Debate, Round 4: My response to Cass Sunstein's latest foray on the so-called "Constitution in Exile" is up now on the LegalAffairs Debate Club. Only one more round to go.
Conference on The Political Economy of Terrorism:

The Program in Economics, Politics and the Law at the James M. Buchanan Center for Political Economy is holding a Conference on the Political Economy of Terrorism at George Mason University School of Law on Tuesday, May 24 and Wednesday, May 25, 2005. Information about the program is available here.

The papers will be published in a special volume of the journal Public Choice.

ANOTHER MS WORD QUESTION: ADJUSTING BOTTOM MARGINS WITH FOOTNOTES.--

OK, Eugene got help with an MS Word problem, so I thought I'd ask for help on an MS Word question. I am having problems with pages on which there are footnotes. Only a few pages in this manuscript have footnotes, but for some reason, the bottom margins (white space below text and footnotes) on pages with footnotes are larger than on other pages. Any ideas on how to get more text on pages with footnotes, so the pages go down to the regular bottom margins?

Comments are on.

UPDATE: I finally got an answer. Thanks to everyone who took the trouble to give me advice, and especially to Beau, who solved my problem.

Comments are now off.

Related Posts (on one page):

  1. Word v. WordPerfect:
  2. I Hate MicroSoft Word:
  3. ANOTHER MS WORD QUESTION: ADJUSTING BOTTOM MARGINS WITH FOOTNOTES.--
28 Comments
Holocaust Memorial Day:

Today is Yom HaShoah--Holocaust Memorial Day. My grandmother was descended, on her mother's side, from a prominent and prosperous family line in Western Poland named Tetenbaum. Her closest Tetenbaum relatives (other than her mother's sister, who married a man named Bogusz, moved to Germany, had two sons, and were all murdered), the seven sons of her grandfather and his second wife, left for the U.S. after the patriarch's death in 1902. Among other things, they opened a successful department store in New York, the Fortunoff's of its time. I've been told that all Tetenbaums in the U.S. descend from the grandfather and his two brothers; a quick Google search shows that many Tetenbaums have done quite well for themselves in the U.S.

My grandmother's own father died in a horse and buggy accident in 1905, leaving her mother with five daughters, all of whom left for the U.S. over time (my grandmother's fascinating account of her childhood in Poland can be found here).

Unfortunately, not all of the Tetenbaums got out in time. The names of the murdered victims can be found here.

A Revisionist View of Bolling v. Sharpe:

In yesterday's installment of the Sunstein/Barnett debate, Sunstein raised the case of Bolling v. Sharpe, holding that the federal government may not segregate schools in the District of Columbia. Randy responded:

You are right to point out that the Supreme Court's decision in Bolling v. Sharpe is very difficult to reconcile with the text of the Constitution. For this reason, you know that among constitutional scholars of all stripes Bolling is one of the most controversial and difficult cases ever decided by the Court. I do not have a fully worked-out opinion on this complex issue, but suppose that a commitment to originalism entails the reversal of Bolling.

I have an article forthcoming on Bolling in the Georgetown Law Journal, in which I explain that Bolling has been incorrectly interpreted as a "reverse incorporation" case applying 14th Amendment equal protection standards to the Federal government under the Fifth Amendment, when it was really a pure Lochnerian due process case, a fact Warren ultimately chose to obscure in the final opinion. I conclude:

[W]ith its roots in Buchanan v. Warley and the 1920s educational liberty cases, the liberty right to be from from compelled segregation in education is perhaps better-grounded than the [currenly recognized] liberty right to terminate one’s pregnancy, to engage in homosexual sodomy, or to be free from arbitrary punitive damages awards. This will not satisfy critics who oppose the Court’s substantive due process jurisprudence across the board. But for the vast majority of legal scholars who do support the Court’s current substantive due process jurisprudence, Bolling should be an easy case to defend.

Hentoff Piece on the "Constitution in Exile":

I don't have time or energy to provide an extended critique, but, even aside from its adoption of the phony "Constitution in Exile" meme, this Nat Hentoff piece is extremely weak. For example, he conflates the tiny minority of legal scholars who support a revival of Lochner with the much greater number who think that the New Deal Court went too far in completely eviscerating the Constitution's limits on federal regulatory power. Contrary to Hentoff's suggestion, the strongest advocates of Lochner on the Court right now are not Thomas, Scalia, and Rehnquist, but Souter and Kennedy, who have consistently adopted the view, implicitly and explicitly, that the only thing wrong with Lochner was that it protected economic rights. By contrast, applying Lochnerian reasoning to matters of personal autonomy (and explicitly relying on the Lochnerian precedents of Pierce v. Society of Sisters and Meyer v. Nebraska, both decided at the height of the Lochner era and relying on Lochner itself) is perfectly acceptable. And it's not at all clear, given his opinions on punitive damages, that Kennedy even completely accepts this limited critique of Lochner.

Ironically, Hentoff negatively contrasts the Rehnquist Court's baby steps toward reviving the Constitution's protections of federalism to liberals' "Shadow Constitution... under which the government has affirmative obligations to alleviate inequality, protect people from harm..." Besides being part of the American constitutional tradition for 150 years before the New Deal, limitations on federal power at least have the virtue of actually being in the text of the Constitution. Perhaps to turn the rhetorical tables on the "Constitution in Exile" nonsense, conservatives and libertarians should start speaking of the superiority of enforcing the "Actual Constitution" as opposed to the "Shadow Constitution."

UPDATE: Of course, not all liberals accept Hentoff's view of the "Shadow Constitution." As a reader reminded me via email, in his debate with Randy, Sunstein wrote, to his credit: "I don't think the Constitution requires government to provide a decent minimum for all; if people are starving, the Constitution doesn't require government to respond."

Wednesday, May 4, 2005

How Much Would You Pay for a trip to the minor leagues? If you'd be willing to pay a lot, check out this auction on Ebay. More on the story here.
Dignity, Civility, Adults, and Children:

Michelle Malkin complains:

[Mrs. Bush's] off-color stripper and horse jokes [at the White House Correspondents' Dinner] crossed the line. Can you blame Howard Stern for feeling peeved and perplexed? And let's face it: if Teresa ("I'm cheeky!") Heinz Kerry had delivered Mrs. Bush's First Lady Gone Mildly Wild routine, social conservative pundits would be up in arms over her bad taste and lack of dignity.

The First Lady resorting to horse masturbation jokes is not much better than Whoopi Goldberg trafficking in dumb puns on the Bush family name. It was wholly unnecessary.

Self-censorship is a conservative value. In a brilliant commencement speech at Hillsdale College last year Heritage Foundation president Ed Feulner called on his audience to resist the coarsened rhetoric of our time: "If we are to prevail as a free, self-governing people, we must first govern our tongues and our pens. Restoring civility to public discourse is not an option. It is a necessity."

Lighten up, you say? No thanks. I'd rather be a G-rated conservative who can only make my kids giggle than a South Park/Desperate Housewives conservative whose goal is getting Richard Gere and Jane Fonda to snicker. Giving the Hollyweird Left the last laugh is not my idea of success. . . .

It seems to me that such criticism of Laura Bush's humor is misguided, because it misses a couple of critical distinctions:

  1. Dignity vs. Civility: Whoopi Goldberg's Bush jokes at a Democratic fundraiser in 2004 were criticized not because they contained sexual innuendo as such, but because they were rude — they were vulgar, mean-spirited attacks.

    There was nothing uncivil about Laura Bush's friendly humor. Now it might have been undignified, but while we should (nearly) always be very civil, there are times to be more dignified and times to not worry that much about dignity. There are different standards of propriety for an intimate dinner than for the State of the Union address. There are different standards of propriety for a function involving professionals, especially ones from a circle in which mildly off-color humor is not uncommon, than for church. (I should say that not only urbane coastal circles appreciate some mildly off-color humor; my understanding is that Western ranchers have been known for this, too.)

    Civility in public discourse is great. Dignity in dinner-time humor is not as necessary and not even always desirable.

  2. Adults vs. Children: "G," recall, is rating aimed at advising parents about whether a movie is suitable for their children. I don't see much that's improper — or even unconservative — about having different standards for what one says around adults than for what one says around children. Some things, of course, are vulgar enough to be unpleasant even when said around adults; and naturally people will differ on such questions, as they do on other questions of taste. But it's a mistake to measure proper speech in adult company by the same standards suitable for children.

  3. Likely Willing Listeners vs. Likely to Be Offended Listeners: This is the toughest line of all to draw, especially when one is speaking to a group of 3000 people; but all of us have to draw it in some measure. Walking around in public wearing sexually themed remarks on one's T-shirt is different from speaking to people whose sentiments and tastes one can in some measure estimate, and who one has reason to think will find the remarks funny or at least not terribly offensive.

    My sense from all I've heard is that Laura Bush did properly gauge her audience's views. Some people who had heard about what she said have obviously gotten offended; but not many, and (to my knowledge) very few of those who were actually in the room, as a sort of captive audience for her humor. I suspect she wouldn't make the same jokes in front of a convention of Methodist ministers (apologies in advance if I've misjudged the Methodists here!). And I doubt that one can fault her for seriously offending her audience.

So the bottom line: I think both "everyone should say anything they want, and no-one should criticize them for it" and "any off-color humor anywhere is in bad taste" aren't terribly sound approaches. Like much that goes on in social existence, the rules have to be complex, nuanced, and context-sensitive; analogies should be made cautiously, so that the friendly bit of naughtiness isn't confused with nasty vulgarism, and children aren't confused with adults. Conservatism at its best has been quite aware of all this. And Laura Bush seems more in tune with it here, I think, than Michelle Malkin.

Testifying at Patriot Act Hearing Tomorrow: I am going to be testifying tomorrow about the Patriot Act at an oversight hearing before the House Judiciary Committee's Subcommitee on Crime, Terrorism, and Homeland Security. The topic is the Patriot Act's emergency disclosure provision, a provision that allows ISPs to disclose their customers' records in exigent circumstances. You can access my written testimony prepared for the hearing here (.pdf, about 6 pages). I don't know if C-SPAN will be televising the hearing, but you can watch via a live webcast tomorrow morning at 10 am from here.
Family Research Council Opposing Vaccination:

New Scientist reports:

Deaths from cervical cancer could jump fourfold to a million a year by 2050, mainly in developing countries. This could be prevented by soon-to-be-approved vaccines against the [sexually transmitted HPV] virus that causes most cases of cervical cancer . . . . [T]o prevent infection, girls will have to be vaccinated before they become sexually active, which could be a problem in many countries.

In the US, [however,] religious groups are gearing up to oppose vaccination . . . . "Abstinence is the best way to prevent HPV," says Bridget Maher of the Family Research Council, . . . [which] has made much of the fact that, because it can spread by skin contact, condoms are not as effective against HPV as they are against other viruses such as HIV.

"Giving the HPV vaccine to young women could be potentially harmful, because they may see it as a licence to engage in premarital sex," Maher claims . . . .

(Thanks to InstaPundit for the pointer.)

This strikes me as a pretty wrongheaded attitude on the Family Research Council's part. I highly doubt that many women are now avoiding premarital sex because of the risk of HPV; I doubt therefore that more than a few women will start having premarital sex simply because they learn that they've been vaccinated. Moreover, premarital abstinence isn't a perfect way to prevent HPV: Mother Nature doesn't distinguish husbands from casual lovers for purposes of deciding whether a virus is communicated, and many an abstinent woman marries a man whose past isn't as chaste as hers. (The vaccine, at least at this stage, doesn't seem perfect, either, but the vaccine can still be of help even to women who don't have sex before they marry.) Finally, to the best of my knowledge babies can get HPV from their mothers as they pass through the birth canal -- hardly a family-friendly result.

Naturally, there are empirical questions involved here: If HPV vaccination does lead to much more premarital or extramarital sex, people may ultimately conclude -- even on purely public health grounds, and especially on moral grounds, if they think such sex is immoral -- that the vaccination would be counterproductive. But I suspect that the pro-promiscuity effect of the vaccination would be extremely slight, and vastly outweighed by the decrease in suffering that a successful immunization program may yield.

Finally, I wonder how far the Family Research Council would take this. The availability of antibiotic treatment for syphilis, gonorrhea, and other bacterial sexually transmitted diseases similarly decreases the cost of sex, and may thus increase people's tendency to engage in sex. The effect is probably greater, since those diseases are better known, I think, than HPV. The prospect that treatment will be available seems as likely (or as unlikely) to be seen "as a licence to engage in premarital sex" as vaccination against HPV would be. (One generally vaccinates against viruses and uses antibiotics against bacteria, but I'd think that the attitude-altering effect of the two would be similar, even if not completely identical.) Would the FRC urge that people not be offered treatment for these diseases?

Taxes and Bankruptcy Follow-Up:

TaxProf Blog took note of my post a few weeks back on taxes and bankruptcy filings. I observed that there was little good empirical evidence on the effect of tax liabilities on bankruptcy, but that tax liaiblities are a factor in as much as 10% of bankruptcy filings, more than college expenses, death in the family, or gambling. The source for this was a Gallup Poll in 1997 (which I cited in my 1999 article with Edith Jones on means-testing in bankrutpcy), the results of which are reproduced in Vern McKinley's Regulation article here.

Just to make clear, I didn't say that taxes were the #1 cause of bankruptcy filings (as TaxProf summarized what I said), nor do I believe that is the case. What I said is that tax liabilities may be an understudied and underappreciated cause of bankruptcy filings. This would be especially the case if the effect of taxes on causing bankruptcy were defined as broadly as the effect of some other factors that cause bankruptcy have been defined. Moreover, if we take into account the effect of taxes on income and savings, as well as the fact that taxes are nondischargeable in bankruptcy and so are likely to be paid by strategic debtors who allow other dischargeable debts to go unpaid, then the relationship may be even greater.

Overall, my bottom line observation is that we really don't have good data on the relationship between taxes, household finances, and bankruptcy filings, and that it is worth exploring in more detail.

MS Word -- Forcing a Picture to the Top of a Page:

Another request for MS Word help (with many thanks again to those who had responded to early requests): I need to insert some pictures into my document. Usually, pictures in Word go to a fixed place within the document, for instance between two paragraphs. Unfortunately, if the picture takes up, say, 2/3 of a page, then if it starts 1/3 of the way down a page or later, Word skips the rest of the page, so it can the picture at the start of the next page.

I'd like to do what one often sees in printed books -- a picture is forced to the top of a page, and the text wraps around it. That means the picture is no longer sure to be in between a couple of paragraphs, but that's fine; I can just refer to the picture by its figure number (if I include such a caption), or some other way. The important thing is that I don't get all that unnecessary white space just because the picture can't fit in one particular place in the middle of a page and therefore has to be moved to the top of the next page.

Any suggestions? Please post them to the comments. Many thanks!

10 Comments
Arrested for Asking a Vulgar Question:

Vince Finaldi points me to the affidavit justifying the arrest of a student for asking a rude question at an Ann Coulter speech. If the facts in the affidavit are accurate, then it looks like the student has an excellent First Amendment defense.

The student is not being prosecuted for heckling, in the sense of shouting things while the speaker was speaking; content-neutral heckling bans, I think, would be quite constitutional if properly drafted, but that isn't involved here. Rather, he's being prosecuted for asking "You say that you believe in the sanctity of marriage . . . . How do you feel about marriages where the man does nothing but fuck his wife up the ass?," and then going back to his seat while "making a repeated motion with his right arm and hand, which was cupped in a circular shape, towards his crotch area simulating masturbation." This, the affidavit says, was "disorderly conduct" under Texas law, which is to say "abusive, profane, and vulgar language and obscene gesture," and it's unprotected because it supposedly "incited an imminent breach of the peace of the peace within the crowd," by provoking some of the audience to scream, shout, and boo, and by leading "a few" of Coulter's supporters to "st[an]d up as if to chase down" the questioner.

But such speech, even if vulgar, is constitutionally protected unless it contains "personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction." See Cohen v. California, 403 U.S. 15 (1971); Duran v. Furr's Supermarkets, Inc., 921 S.W.2d 778 (Tex. App. 1996).

Simply getting the crowd riled up doesn't make the speech unprotected. Simply saying offensive things to Coulter doesn't make the speech unprotected. If the student had personally called her some epithet, then the matter might have been different. But just asking a rude question that includes a profanity (but not one used to describe Coulter) is not unprotected, and neither is making sexually suggestive gestures (again, when they didn't seem to be personal insults of Coulter).

I should stress that the student's speech was rude. What I take to be the substantive question (what cultural conservatives who support morals legislation think about the fact that many upstanding married people engage in "sodomy," chiefly oral sex but sometimes also anal sex) is quite legitimate, but there's no reason to throw in profanity or sexual gestures. Also, if the person had been speaking out of turn (i.e., heckling) and was prosecuted for that, the matter would be very different. But based on what I see in the affidavit, any arrest and prosecution of this student would be unconstitutional.

Humor and Wit in Supreme Court Opinions:

Can you think of deliberately amusing or witty -- in the sense of trying to get the reader to smile, even if not to guffaw -- passages from Supreme Court opinions? Here's one that I remember, from Justice Stevens' concurrence in Widmar v. Vincent (1980) (paragraph break added):

Because every university's resources are limited, an educational institution must routinely make decisions concerning the use of the time and space that is available for extracurricular activities. In my judgment, it is both necessary and appropriate for those decisions to evaluate the content of a proposed student activity.

I should think it obvious, for example, that if two groups of 25 students requested the use of a room at a particular time -- one to view Mickey Mouse cartoons and the other to rehearse an amateur performance of Hamlet -- the First Amendment would not require that the room he reserved for the group that submitted its application first. Nor do I see why a university should have to establish a "compelling state interest" to defend its decision to permit one group to use the facility and not the other. In my opinion, a university should be allowed to decide for itself whether a program that illuminates the genius of Walt Disney should be given precedence over one that may duplicate material adequately covered in the classroom.

I take it that Justice Stevens isn't just trying to provide an illustration of a permissible content-based restriction; rather, the surprising outcome of the Mickey Mouse vs. Hamlet comparison, under which Mickey comes out the winner, is meant as a little throwaway element of levity. Again, not occasion for belly laughs, but I think it qualifies as humor.

Please post other such examples to the thread, but please follow these rules:

  1. Please limit yourself to opinions in Supreme Court cases.

  2. Please limit yourself to quotes that are funny or at least amusing; if they're serious, it doesn't matter how eloquent they may be. Sarcasm is a hard case, because it is a form of wit and has some connections to humor; but I'd say that not all sarcasm qualifies, and the point must be to get at least some readers to crack something of a smile.

  3. Please check other comments first, to make sure that you aren't duplicating something that someone else has already posted.

  4. Please include the literal quotes (for instance, from the materials on findlaw), rather than just working from vague memories.

Also, please feel free to let others who might be interested know about this -- I'd like to get as comprehensive a list as possible. Thanks!

54 Comments
Change of Heart (re: MGM v. Grokster)

A few months ago I fearlessly predicted that the Supreme Court would side with the entertainment industry plaintiffs, reverse the 9th Circuit, and find Grokster liable for "inducing" copyright infringment (through the distribution of its software). Maybe I've just talked myself into it, but having spent a fair bit of time with the case the last couple of months (I authored an amicus brief, submitted on behalf of the Am. Conservative Union and the Nat'l Taxpayer's Union), siding with the defendants, and just last week I appeared on WHYY's "Radio Times" to present Grokster's side of the argument) I think my initial prediction was wrong.
For some pretty gnarly procedural reasons, I don't think the Court will be able to reach the question of whether Grokster can be liable for "inducement" -- actively encouraging, through advertising or otherwise, others to infringe copyright. That leaves just the question of whether distribution of its software, alone, can be considered "contributory" infringement. On that question, I think the Court's going to get it right -- closely following the "Betamax" case and holding that the distribution of stuff like this can only constitute infringement if it has "no substantial non-infringing uses," and because the Grokster software does have "substantial non-infringing uses," the plaintiffs have to satisfy themselves with going after the actual infringers, not the tool-provider.

Sublime Porte:

In United States v. Cooper, an important First Amendment case from 1800, one sentence from the allegedly seditious publication was:

Mr. Adams had not yet projected his embassies to Prussia, Russia, and the Sublime Porte.

What was the Sublime Porte? Answer here.

Sunstein-Barnett Debate, Episode III: My reply to Cass Sunstein's latest post on the "Constitution in Exile" is now up at LegalAffairs' Debate Club. For another take on the so-called Constitution-in-Exile movement, check out Michael Greve's essay Liberals in Exile.
Constructive Response to British Boycott of Haifa and Bar-Ilan Universities:

I've been searching for a constructive response to the obscene boycott of Haifa and Bar-Ilan universities in Israel by the British Association of University Teachers. An email in my inbox today suggests one:

Scholars for Peace in the Middle East Working With Bar-Ilan and Haifa Universities To Develop International Affiliate Faculty Status in Protest of Boycott by British.

Scholars for Peace in the Middle East is working with department heads and deans at Bar-Ilan University and Haifa Universities to develop a mechanism for affiliate faculty status at both Universities for faculty members from around the world to show support for these two important institutions targeted by the British Association of University Professors. It is important that institutionally based full-time, part-time and adjunct faculty of good will to support our faculty colleagues in Israel by requesting affiliate faculty status.

Academics are being asked to submit a letter requesting an affiliate appointment to each university with a CV to ScholarsforPeace@aol.com. In addition, colleagues are urged to write to the Association of University Teachers in the United Kingdom to express their condemnation of the boycott and to advise them that they are seeking affiliate status with these universities. Those letters should go to:

AUT Headquarters: hq@aut.org.uk ; Aut General Secretary, Sally Hunt sally.hunt@aut.org.uk; AUT President, Angela Roger president@aut.org.uk, Assistant General Secretary for International Affairs, Brian Everett, brian.everett@aut.org.uk with a copy to Dr. Ed Beck, President of Scholars for Peace in the Middle East, ScholarsforPeace@aol.com

Feel free to add any personal statement of support and sign with you name, rank, institutional address and contact information with email address. Letters and resumesill be forwarded to the appropriate officials at each University.

Tuesday, May 3, 2005

Obscene Snow Sculpture, or Frivolous Prosecution?

Eric Muller points to this story:

Two Laramie men are facing obscenity charges for allegedly building a snow sculpture of a phallus in their front yard.

Brandon Arp, 20, and Aric Davenport, 19, were arraigned Friday in Albany County Circuit Court on charges of promoting obscenity. . . . If convicted, they could each face up to one year in jail and a $1,000 fine.

According to police reports, the men made the sculpture in the 1200 block of Custer Street on April 21. Reports say the sculpture was “offensive to other residents in the area.” . . .

If the news account is correct, then it sounds like the defendants are clearly not guilty. Under Wyoming obscenity law, which tracks the First Amendment requirements,

"Obscene" is material which the average person would find:

(A) Applying contemporary community standards, taken as a whole, appeals to the prurient interest;

(B) Applying contemporary community standards, depicts or describes sexual conduct [in this case, lewd exhibition of the genitals] in a patently offensive way; and

(C) Taken as a whole, lacks serious literary, artistic, political or scientific value.

I haven't seen any photographs, but I highly doubt that the penis sculpture "appeals to the prurient interest," which means "appeals to a 'shameful or morbid interest in sex.'" Few people, I think, would find sculptures of a penis to be sexually arousing or even sexually interesting. They may be offensive to many; they may appeal to an interest in vulgar humor; but they don't appeal to an interest in sex, whether or not shameful or morbid.

Likewise, while the sculpture is an "exhibition of the genitals," that's not enough for it to be obscene — to be obscene, it must be a lewd exhibition of the genitals, which again requires that it be aimed at sexual arousal. Maybe I'm shortchanging the potential of snow art, but I doubt that a simple snow sculpture of a penis can qualify as lewd.

Maybe I'm missing something; but if I'm right, then the prosecution's case isn't just a loser, but is borderline frivolous. In fact, if Arp and Davenport were arrested, they should have a good case against the police department, because it sounds like there wasn't really probable cause to believe that they had violated a crime — this makes their arrest an unreasonable seizure, in violation of the Fourth Amendment. (They can't sue the prosecutor based on the prosecution, because prosecutors have absolute immunity from lawsuit, even when the prosecution is unconstitutional.)

Finally, one could argue that it's constitutional for the government to bar public display of certain materials, even if they aren't obscene, in order to protect either unwilling viewers or children. I doubt that this can be done as to nonsexual nudity (see Erznoznik v. City of Jacksonville (1975). But in any event, even if such a statute were constitutional, our sculptors aren't being prosecuted under such a statute, and as best I can tell Wyoming has no such statute. According to the news report, they're being prosecuted for obscenity — and this just isn't obscenity.

UPDATE: Reader Ellen Dahlgren pointed me to this article about a possibly similar incident involving a tree in Santa Cruz, where as you might guess the police were mellower about the matter.

"Chords of Revolution": The latest Harvard Magazine has a fascinating profile of Fred Ho, Harvard Class of 1979. Ho is a Marxist baritone saxophonist who likes to spend his time naked and recently helped train security forces for the newly installed king of Cambodia.

  My favorite part of the profile was the juxtaposition of the following two paragraphs. This one appears near the top of the article:
  Ho is an uncompromising Marxist. He currently believes that the capitalist patriarchy should be replaced with its opposite -- a matriarchy -- as a necessary transition stage toward true communism. His music and radical politics, both discovered by the age of 14, are inseparable and dominate his life. "All music is political," he explains, "whether the artist is conscious of it or not. I subscribe to the interpenetration of ideas and material life. I talk the walk."
And this one appears near the bottom:
  Ho earns a moderate living making music because he has only himself to support and because he is a well-organized businessman who competes in the open market for arts funding, frequently winning awards, commissions, and artist-in-residence positions at schools or art colonies. (He recently returned from working with musicians in Alaska as part of the CrossSound Festival.) He cannot apply for grants because his company, Big Red Media Inc., is a for-profit venture.
  I can only imagine his personal statement.
NPR Ombudsman on Blogs:

As Orin quoted below, the NPR ombudsman writes:

American newspapers traditionally and scrupulously segregate fact-based reporting from opinion by designating pages for each. Radio and television try to ensure that opinion remains secondary to reporting. Conclusions should be drawn warily. Bloggers tend not to care if they, and their readers conflate opinion and fact. It's part of the appeal of the blogosphere. . . .

Can the MSM adopt any blog values to attract the younger audience? Or should we wait and see? Perhaps these younger people will outgrow these youthful informational indiscretions and come to their senses -- and back to media that can serve them best . . . .

I would think that younger people (and older people) would prefer media that soundly analyzes what it's writing about, rather than drawing unhelpful analogies. American newspapers theoretically segregate fact reporting from opinion (though not as well as I might like). But on the opinion pages, facts and opinions are indeed mixed, not so much "conflated" as integrated into pieces that analyze and comment on facts. And in many magazines (such as The New Republic or the Nation or the National Review), even more of the pages are opinion pages -- analysis and commentary based on the facts but expressing the author's opinion.

The proper analogy to many blogs is opinion magazines. We don't purport to offer unopinionated fact reporting, any more than the Nation purports to offer unopinionated fact reporting. We try to get our facts straight, but our value to readers is precisely in the commentary (often opinionated) and not in the scrupulously objective uncovering of original facts. There are exceptions, but what I describe, I think, is the rule.

There is no "informational indiscretion" here, whether that phrase is used seriously or half-jokingly. Faulting us for not adhering to the standards -- or perhaps the aspirations -- of NPR simply betrays a misunderstanding of the medium. We don't bill ourselves as an NPR, and our readers don't expect it. Readers expect us to be analogous to the essays on NPR, or in other sources of opinion. And I think they get precisely what they expect.

Bargain on Academic Legal Writing --

Or Not. David's post below reminds me that while the second edition of my Academic Legal Writing is available from amazon for $19.95 (the list price), the first edition is being sold by independent sellers at bargain-basement prices of $25 (new), $28.99 (like new, "In perfect physical condition...Used for one semester...Some Highlighting"), $30 (very good), and $37.76 (very good).

Now maybe I'm wrong, but I'm pretty sure that the second edition is actually better than the first, and that much as the first edition ought to be seen as a prized, cherished collector's item, few people have such an enlightened view of the subject. So who's the rocket scientist who's decided to sell used copies of the first edition for more than new copies of the second? (I hope there aren't any rocket scientists who are actually buying them.)

Blogs As "Youthful Informational Indiscretions": The ombudsman for National Public Radio reports on a major goof at NPR recently: When NPR posted a redacted version of a classified government report, they posted a version that could be un-redacted by translating it into another format. Some Internet users realized the error and translated the format; some then posted the un-redacted version of the report on the web, including at some blogs.

  What's the lesson of the story? Well, one obvious lesson is not to post a version of a classified government document that can be unredacted. Posting that version effectively posted the classified information to the Net, which is really really bad. The NPR ombudsman draws a different lesson, though: he blames the blogosphere.
  [T]he blogosphere has proven once again to be an amoral place with few rules. The consequences for misbehavior are still vague. The possibility of civic responsibility remains remote. It is a place where the philosophy of "who posts first, wins" predominates.
The blogosphere's lack of morals is apparently part of a broader problem facing American youth today:
  American newspapers traditionally and scrupulously segregate fact-based reporting from opinion by designating pages for each. Radio and television try to ensure that opinion remains secondary to reporting. Conclusions should be drawn warily. Bloggers tend not to care if they, and their [mostly young] readers conflate opinion and fact. It's part of the appeal of the blogosphere.
  As news organizations fight to regain their battered credibility and vanishing audiences, the blogs and the number of people who read them continue to grow. The blogs entertain, they provoke, and they are not constrained by journalistic standards of truth telling.
  This is a challenge and a danger for journalism.
  Can the MSM adopt any blog values to attract the younger audience? Or should we wait and see? Perhaps these younger people will outgrow these youthful informational indiscretions and come to their senses — and back to media that can serve them best...
  I have my doubts...
  I tell ya, kids today. First it was that "rock and roll" music; now they've moved on to reading blogs.

  Thanks to Howard for the link. (Oh, and I should say that I wasn't sure if the ombudsman was being serious at first; after reading over the post a few times, though, I don't think it's meant as a joke.)
Bargain on You Can't Say That!

For reasons unknown to me (but that probably don't reflect robust sales, unfortunately), Amazon is now selling the paperback edition of my book, You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws, for 60% off the cover price, or a mere $5.18. Marketplace sellers are selling it for as low as $4.00. You can read some excerpts here.

Hymn of the Breaking Strain:

Today's sad L.A. Times story about an FBI counter-terrorism agent who killed himself, apparently because of job-related strain, reminds me of Rudyard Kipling's Hymn of the Breaking Strain. I thought I'd pass along my favorite stanzas:

The careful text-books measure
(Let all who build beware!)
The load, the shock, the pressure
Material can bear.
So, when the buckled girder
Lets down the grinding span,
'The blame of loss, or murder,
Is laid upon the man.
Not on the Stuff — the Man.

But in our daily dealing
With stone and steel, we find
The Gods have no such feeling
Of justice toward mankind.
To no set gauge they make us --
For no laid course prepare --
And presently o'ertake us
With loads we cannot bear:
Too merciless to bear.

The prudent text-books give it
In tables at the end
The stress that shears a rivet
Or makes a tie-bar bend --
What traffic wrecks macadam --
What concrete should endure --
but we, poor Sons of Adam
Have no such literature,
To warn us or make sure . . . .

We only of Creation
(Oh, luckier bridge and rail)
Abide the twin damnation --
To fail and know we fail.
Yet we — by which sole token
We know we once were Gods --
Take shame in being broken
However great the odds --
The burden of the Odds. . . .

A Correction: Recently I had a chance to talk with Chief Judge Douglas Ginsburg. He offered the following clarifications/corrections of my blog post of April 13 (Supreme Opportunity Lost):

In my post, I referred to (and attributed to Nina Totenberg) the oft-repeated claim that there were students at the party he attended while teaching at Harvard. Judge Ginsburg does not believe that was the case. The party took place during the 1978 academic year at the home of a faculty member. All of the guests he recalls being there were also faculty members or their spouses. It would have been extraordinary for any student to have been present at such a gathering, and no student has, so far as either he knows, ever claimed to have been there. Nor did he recall Ms. Totenberg ever claiming this in her 1987 story. In any event, she clearly does not say so at the link I provided.

I regret relating the exaggerated version of the story. I regret even more that this incident deprived us of a superb Supreme Court justice. Those who wish to know what we missed out on should look at his article in the Cato Supreme Court Review entitled On Constitutionalism (pdf).

Update: A reader writes:

I have always thought that to be true, too, from what I recalled of the news coverage of the incident. It wasn't until the SNL skit featuring Jon Lovitz as Judge Ginsburg that gave me the idea that it was a party where students were present.
(See also Jon Rowe) So THAT is where this came from. Curse you, Lorne Michaels!

Generals on Parenting:

Being a new father, I naturally have all sorts of creative plans for educating my boys when they get several years older -- teaching them probability theory, geography, history, and more. But when I hatch these plans, I try to keep in mind the classic military saying:

No battle plan survives contact with the enemy.

Related Posts (on one page):

  1. Generals on Parenting:
  2. Edmund Burke on parenting:
Debate With Sunstein--Part Deux: My reply to Cass Sunstein's latest post on the "Constitution in Exile" is now up in the Legal Affairs Debate Club.
Janice Brown, Frank Michelman, and Teaching Economics Without the Idea of Scarcity.--

David Bernstein notes that Stuart Taylor criticizes Janice Rogers Brown merely for citing Richard Epstein's Takings book in an opinion, a form of guilt by association. Bernstein notes that in the same opinion Brown also cites liberal Frank Michelman. This reminds me of something Michelman said to me in the 1980s when he came down from Harvard to lecture at the University of Connecticut: that he had proposed teaching a course on economics at Harvard, but without the idea of scarcity. Now that's an odd and unusual idea that is definitely "out of the mainstream"--economics without the idea of scarcity! I know that this sounds like a joke, but I assure you Michelman seemed to be quite serious, and was a bit defensive when we conveyed our skepticism.

Finger Food:

In a frozen custard, and, this time, there is evidence that it's true.

Defending Janice Rogers Brown from Stuart Taylor [IMPORTANT NEW UPDATE at 4:00 PM]:

AUTHOR'S NOTE: My original post on this issue contained a blatant error of fact, for which I take full responsibility. Oddly, I had recognized the importance of this fact, and checked on it several different times, but somehow screwed it up anyway, which, as I said before, will teach me not to blog at 3:00 in the morning while jetlagged from a trip to Israel. I tried to correct the error through strikeouts and whatnot, but I think--and was indeed told--that by doing so I did not succeed in completely eliminating the unfair inference from my original post. Further strikeouts, etc., would leave the post unreadable. I'm not sure what the blog ethics or norms are in this regard, but I decided it was better to rewrite the post to eliminate my own errors and eliminate/edit related critical remarks than to leave them there. So here it is. Apologies again to Stuart Taylor, the Community Rights Council, and EarthJustice for my initial error, and some accompanying rhetoric, that, given the corrected error, was too harsh.

Unlike co-conspirator Orin, I'm not at all impressed with Stuart Taylor's piece on Janice Rogers Brown.

Taylor raises plausible questions about whether Brown's personal libertarian ideology will affect her judgments on the D.C. Circuit, and why conservatives have embraced a judge who, in her speeches, has praised a form of natural-law based judicial activism. However, unlike many circuit court nominees, Brown is not an unknown judicial quantity, but has served on the California Supreme Court and lower courts for many years. Thus, regardless of her rhetoric in speeches given to ideological audiences, we can actually judge her judicial performance on the record. Indeed, as a California Supreme Court Justice sitting on the highest court in the state, she had a lot more freedom of action to try to move the court in a libertarian activist direction that she would as a D.C. Circuit Judge. And I have seen no evidence, including no evidence from Taylor, that her opinions are anything but standard judicial opinions relying on precedent with nothing "radical" or "extremist" about them. In particular, I have seen no evidence that Brown has tried to revive Lochner as a California Supreme Court Justice under the state or Federal Constitution (and under the state constitution such rulings would not be subjected to U.S. Supreme Court review). On the record, I see no reason for the Senate to reject Brown as anything approaching a judicial extremist prone to ignoring precedent. Rather her opinions are sharp, pointed, well-reasoned, and firmly grounded in precedent.

Taylor raises Brown's dissent in San Remo Hotel v. San Francisco, but I think his interpretation of it is misleading. She does not advocate a rule barring laws that "redistribut[e] wealth from one group to another." [see further discussion below.] Rather, she cites both U.S. Supreme Court and California Supreme Court precedents for the proposition that public burdens such as housing the poor may not fall upon the property rights of small groups of public landowners, such as the owners of SRO housing in San Remo. Within the context of modern Takings law, this is not radical stuff. (See, e.g., the Warren Court Supreme Court case of Armstrong v. United States (1960): "The Fifth Amendment's guarantee . . . was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.").

[see further discussion below]

According to Taylor: "She also cited with approval a 1985 book, Takings: Private Property and the Power of Eminent Domain. The author, Richard Epstein, has said that his theory would "invalidate much ... 20th-century legislation." But Brown actually cited Epstein in support of the proposition that many regulations of property are in fact constitutional under the Takings Clause. Here is the entire quote:

The law has long recognized, for example, that government might, in the exercise of the police power, act to proscribe a nuisance, and in so doing it need not pay compensation. (See, e.g., Civ. Code, § 3479; Code Civ. Proc., § 731.) Holmes spoke of "an average reciprocity of advantage" whereby a property regulation ultimately works for the enrichment of all, though it imposes specific limitations on the use of certain property. (Penna. Coal Co., at p. 415 [43 S.Ct. at p. 160].) For example, business owners on a popular shopping street might generally agree that their properties would be more attractive, and hence more valuable, if all the businesses used small, attractive signs rather than huge, garish billboards. Nevertheless, without regulation, competitive forces will inevitably cause business signs to become ever larger and more visually intrusive. No business owner wants to be the only one on a shopping street to have a small sign, and transaction costs often prevent owners from coming together to negotiate an agreement that would work to their common advantage. In that case, a regulation that has the immediate effect of reducing property value by restricting sign size, has the indirect effect of enhancing that value for all affected businesses. (See generally Epstein, Takings: Private Property and the Power of Eminent Domain (1985) pp. 195-215.)

Needless to say, this does not remotely resemble an endorsement of the antiredistribution thesis of Epstein's book. [Rather, Brown is referring readers to the section of Epstein's book that discusses, in some detail, the idea of implicit compensation as obviating any constitutional violation of the Takings Clause.]

Indeed, if guilt-by-citation is to be invoked, then perhaps Brown is actually very liberal: after all, in the same opinion she also cites one other academic Takings expert, with a rather different view than Epstein's: Harvard's Frank Michelman.

So where did Taylor get the idea that Brown's opinion (which I urge you to read, it can be found at 27 Cal.4th 643) endorses a radical libertarian approach to the Takings Clause? Or that she endorses Epstein's theory of Takings?

Taylor's critique appears to rely on a report by the left-wing Community Rights Council and EarthJustice on Brown. The report states (deceptively) that Epstein's Takings book is "cited favorably" in Brown's San Remo dissent and that Epstein enthusiastically describes his views as "'invalidat[ing] much of the twentieth century legislation.'"

In short, Taylor's discussion of Brown's opinion in San Remo bears striking resemblance to the Community Rights Council's exaggerated interpretation of that opinion. I am disappointed that a normally excellent journalist like Taylor, whose work I've often admired, would rely on distorted information in a report by a biased interest group.

UPDATE: Taylor responds via email [I've deleted the part where he corrects my error, but an error is indeed what I made]: "[Rogers] does advocate a rule barring laws that redistribute wealth from one group to another. Relevant portions of her dissent follow:"

Our takings jurisprudence--both state and federal--has become so labyrinthine and compartmentalized that attempts to find just the right standard for the case often entirely miss the underlying point of the exercise. We speak of ad hoc inquiries, relevant factors, per se takings, and means-end . . . relationships. We chip away at the problem with separate lines of cases addressing distinct issues such as development permits and price controls. And all these efforts, valid as far as they go, leave us still groping for a basic conceptual approach that takes seriously the constitutional prohibition against uncompensated takings of private property. Thus, like the Wizard of Oz, we mystify our audience with the look and feel of great erudition, while concealing the humble reality that we have yet to solve the problem in a satisfactory way.

********

"But the corollary of this rule--one I think is implicit in the takings clause of the state Constitution--is that a regulation is a taking if, rather than promoting 'an average reciprocity of advantage' it is merely designed to benefit one class of citizens at the expense of another; that is, if it simply shifts wealth by a raw act of government power."

[Bernstein responds: First, near as I can tell, Brown is only talking about regulations of real property--which is what the Takings clause applies to, whereas Taylor claimed she advocated a rule barring all laws that redistribute wealth (and mentioned, as an example in a different part of his article, Social Security). Richard Epstein indeed thinks that all redisributive laws are unconstitutional under the Takings Clause. Between Taylor's use of "laws" rather than "property regulations," and his claim that Brown endorsed Epstein, I assumed, fairly I think, he was claiming that Brown, like Epstein, believes that all redistibutive laws, not just property regulations, are unconstitutional, which cannot be gleaned from this opinion. Second, it's not at all clear how far Brown would actually go with her even more limited idea. Taylor deletes, in the quotation above, the fact that Rogers, on the issue of reciprocity of advantage is citing to that radical libertarian (sarcasm: off) Holmes's opinion in the Pennsylvania Coal v. Mahon case, and indeed she consistently cites that opinion. [Note: I do not mean to claim that Taylor is trying to mislead anyone by deleting the citation to this opinion--citations are often omitted in legal quotations; it's just that I think this citation is significant.] And her actual legal conclusion, is this: "In short, it might be perfectly legitimate for the City to help the low-income residents of San Francisco [note concession that redistribution is permitted if the burden is placed on the community as a whole], but it may not do so at the expense of some small class of persons simply by legislating a transfer of property rights." So it's possible that Brown has a rather robust theory of the Takings Clause (but one in keeping with cases such as Armstrong and Justice Scalia's concurrence in the Pennell case), but not one nearly as radical as Richard Epstein's, or as what Taylor seems to attribute to her. It's also possible that Brown would only apply her theory when the taking goes "too far," as in Mahon. Her actual legal conclusion in the case, as noted above, is in fact based not on a novel theory of takings, but on federal and state precedent (though, it's fair to note that Takings law is an incredible morass, with opinions all over the map, and Brown choosing to rely on favorable ones). Finally, Brown's opinion was only about the state constitution's takings clause, which is both somewhat broader than the federal takings clause--"Private property may be taken or damaged for public use only when just compensation ... has first been paid to ... the owner"--and is not governed by federal precedent.]

**************** On the other hand, on reflection I concede that Professor Bernstein makes a fair point in criticizing me for reading too much into Justice Brown’s citation of Richard Epstein’s book.... — Stuart Taylor

FURTHER UPDATE: Clayton Cramer compares liberal outrage over Lochner with lack of liberal outrage over Lawrence. I agree that the cases are actually quite similar: traditional police power functions (regulation of working conditions, morals sex laws) declared by the Court to be unconstitutional because they violated an important right and had no third-party externalities or paternalistic health reasons (none at least asserted in Lawrence) to justify exercise of the police power. The big difference, I think is that Harlan made a persuasive case in the Lochner dissent that the law did perhaps protect workers' health, while this was not at issue in Lawrence due to the state's choice to argue that its law was based totally on moral disapproval, with no health rationale. Thus, Lawrence is easier than Lochner.

MS Word Question:

In a few days, I'll need to print out the final, camera-ready version of my 1000+ page First Amendment and Related Statutes casebook (the second edition). Unfortunately, I'm running into two glitches with Microsoft:

  1. Some first lines of paragraphs are being printed half a line above where they should be, so they partly overprint the last line of the preceding paragraph.

  2. Some last lines of pages are being partly duplicated as the first line of the next page.

The problems are never consistent -- it doesn't repeat when I reprint the page. But it does tend to happen on several pages in every thousand.

Does anyone know a way of avoiding this problem, other than switching away from MS Word? If you do, please post the solution as a comment, or e-mail it to me at volokh at law.ucla.edu. Thanks!

22 Comments

Monday, May 2, 2005

Prosecutorial Misconduct by Nancy Grace?: Nancy Grace is a fomer prosecutor from the Atlanta Fulton County District Attorney's Office who is now a legal commentator for Court TV and CNN. Given that Grace comments so frequently on matters of criminal law, I wonder if she'll comment on the Eleventh Circuit's opinion today in Stephens v. Hall. In an opinion by Judge Pryor, the Eleventh Circuit considered the remedy for a case in which a certain Fulton County District Attorney's Office prosecutor was found by the court to have "played fast and loose with her ethical duties" under the Constitution. The name of the prosecutor? Nancy Grace.

  Thanks to Section 1983 for the link.
Andrew Sullivan on Michael Oakeshott:

This is a couple of years old, but I just stumbled across it. It is a lecture by Andrew Sullivan on Oakeshott.

I love the way that Sullivan captures the experience and feeling of reading Oakeshott, the richness of the Oakeshott reading experience. Consider this passage:

Oakeshott loved Shakespeare. In all the odd and quirky characters--from Falstaff to Bushy, from Benedik to Hamlet and Macbeth--he saw what a free society could create, not in terms of projects or goals or abstractions, but in terms of the human beings that are allowed to flourish with all their idiosyncrasies and faults and character traits.

This was for Oakeshott a wonder to behold. Every person he met was a character, or at least a potential character. And he saw the point of liberal democracy as giving individuals the ability to more fully become themselves, to ripen and mature in all their idiosyncrasies and differences.

All of life, Oakeshott argues, is an adventure. Let's see what I can become. Let's see what I can make of my life. Let's greet life and its difficulties and exigencies and unpredictable nature as an opportunity.

In writing my article on "The Rule of Law, Freedom, and Prosperity" a few years ago, in the end I finally decided that Oakeshott holds the key to understanding what the rule of law is all about. I think there is something going on in Oakeshott that is complementary but richer than Hayek's views on the rule of law. On the other hand, most readers don't fully understand Hayek's views on the rule of law either, resting their critique on Hayek's views as expressed in The Constitution of Liberty, rather than the fully developed views that come out in Law, Legislation, and Liberty. (I elaborate on this observation in the second half of this article).

You can find an excerpt from Oakeshott's classic essay "On Being Conservative" here.

FTC Mother's Day E-Cards:

No I'm not kidding. You can get it here. Offering tips on how to keep personal information secure.

Spyware is Already Illegal, But Let's Pass A Law Banning It Anyway: Are you annoyed by spyware? Would you like it to be illegal? Well I have good news for you: it already is.

  Most spyware violates 18 U.S.C. 1030(a)(2), part of the Computer Fraud and Abuse Act of 1986, which broadly prohibits unauthorized access to computers. Most spyware also violates equivalent state unauthorized access laws, too (for a review of these federal and state laws and what they do, see this article). Federal or state prosecutors could bring criminal cases against spyware companies for installing spyware at any time. Some spyware also appears to violate the Wiretap Act, 18 U.S.C. 2510-22, which prohibits intercepting your private Internet communications without your consent. The Wiretap Act authorizes both criminal and civil suits — and the civil suits provide attorney's fees, statutory damages, and even the possibility of punitive damages for victorious plaintiffs. And to the extent that spyware involves deceptive trade practices, spyware can also be regulated by the FTC. I'm not an expert in the jurisdiction of the FTC, but my understanding is that it is broad enough already to regulate spyware.

  Of course, you'd never know this if you followed recent goings on in Congress. Various bills have been proposed that would (gasp!) make spyware a crime, or else give jurisdiction over spyware to the FTC. I haven't looked closely at each of the proposed bills, but the ones I did look at seemed to mostly replicate existing law. Maybe the folks in Congress just don't understand current law; it's possible, given that the Justice Department has't pursued any spyware cases on the criminal front, the FTC apparently hasn't regulated spyware aggressively, and plaintiff's attorneys don't understand the Wiretap Act well enough to see the claim. Or maybe Congress just wants credit for solving a problem, and they won't let the fact that they already solved this problem a long time ago get in the way.
White House Correspondents Dinner: Those who missed the White House Correspondents Association Dinner on Saturday night on C*SPAN can catch it (for the next 12 days) on its website here (RealOne Player required). The President starts speaking at 1:15 into the webcast and he is almost immediately interrupted by Laura.who then does her routine. It is pretty funny. Cedric the Entertainer follows her at around 1:25.
MCI Merger:

Interesting discussion by Ribstein, Bainbridge, and Hurt on the MCI-Verizon-Qwest merger dance.

I'm with Ribstein on this one--show me the money:

To echo my prior thoughts on this deal (see my post linked above, and link back to earlier posts) this doesn’t make sense for MCI shareholders. What they want is the best price they can get for their stock. If they think, having gotten this price, that Qwest-MCI is not the best investment for their portfolio, they can sell it and buy something else. Unless winning the bid causes Qwest stock to drop, the former MCI shareholders would have $4.00 more a share with which to make their alternate investment.

In other words, look at current value, and put away the crystal ball.

Questions About Mortality Effects of Obesity:

John Luik, "Only the Plump Die Young?"

Stuart Taylor on Janice Rogers Brown: Stuart Taylor is asking powerful questions about the nomination of Janice Rogers Brown. I haven't followed Brown's nomination closely, but Brown's speeches (linked to in the Taylor piece) should be enough to give judicial conservatives serious heartburn. Thanks to ACSBlog for the link.
The Frists and Princeton:

Will they be asking for a refund?

Another Odd Bushism:

I'm pleased to mention again that Slate has indeed finally started providing links to original sources — often streaming video and audio, which is especially useful — when it picks on President Bush's alleged Bushisms. That happened, I think, a month or two ago, and it continues to be the case.

But the substance of the Bushisms continues to appear often quibbling and sometimes baffling. Here's today's:

"We expect the states to show us whether or not we're achieving simple objectives — like literacy, literacy in math, the ability to read and write." — on federal education requirements, Washington, D.C., April 28, 2005

What exactly is the problem here? If the joke is that "literacy in math" is wrong, then the error is in the joke, not Bush's statement; "literacy" is defined to include "The condition or quality of being knowledgeable in a particular subject or field." I don't find "literacy in math" to be the most elegant usage, but I don't think it's particularly risible, either. A search for "math literacy" suggests that many others agree. My guess is that the President started saying literacy, then realized he wanted to also mention math, so he used the not uncommon concept of "literacy in math" to make clear that he wasn't just focusing on purely reading-and-writing literacy.

Or maybe the problem is that Bush omitted an "and." Bush's statement can just as plausibly be transcribed (given the timing of the pauses, probably more plausibly transcribed) as:

We expect the states to show us whether or not we're achieving simple objectives, like literacy — literacy in math, the ability to read and write.

Maybe there should have been an "and" between "literacy in math" and "the ability to read and write."

But even perfectly articulate people often speak more choppily than they'd write; and sometimes even in writing, people omit the conjunction in a list for rhetorical effect (though that usually happens in a list of three or more).

And more broadly, very few people can be relied on being constantly elegant, or even constantly grammatically correct, in extended extemporaneous commentary. I like to think that I'm a pretty articulate user of English, but I've shuddered when reading transcripts of what I say. I wager the same is true for many other speakers. What's funny, insightful, or otherwise valuable about picking on Bush for something like this?

UPDATE: A reader suggests: "I suspect that the 'joke' is that Bush listed 3 things: literacy, literacy in math, and literacy, i.e. that he didn't 'realize' that literacy means 'the ability to read and write' and so he listed it twice not realizing that he was, and thus the joke is that he doesn't even know what the word 'literacy' means when calling for others to be taught it." But if that's a joke, that flows from what is likely a mistranscription of Bush's statement. Bush has a short pause before "like literacy," and a long pause after it. The better transcription is thus:

We expect the states to show us whether or not we're achieving simple objectives, like literacy — literacy in math, the ability to read and write.

Even if I'm wrong that this is the better transcription, it's at least as good a transcription. And this transcription suggests that Bush was either saying "literacy" and then listing two aspects of literacy, or (at worst) saying a word, losing his train of thought for a moment, and resuming the statement by repeating the word, something that speakers very often do.

Toads Punished for Bringing Fire?

The pagano-theological implications of this phenomenon are simply staggering. PARENTAL ADVISORY: Animal violence, obscure classical allusions, organ meats, high ick factor.

A Rare Accurate Supreme Court Prediction by Yours Truly:

As I suggested here, the Court has indeed agreed to hear the Solomon Amendment case. Now if only I could unmake all the past wrong predictions I've made . . . .

More on the "Constitution in Exile":

In a previous post on the purported (but non-existent) "Constitution in Exile movement," I suggested that liberals who use the phrase are likely trying to imply not simply that some elite legal libertarians would like to revive constitutional limitations on government power that were enforced before the New Deal, but also that these scholars were hostile to all constitutional law jurisprudence that developed since the New Deal. But I noted:

Unlike conservative originalists, 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 [update: Will Baude points out that Epstein has been critical of Roe and seems skeptical of Casey].

Now, Cass Sunstein writes:

Would the Constitution of 1787, or of 1920,* increase our liberty or diminish it? For now, let's just notice the real radicalism of any effort to go in that direction. In 1787 and in 1920, racial segregation by the federal and state governments was believed to be constitutional. In 1787 and 1920, sex discrimination by government was just fine. In 1787 and 1920, there was no general right of privacy. In 1920, free speech was understood quite narrowly. Congress would almost certainly have been forbidden to protect workers' right to strike. In 1920, minimum wage laws were unconstitutional.

But as co-blogger Randy points out in a response to Sunstein, there doesn't seem to be anyone out there, liberal, conservative, or libertarian, who thinks that the pre-New Deal Supreme Court had things completely right, or even almost right. Conservative originalists object to the entire line of Lochner cases, including Meyer, Adkins, and Gitlow (see below). Libertarians (and many conservatives) think the Court had too narrow an interpretation of freedom of speech, and tunnel vision on issues of race.

But perhaps Judge Doug Ginsburg, originator of the "Constitution in Exile" phrase, is an exception, and he, and perhaps a secret group of acolytes, want to restore constitutional law to its state in 1930? Sunstein writes:

For Judge Ginsburg, and for some others, the court had the Constitution right in 1930. Judge Ginsburg also believes that the Constitution in Exile forbids Congress from "delegating" its authority to administrative agencies, such as the Environmental Protection Agency, by giving them broad discretion. Judge Ginsburg believes that since 1930, the Supreme Court has "blinked away" individual rights, above all the right to private property—and created rights of its own choosing, like the right to choose abortion.

But here is the sum total of what Judge Ginsburg has to say about the "Constitution in Exile":

So for 60 years the nondelegation doctrine has existed only as part of the Constitution-in-exile, along with the doctrines of enumerated powers, unconstitutional conditions, and substantive due process, and their textual cousins, the Necessary and Proper, Contracts, Takings, and Commerce Clauses. The memory of these ancient exiles, banished for standing in opposition to unlimited government, is kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty-even if perhaps not in their own lifetimes.

I find it difficult to tease out of this paragraph--much less out of Ginsburg's subsequent repudiation of the nondelegation doctine in the same piece--what Sunstein does.

*Sunstein uses 1920 advisedly, because by 1930--still pre-New Deal days, let's keep in mind--the Court had dealt a blow to sex discrimination in Adkins v. Children's Hospital (later reversed by a New Deal Court decision), and Meyer v. Nebraska in 1923 had recognized broad liberty rights under the Due Process Clause, likely including a version of the right to privacy, but New Deal decisions had cabined such rights dramatically until Griswold v. Connecticut in 1965. So, if anything, in at least some ways the pre-New Deal Court was far more agreeable to Sunstein on "liberty" issues than was the New Deal Court. (And the Court's broader free speech jurisprudence began with Gitlow in 1925.)

Supreme Court to Review Solomon Amendment Case: The Supreme Court has granted certiorari to review the Third Circuit's decision striking down the Solomon Amendment. The decision to take the case isn't surprising (see my prediction after reading the cert petition here). Gazing into my crystal ball, I predict that the Court will reverse. I don't think it will be close, either: maybe 9-0, with a concurrence or two. But of course these things are tough to predict. (To go further out on a limb, I also predict that a new Chief Justice will be presiding by the time the case is argued next fall and that the new Chief will assign the majority opinion to him/herself.)
Constitution-in-Exile Debate: Over at Legal Affairs, the Debate Club will be featuring a debate this week between Cass Sunstein and co-blogger Randy Barnett about the alleged Constitution-in-Exile movement. Only Cass has written so far, and his initial post strikes me as, well, odd. His post is very vague, but if I'm not mistaken he is suggesting that many or most judicial conservatives believe in some kind of radical vision of the Constitution in Exile. The key question seems to be which radical vision different conservatives like: as best I can tell, Sunstein is suggesting that some like Ginsburgian strike-everything-down radical activism, while others like Scalian uphold-everything radical activism. Huh? Well, I guess we'll have to wait and see how the debate shakes out. Of course I'll be particularly interested to see what my co-blogger Randy has to say. (Hat tip: Howard)

  UPDATE: Randy posted his initial reply to Sunstein just I was posting. An excerpt:
  Let me begin this week-long exchange, Cass, with a denial. There is no "Constitution in Exile" movement, either literally or figuratively. As for literally, I and others had not even heard the expression, plucked from an obscure book review by Judge Douglas Ginsburg, until well after folks like you and Jeff Rosen had started using it to describe their intellectual opponents. And as author of the 2004 book, Restoring the Lost Constitution: The Presumption of Liberty, I would seem to be at the heart of whatever movement supposedly exists.
  For obscure reasons that we may perhaps glean from this week's debate, the phrase "Constitution in Exile" viscerally appeals to critics of scholars and judges who, like me, favor interpreting the Constitution as amended according to its original meaning. Maybe it makes these "originalists" sound kooky or marginal or radical—like Russian nobility with their shadow governments futilely planning their return to power from the irrelevant comfort of London tea rooms. Maybe this rhetorical move has something to do with undermining future nominees to the Supreme Court who may be originalists.
  Sounds like it will be an interesting week over at Debate Club.

Sunday, May 1, 2005

A Day of Remembrance of Victims of Communism:

That's how Catallarchy is marking May Day; much worth reading.

How the L.A. Times Omitted Key Data from a Reuters Account:

Patterico's Pontifications catches what strikes me as a very serious omission.

The L.A. Times ran an edited-down version of a Reuters story. The opening paragraphs were similar (though Patterico's commenters expressed some concern about a few wording changes, which I won't focus on here); I quote from the Reuters account:

The United States and Italy on Friday disagreed on the conclusions of a joint investigation into the killing of an Italian agent by U.S. troops in Iraq, further straining ties between the two allies.

U.S. soldiers killed Italian intelligence officer Nicola Calipari on March 4 when they opened fire on a car heading for Baghdad airport in which he was escorting Italian journalist Giuliana Sgrena, who had just been released by kidnappers.

U.S. officials said the soldiers followed their rules of engagement in firing on the car as it moved toward a checkpoint and should not be punished. Italy disputed this and left open the possibility of pursuing the matter in the courts.

So far, so good. But now here is the section of the story that discusses the specifics of the disagreement (emphasis mine):
Reuters originalL.A. Times edit
A U.S. Army official earlier this week said Italy was disputing two factual issues in the report: the car's speed as it approached the checkpoint and the nature of communications between the Italians and U.S. forces before the incident. A U.S. Army official said this week that Italy was disputing two issues in the report: the car's speed as it approached the checkpoint and the nature of communications between the Italians and American forces before the shooting.
The Army official said one of the "trip wires" in the incident was that "there was, in fact, poor communications between the Italians and the Americans." [Not reproduced in the L.A. Times]
Italy's government has said the Italians had been driving slowly, received no warning and had advised U.S. authorities of their mission to evacuate Sgrena from Iraq. Italy's government has said the Italians were driving slowly, received no warning, and advised U.S. authorities of their mission to evacuate Sgrena from Iraq.
The U.S. Army said the car was "speeding" toward the checkpoint, that U.S. soldiers tried to get it to stop by using hand and arm signals, flashing white lights and firing warning shots then shot into its engine block when it did not stop. The Army says the car was speeding toward the checkpoint and that U.S. soldiers tried to get it to stop by using hand and arm signals, flashing white lights and firing warning shots, and then shot into its engine block when it did not stop.
CBS news has reported that a U.S. satellite had filmed the shooting and that it had been established the car carrying Calipari was traveling at more than 60 mph per hour as it approached the U.S. checkpoint in Baghdad. [Not reproduced in the L.A. Times]
Iraqis often complain that U.S. troops are too quick to fire from checkpoints that are difficult to spot. [Not reproduced in the L.A. Times]

Now I realize that the L.A. Times probably had to cut the story down in some measure -- but was it really proper to cut the "CBS news has reported that a U.S. satellite had filmed the shooting and that it had been established the car carrying Calipari was traveling at more than 60 [miles] per hour as it approached the U.S. checkpoint in Baghdad" paragraph?

Without the paragraph, the matter sounds like a swearing contest -- the Italians say the Italians were driving slowly, the Americans say they were speeding (which is how the L.A. Times story reports). With the paragraph, though, it sounds like the Americans were indeed right about the car going fast, and the surviving Italian passenger, journalist Giulia Sgrena, who apparently said the car was going at around 30 mph, was wrong.

Perhaps the U.S. military may be faulted on other grounds; but if the CBS is right, then a big part of the factual conflict that the L.A. Times describes seems to be resolved in the U.S. military's favor. After describing the dispute, shouldn't the L.A. Times have given this critical piece of evidence related to the dispute? (Some of Patterico's commenters suggested that the Times might not have found the CBS account credible, but unless there's really strong evidence that it's false, it seems to me that the account has to be at least mentioned, even if the newspaper would then explain why that account may be worth discounting.)

Interestingly, even the Islamic Republic [of Iran] News Agency article on this notes the satellite claim, but then gives a counterargument: "According to Italian intelligence sources, this is not to be believed. No satellite could have filmed the event because there was too much cloud cover, they said." Al-Jazeera likewise notes the satellite claim, as Patterico pointed out. Shouldn't the L.A. Times have done as much?

Thanks to Patterico for uncovering this, and to InstaPundit for the pointer. If I'm mistaken on this, please do let me know. But if Patterico and I are right, then the L.A. Times seems to have seriously disserved its readers; and we're fortunate that a blogger, despite his lack of the vaunted "several filters" that the L.A. Times provides to assure, among other things, "accuracy" and "fairness" has uncovered this lapse.