Saturday, May 21, 2005

Professor Ratings:

Via Prawfsblog, I've discovered This site is probably no more reliable than student evaluations, but it's interesting nonetheless.

UPDATE: A perceptive reader observed that the study cited in the link for "student evaluations" was itself based on data collected from For those interested in independent assessments of student evaluations, I recommend this survey by Michael Huemer of the University of Colorado. See also here and here.

Another reader noted that most of the Volokh conspirators are not rated on Hmmmmm.

Judicial Obstruction -- Three Different Kinds:

Some defenders of the judicial filibuster suggest this is simple payback for Republican mistreatment of Clinton nominees from 1995-2000. Others argue Senate Democrats have no choice because other, more traditional means, of blocking nominees (e.g. blue slips) have been curtailed. Implicit in some of these arguments is the view that blocking a judge is blocking a judge, no matter how it is done. Matthew Yglesias, for instance, argues that “If we're talking about blocking judges, we should be talking about all the ways (blue slips, failure to schedule hearings, etc.) that nominees have been blocked from getting floor votes.”

While I agree with the principle that all nominees should get hearings and a floor vote within a reasonable period of time – and that it was wrong for both Republicans and Democrats to block action on Clinton, Bush, and Reagan nominees in years past – I am not convinced that all forms of delay are equivalent, or that principled opposition to one suggests principled opposition to them all. It seems to me that there are significant differences between the majority’s control of the Senate agenda, the traditional use of blue slips by home state Senators, and a minority filibuster, and that it is reasonable to oppose the obstruction or delay of nominees through some of these methods but not others.

Majority control of the Senate entails certain prerogatives. Among them are the control of committees and the Senate’s agenda. The party in control of the Senate decides what business to conduct and when to conduct it. As a general matter, it is not “obstruction” when the Senate majority refuses to take up issues supported by the President, as the Senate is entitled to have its own priorities. Thus, one should expect that a Senate majority will consider nominees it likes more rapidly than those it does not, and that nominees from a President of the same party will be confirmed more rapidly than those of a President of the opposition. Again, this sort of agenda control is the prerogative of the party in control.

I believe the Senate majority should make a reasonable effort to consider the President’s nominees to the judicial or executive branch without undue delay, but the majority must enjoy some leeway here as it is the majority. The Senate majority may ignore the President’s legislative initiatives because it has other legislative priorities. That is the majority’s prerogative. Yet only the President can nominate. Therefore if the Senate delays positions necessarily remain unfilled, potentially impeding the operation of the other coordinate branches. So while its traditional for Senate majorities to treat their own party’s nominees with greater dispatch, I do not think they should be obstructionist. If a nominee is truly bad, the Senate majority should hold a vote and defeat him, not bottle up the nomination in committee while a seat remains unfilled.

The one way Senators of a minority party blocked undesirable judicial nominees in the past was through the blue slip, yet this was limited to home state Senators. As practiced for decades, the policy worked like this. When the President nominated someone, a blue slip would be sent to the Senators from the state in which the nominee was to sit. The Senator would return the blue slip with an indication whether he or she supported or opposed the nominee. Traditionally, if the Senator returned a negative blue slip, or refused to return the blue slip at all, the nominee would not be confirmed. The blue slip thus gave home state Senators of either party an effective veto of judicial nominees that would sit in their states, and encouraged Presidents to consider the views of home state Senators when picking judicial nominees. While there is some dispute as to how consistently the blue slip rule was enforced in the past, there is no question that Republicans tightened the rule under President Clinton, and have effectively eliminated it under President Bush.

The blue slip is incredibly undemocratic. It allows a single Senator to block a judicial nominee. The justification for it is that a home state Senator has a disproportionate interest in judicial nominees that will sit in his or her state. In the case of district court nominees, this interest is quite large. With circuit court nominees, the home state interest is somewhat less, but still substantial. The blue slip is a traditional recognition that Senators are representatives of their states, as such, and that they should have some say about the administration of justice in the states they represent. I don’t much like the blue slip, particularly for circuit court nominees, but it is a Senate tradition, some would say “Senatorial courtesy,” observed more often than not for many decades. As such, it has its defenders.

The filibuster is the newest means deployed to block judicial nominees, and effectively imposes a supermajority requirement for judicial confirmation. Prior to the election of President Bush, it had never been used by a Senate minority to prevent confirmation of a judicial nominee enjoying majority support. The one nominee ever filibustered before, Justice Abe Fortas, was opposed by Senators from both parties, lacked majority support, and eventually resigned from the bench under an ethical cloud. It is most certainly not a precedent for the filibusters we have seen for the past few years. Given its lack of any historical pedigree, I find it hard to justify the filibuster on anything but consequentialist grounds. Its use is not simple payback, insofar as it was not used before, and instead represents an escalation in the fight over judicial confirmations. Some believe it is warranted because judges have life tenure, but this was not the constitutional design. Judges have always been confirmed by a simple majority, and I see no reason to change. Indeed, I find it hard to view the current filibuster as anything more than sour grapes.

To recap, I believe all judicial nominees of whichever party should be considered within a reasonable period of time from their nomination – a principle both parties have violated time and again over the past twenty years. Senate majorities and home state Senators have blocked or delayed disfavored nominees for some time, though minority filibusters have not been used. I believe one could support the Senate majority’s agenda control or even blue slips without defending the filibuster, as they are not all the same. I, for one, oppose them all.

UPDATE: This post was not intended as an attack on or defense of either party. As I have written before, I think both parties have engaged in unjustified obstruction of the other’s nominees. As I detailed in my posts on the history of the confirmation fights, here and here, Senate Democrats began blocking Republican nominees in the mid-1980s. Senate Republicans responded with a greater level of obstruction once they retook the Senate in 1995, and Democrats have upped the ante since.

Kevin Drum thinks I should have paid greater attention to the Republicans’ rule changes, particularly with regard to blue slips. I acknowledged the changes above, and would also note that the blue slip rule changes have not been as hard and fast as Drum might suggest. For instance, while Senator Hatch said it would require opposition from both home-state Senators to block one of Bush’s appellate nominees, Senator Edwards was still able to block any action on Terrence Boyle’s nomination all by his lonesome. The Senate Judiciary Committee only began to consider Boyle once Edwards had left the Senate. I would also add that it’s not entirely clear how Senator Specter is approaching blue slips for appellate nominees now. Again, I do not like the use of blue slips by either party. Nonetheless, I recognize that they represent a longstanding “Senatorial courtesy” of respecting the particular interests of home state Senators, and thus believe that they can serve a different purpose than other means of obstruction.

To reiterate my position in case I have not been clear: I think all of this obstruction is wrong; I would like to have seen all nominees of each party receive up-or-down votes; I am not particularly fond of the “nuclear option”; and I would welcome a deal to ensure prompt consideration of all nominees to take effect after the next presidential election.

In the end, I think Senator Pat Leahy (D-VT) had it right in 1998:

I have had judicial nominations by both Democrat and Republican Presidents that I intended to oppose. But I fought like mad to make sure they at least got a chance to be on the floor for a vote.

I have stated over and over again on this floor that I would refuse to put an anonymous hold on any judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty.

I wish more Senators of both parties had followed this example then, and I wish more Senators would follow it now.

Related Posts (on one page):

  1. Kmiec on the Deal:
  2. Judicial Obstruction -- Three Different Kinds:

Friday, May 20, 2005

Crime-Facilitating Speech, Abridged:

The shortened version of my Crime-Facilitating Speech article (57 Stanford Law Review 1095 (2005)) -- less than half the pages of the original -- is now up.

A Different Kind of Law Review Competition: Over at PrawfsBlawg, Kaimi Wenger and several commenters (including me) are discussing the different strategies top journals use to try to win the competition for the best law review articles. Some journals give authors very tight deadlines to try to force authors to accept; others don't. The different practices among different journals raise lots of interesting normative and tactical questions.

  What we really need is for an enterprising person to conduct a survey of the top 50 journals to find out their typical practices. How long does an author typically have to decide on an offer? Are extensions granted? How long does an author have to to decide on an offer granted following expedited review? These things can vary year-to-year, but it would be particularly helpful for less-experienced authors to have some idea of current practices. If anyone wants to do this, let me know — I would be happy to post the results here at the VC or link to wherever they appear.

  UPDATE: I am reminded that Kaimi has a paper in the works on related topics that has some data collected: you can see early data on expedited review practices at The Conglomerate.
Can the FBI Legally Conduct Warrantless Home Searches?: Here's a puzzle for any Fourth Amendment buffs, legal historians, or FBI agents out there. I was leafing through my federal criminal code book not long ago — what, are you saying you don't do that in your free time? — and I came across the following criminal statute:
18 U.S.C. 2236 Searches without warrant
Whoever, being an officer, agent, or employee of the United States or any department or agency thereof, engaged in the enforcement of any law of the United States, searches any private dwelling used and occupied as such dwelling without a warrant directing such search . . . shall be fined under this title for a first offense; and, for a subsequent offense, shall be fined under this title or imprisoned not more than one year, or both.
This section shall not apply to any person . . . making a search at the request or invitation or with the consent of the occupant of the premises.
  Hmm, that's odd, isn't it? The statute seems to be saying that federal law enforcement officials can only conduct warrantless home searches with an occupant's consent. They can't conduct home searches pursuant to other standard exceptions to the warrant requirement, such as exigent circumstances. I'm wondering, can this be right?

  My very quick research suggests that this provision was passed in 1921, when the Fourth Amendment was in its infancy and before the modern exceptions to the warrant requirement (such as exigent circumstances) were recognized. The original text was part of a bill that was designed as a supplement to the National Prohibition Act, and was designed to limit the then-expanding powers of federal law enforcement agents. At that time, the law stated:
[A]ny officer, agent, or employee of the United States engaged in the enforcement of this act, or the National Prohibition Act, or any other law of the United States, who shall search any private dwelling as defined in the National Prohibition Act, and occupied as such dwelling, without a warrant directing such search, or who while so engaged shall without a search warrant maliciously and without reasonable cause search any other building or property, shall be guilty of a misdemeanor.
  Can anyone shed light on this statute? Are FBI and other federal law enforcement agents taught to follow it? Or has it been forgotten? There is no suppression remedy if it is violated, so it's not a provision that a defendant can invoke if the feds to break this law in the course of searching his house. But it remains on the books 84 years after it was passed, and I'm wondering what effect it has today.

  I have enabled comments.
As Promised, the Answer to the Acquired Cities Problem:

Many times over the last two centuries, the United States has acquired land. A lot of the land was sparsely inhabited, but some contained cities. Name the city that was the most populous at the time of its acquisition.

(If the city became part of a Territory when it was acquired, and then part of a State, I'm counting the population at the time it became part of a Territory. Let's include for purposes of the question the land the U.S. "acquired" at the time it was created. And let's exclude land — such as Germany or Japan after World War II — that the U.S. merely ruled as a self-consciously temporary occupation. People who like to bring legal disputes even into geography problems should note that I'm assuming, together with Lincoln, that the seceding South never actually became foreign land, and thus wasn't reacquired in 1865.)

Here I don't have the precise statistics, but I'm pretty sure I know the right answer. I thought that, rather than just giving it, I'd ask people to post their thoughts on the Comments; naturally, if you have authoritative sources handy — or, better yet, linkable — you should post those. Later on (probably tomorrow), I'll post the right answer, together with an admission if it turns out that I got the answer wrong myself — though as it happens, I've already posted my guess.

See this comments thread for supporting evidence, and for other guesses. Naturally, it's easy to fall into the error of looking only at cities that have stayed part of the U.S., and that have been seen as really "American."

Should the FBI Have Administrative Subpoena Authority?: Yesterday's papers reported that Senator Roberts of the Senate Intelligence Committee has a bill in the works that would give the FBI the administrative subpoena authority it has been seeking in terrorism cases. So you're wondering: what's administrative subpoena authority? And should the FBI have it? I wanted to offer a few thoughts to shed light on the first question and frame the second. (Warning: long and inconclusive post ahead.)

  First some background, taken largely from my recent testimony on the Patriot Act. At the most basic level, any modern legal regime that allows the government to investigate crime or terrorism must address a number of basic methods for acquiring information. In particular, the law must cover three basic types of authorities:
1) Authority to conduct physical searches to retrieve physical evidence or collect information.
2) Authority to compel third parties to produce physical evidence or disclose information.
3) Authority to conduct real-time monitoring over communications networks.
  In the case of criminal investigations, the legal regime that covers these authorities is well established. The first authority is governed by the traditional Fourth Amendment warrant requirement. The police must have a search warrant based on probable cause to enter a home or business unless a person with apparent or actual authority over the place consents, exigent circumstances exist, or another exception to the warrant requirement applies.

  The second authority is governed by the Fourth Amendment rules governing subpoenas. A subpoena is an order to compel: it requires the recipient to either report to testify or to disclose physical evifence at a particular time and place. Although many different types of subpoenas exist, the basic idea is that the subpoena authority is vested in some body, whether in the grand jury (which is really run by prosecutors, but at least in theory is just a groups of citizens) or a government agency. A subpoena can be issued under a wide range of circumstances: the information need only be relevant to the government’s investigation, and compliance with the subpoena cannot be overly burdensome to the subpoena recipient. No judge is consulted before the subpoena is issued; instead, the recipient of the subpoena can challenge it in court before complying.

  So much for the regime applicable in criminal cases. What about the law for intelligence investigations? In these cases, the government is not trying to deter and punish crime, but rather to collect intelligence ifnromation about threats to the Nation so it can defend itself. The law governing monitoring for intelligence purposes is somewhat different than the law governing evidence collection for criminal cases. The Fourth Amendment’s requirements are much less clear – and generally less strong – than in the routine criminal context. As a general matter, the few courts that have confronted how the Fourth Amendment applies to intelligence collection have held that the rules are somewhat similar to the rules for criminal investigations but also more flexible. When the Fourth Amendment applies, information and evidence collection must be reasonable in light of the countervailing demands and interest of intelligence collection. See United States v. United States District Court, 407 U.S. 297, 323-24 (1972); In re Sealed Case, 310 F.3d 717, 745-46 (Foreign Int. Surv. Ct. Rev. 2002). This legal framework appears to place Congress in the primary role of generating the law governing intelligence collection, with the Fourth Amendment serving as a backstop that reviews Congress’s approach to ensure that it is constitutionally

  Congress has responded to the challenge by passing the Foreign Intelligence Surveillance Act, also known as “FISA.” FISA attempts to create a statutory regime for intelligence monitoring that largely parallels analogous rules for gathering evidence in criminal cases. First, 18 U.S.C. §§ 1821-29 covers the authority to conduct physical searches, a parallel to the provision of the Federal Rules of Criminal Procedure that allows investigators to obtain a search warrant in criminal cases. Second, 18 U.S.C. §§ 1861-62 and 18 U.S.C. § 2709 covers authority to compel third-parties to disclose records and physical evidence, a parallel to the provision of the Federal Rules of Criminal Procedure that allows the issuance of subpoenas in criminal investigations.

  Okay, enough background. The debates over the FISA-related provisions of the Patriot Act — and the current debate on whether the FBI should have administrative subpoena authority — focus primarily on the second type of authority: powers to compel third parties to produce physical evidence or disclose information. For the most part, such powers to compel are used to obtain business records from third parties, like the phone company, banks, Internet service providers, and the like that have records relating to what the suspect has been up to recently. (It generally doesn't work to serve an order to compel on a suspect directly, as that tips off the suspect to the surveillance and raises Fifth Amendment privilege issues.) Specifically, critics object to the weak privacy regulations found in provisions such as Section 215 of the Patriot Act that address the government’s power to compel third parties to produce physical evidence or disclose information in intelligence cases. And they object to vesting the power to issue such orders in an agency like the FBI. The general concern is that these orders to compel give the government too much power, as they allow the government to issue an order without getting careful judicial review of the order beforehand.

  So what standard should apply? The difficult part about this question is finding the right frame of reference. If your frame of reference is the grand jury subpoena power in the criminal context, then giving the FBI administrative subpoena power probably doesn't seem so objectionable — it raises some concerns, but isn't entirely objectionable. The reason is that the grand jury subpoena power is already tremendously broad. The Supreme Court has held that a grand jury subpoena can be issued if the order to compel seeks information that may be relevant to a criminal investigation. See United States v. R. Enterprises, Inc., 498 U.S. 292 (1991). This authority “paints with a broad brush” by design, permitting subpoenas to be issued ordering third parties to disclose physical evidence and information “merely on suspicion that the law is being violated, or even just because . . . assurance [is sought] that it is not.” Id. at 297 (quoting United States v. Morton Salt Co., 338 U.S. 632, 642-643 (1950)). The Court has justified this low standard on the ground that orders to compel evidence from third parties are preliminary investigative tools designed to determine if more invasive forms of surveillance are necessary. "[T]he Government cannot be required to justify the issuance of a grand jury subpoena by presenting evidence sufficient to establish probable cause because the very purpose of requesting the information is to ascertain whether probable cause exists." See R. Enterprises, Inc., 498 U.S. at 297.

  The question is, should the government have an analogous power in intelligence investigations, and if so, what is exactly is the intelligence analogy to traditional criminal grand jury subpoena authority? On one hand, it makes some sense to give the government that power: if the government has long had the power to issue subpoenas in minor crime cases, it seems a bit strange that they don't have this same power in terrorism cases. In that sense, giving the FBI administrative subpoena power simply recognizes the historically contingent limitations on the grand jury power. At the same time, it's not clear that FBI administrative subpoena power would really be analogous to the grand jury power. If an FBI agent wants a subpoena, he still needs to go to a prosecutor; the proseuctor issues the subpoena in the name of the grand jury. This introduces one important check on the system, as the investigative agency cannot issue the grand jury subpoena itself. If you want the FBI to be tempered in its efforts by the check of another agency, administrative subpoena authority can seem troublesome.

  But once again, this depends on your frame of reference. More civil libertarian readers will object to the subpoena power, and argue that we should judge orders to compel evidence (category #2) based on the legal standards that traditionally govern orders to conduct direct searches (category #1). There are reasons why the law regulates category #2 less strongly than category #1 — Judge Friendly had the classic explanation in a case called United States v. Horowitz, and lawprof Bill Stuntz has doen a lot of great work on this area — but many will find these arguments unpersuasive and want orders to compel to follow the traditional warrant requirement. The subpoena power will seem like an end-run around the usual protections. At the same time, other readers may take the opposite frame of reference, and note that many agencies have had administrative subpoena power already, as detailed in this very good report from the Congressional Research Service. If lots of agencies have this power already, they'll reason, why not give it to the FBI for the most important of investigations?

  As this inconclusive post suggests, I'm not sure of where I come out on the bottom line. On one hand, I do think that the regime of intelligence investigation needs some kind of subpoena equivalent. All successful regimes of evidence collection rely on a mix of low-threshold investigatory steps and higher-threshold investigatory steps; the idea is that investigators should be able to do the less-invasive low-threshold investigatory steps to get evidence to be able to rule out or reaffirm the need to conduct more-invasive higher-threshold investigatory steps. I don't see why intelligence investigations are different on that score. At the same time, I'm not sure that giving the FBI administrative subpoena authority is the way to go. While a number of agencies have such power, they tend to have more limited scope. My initial sense is that there must be ways of increasing oversight beyond that of administrative subpoenas without interfering with their effectiveness as investigative tools. I hope Congress takes a hard look at them before giving the FBI administrative subpoena authority.

  Hat tip: Phil Carter, who also has thoughts on this.

Related Posts (on one page):

  1. The Case for and Against Administrative Subpoenas:
  2. Should the FBI Have Administrative Subpoena Authority?:
Hate Speech from Eleanor Holmes Norton:

Rick Santorum's foolish analogy about the German conquest of Paris, which Master Conspirator Volokh recently denounced, was an early favorite for the Most Ridiculous Statement by a Congressperson for the Week for May 15-22. However, Senator Santorum must now take a distant second place to D.C. Representative Eleanor Holmes Norton. Opposing a NRA-backed bill to restore Second Amendment rights to the citizens of the District of Columbia, Norton claimed that the intended purpose of the bill was to kill children. Stop the Bleating supplies the citations, and notes the difference between the claim that the bill would have the unintended consequence of causing innocent deaths (a type of legitimate argument which is made in the context of many different legislative debates on different issues) and Rep. Norton's vicious claim that the bill's sponsors are deliberately trying to cause the deaths of innocents. Eleanor Holmes Norton should apologize for her despicable slander.

UPDATE: The weblog No Quarters contacted Rep. Norton's press secretary on Friday, and received a response on Monday. The secretary told No Quarters that Rep. Norton believes is was "not the intention of the sponsors" to kill children. It appears that either: 1. The Washington Times made a mistake about a brief Q&A with Rep. Norton (as her office claims), or Rep. Norton made an incideniary remark to a reporter, and upon reflection Rep. Norton does not want to be associated with that remark. In any case, it is good to know that, even though some gun prohibition lobbyists assert that Second Amendment advocates do not value the lives of children, Representative Norton does not make such a mean-spirited assertion.

Many Thanks

to our readers who responded to my questions about women changing (or not changing) their last names when they marry -- the comments were fascinating and enlightening.

Yeah, That's Right, Just Like Hitler:

According to, here's what Sen. Rick Santorum said in a Senate speech:

And we shouldn't go mucking around in this institution and changing the way we've done things, particularly when it comes to the balance of powers between the three branches of government. And the independence of one of those branches of the judiciary. We must tread very carefully before we go radically changing the way we do things that has served this country well, and we have radically changed the way we do things here. Some are suggesting we're trying to change the law, we're trying to break the rules. Remarkable. Remarkable hubris. I mean, imagine, the rule has been in place for 214 years that this is the way we confirm judges. Broken by the other side two years ago, and the audacity of some members to stand up and say, how dare you break this rule. It's the equivalent of Adolf Hitler in 1942 "I'm in Paris. How dare you invade me. How dare you bomb my city? It's mine." This is no more the rule of the senate than it was the rule of the senate before not to filibuster. It was an understanding and agreement, and it has been abused. . . .

A CNN story confirms at least part of the quote: "The audacity of some members to stand up and say 'How dare you break this rule' . . . . It's the equivalent of Adolf Hitler in 1942 saying, 'I'm in Paris. How dare you invade me. How dare you bomb my city? It's mine.'"

The precise nature of the equivalence with Hitler, I regret to say, escapes me. And in the absence of such equivalence or at least a very close similarity, it seems to me to be both unfair and in bad taste to compare your adversaries to Hitler, even when the analogy — a rather weak analogy, as I mentioned — is simply to his hubris (or assertion of entitlement to supposedly ill-gotten gains) rather than to his atrocities.

Thanks to reader Victor Steinbok to the pointer, and to Mike Godwin for helping us understand all this.

UPDATE: Just to make clearer what I hoped was clear at the outset — of course I see the purported analogy, rather a strained one: It's that both groups insist on keeping what (in Santorum's view) they've acquired by fiat only recently, and that they're not entitled to. What eludes me is the supposed equivalence.

One can analogize anyone to Hitler. Some people wear mustaches. Others are charismatic political leaders. Others invade countries. Others disapprove of homosexuality. (I set aside here the debates about homosexuality among the Nazi elites; I refer here to the Nazi government's actions with regard to homosexuals.) But I take it that if a Democrat said about the invasion of Iraq — or for that matter of Afghanistan — "It's the equivalent of Adolf Hitler in 1939 saying 'I've got military power; I'll invade some countries,'" Santorum would rightly fault the speaker (as he apparently faulted Sen. Byrd for his Nazi analogies on the other side of the debate).

When you link someone to a person who is famous for mass murder, your argument will carry the rhetorical connection to mass murder (or at least to deadly megalomania) even if you purport to be drawing a much more limited analogy. (Compare the Judge Calabresi incident from last year.) I take it this must be the intention, since otherwise why analogize to Hitler, rather than to one of the many other people who have had more than their share of gall? And this, I think, is indeed unfair and in bad taste.

Thanks to reader Ken White for the Santorum/Byrd pointer.

FURTHER UPDATE: Sen. Santorum now says the statement was a "mistake." Indeed it was. (Thanks to Michelle Dulak Thomson for the pointer.)

Thursday, May 19, 2005

Ridiculous Comment of the Month:

I interrupt my blogging hiatus to bring you the following extreme example of inflated self-importance in the academy: President Bush is visiting Calvin College, an institution that has previously escaped my attention. Says history professor Dale Van Kley, a 28 year veteran of Calvin College now teaching at Ohio State, "I can see that the Bush administration is gaining capital from this appearance, but I don't see what it does for Calvin."

Which Part of "Non-" Don't You Understand?

I'm pleased to report that MSNBC mentioned Juan Non-Volokh's post on New York Times and filibusters; Ian (The Political Teen) has the video. They referred to the poster, though, as "Volokh" — which is one thing that he or she definitely is not.

Acquired Cities:

Many times over the last two centuries, the United States has acquired land. A lot of the land was sparsely inhabited, but some contained cities. Name the city that was the most populous at the time of its acquisition.

(If the city became part of a Territory when it was acquired, and then part of a State, I'm counting the population at the time it became part of a Territory. Let's include for purposes of the question the land the U.S. "acquired" at the time it was created. And let's exclude land — such as Germany or Japan after World War II — that the U.S. merely ruled as a self-consciously temporary occupation. People who like to bring legal disputes even into geography problems should note that I'm assuming, together with Lincoln, that the seceding South never actually became foreign land, and thus wasn't reacquired in 1865.)

Here I don't have the precise statistics, but I'm pretty sure I know the right answer. I thought that, rather than just giving it, I'd ask people to post their thoughts on the Comments; naturally, if you have authoritative sources handy — or, better yet, linkable — you should post those. Later on (probably tomorrow), I'll post the right answer, together with an admission if it turns out that I got the answer wrong myself -- though as it happens, I've already posted my guess.

More on Gender and the Harvard Law Review: Over at The Conglomerate, Christine Hurt is looking into why recent Volumes of the Harvard Law Review have mostly published the works of male authors. One obvious trend in the HLR's publication track, Christine notes, is the very strong preference for articles in constitutional law:
Given the roughly equal numbers of female to male assistant professors, I would suspect that law reviews receive an equal number of papers authored by men and women. So, does a ConLaw bias have gender effects? Or a bias toward well-known, established authors? These numbers roughly correlate with the percentage of female full professors.
  That raises an interesting question — do law reviews receive a roughly equal number of papers authored by men and women? Christine assumes so, but I am less sure. I remember my reaction when I first saw Brian Leiter's 2002 list of the most-cited law professors who entered teaching since 1992: to my surprise, every one of the top 20 most cited professors in that list is male. There are a number of possible explanations for that rather troubling (at least to me) result, but one might be a difference between the sheer number of submissions from men and women, either generally or in the smaller category of more prolific academics.

  VC readers, what are your thoughts? I would be particularly interested to hear from former or current articles editors who may remember (or remember the absence of) any such trend. As always, civil and respectful comments only.

Related Posts (on one page):

  1. More on Gender and the Harvard Law Review:
  2. Race, Gender, and the Harvard Law Review:
Florida's New Self-Defense Law:

Florida Governor Jeb Bush recently signed Senate Bill 436, which expands and clarifies Floridians’ self-defense rights against violent attackers. The bill was the creation of former NRA President Marion Hammer, who is also head of Unified Sportsmen of Florida, the state’s major pro-gun group. The NRA has announced that it plans to take SB 436 national, and urge other states to adopt similar measures.

Previous Florida programs created by Marion Hammer have done very well in other states. In 1988, her lobbying led Florida to enact “Shall Issue” concealed handgun licensing legislation—so that any law-abiding adult with a clean record and who passes a safety training class may obtain a permit to carry a handgun for lawful protection. Before 1988, only a handful of states had Shall Issue laws; now, only a little more than a dozen states do not have such laws.

Similarly, Hammer invented the “Eddie Eagle” gun safety program, which trains elementary school-age children not to touch a gun unless they are being supervised by a responsible adult. Eddie Eagle has been taught to millions of children, has won an award from the National Safety Council, and has been lauded by state legislature and city councils all over America.

So Florida-style self-defense rights may be coming to your state soon. Opponents of the law have made dire predictions about turning Florida into “the Wild West.” Similar predictions were made about the Shall Issue law, and those predictions did not come true. If you read the actual text of the Florida law, it becomes clear that the new law simply codifies common-sense principles of self-defense, including the principle that violent criminals, not innocent victims, should be the ones at risk during a violent crime.

Let’s start with the Preamble:

WHEREAS, the Legislature finds that it is proper for law-abiding people to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others, and
WHEREAS, the castle doctrine is a common-law doctrine of ancient origins which declares that a person's home is his or her castle, and
WHEREAS, Section 8 of Article I of the State Constitution guarantees the right of the people to bear arms in defense of themselves, and
WHEREAS, the persons residing in or visiting this state have a right to expect to remain unmolested within their homes or vehicles, and
WHEREAS, no person or victim of crime should be required to surrender his or her personal safety to a criminal, nor should a person or victim be required to needlessly retreat in the face of intrusion or attack, NOW, THEREFORE,
Be It Enacted by the Legislature of the State of Florida:

Few people could disagree with the statements in the Preamble, which simply affirm existing rights, including the rights of innocent people not to be attacked.

The operative part of the law begins by setting forth the standard for use of deadly force against an attack in one’s home or one’s automobile:

Section 1. Section 776.013, Florida Statutes, is created to read:
776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.--
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

In other words, a person may use deadly force against someone who unlawfully and forcefully enters a person’s home or vehicle. A victim may also use deadly force against a criminal who attempts to force a person out of her vehicle or home. Thus, if someone kicks down your front door in the middle of the night, or attempts to carjack you, you can use firearm or other deadly weapon to protect yourself. You do not have to worry that a prosecutor might second-guess your decision, and claim that you should have used lesser force against the violent intruder.

The bill makes several exceptions. The right to use deadly force does not apply against someone who has a right to be in the home or car (unless the person is the subject of domestic violence restraining order r a no-contact order). The right does not apply in child custody dispute. Of course the right does not apply if the person trying to enter the home or automobile is an identified police officer acting within the scope of his duties. Similarly, persons who are using the automobile or dwelling to commit a crime are not covered:

(2) The presumption set forth in subsection (1) does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

Prior Florida law about self-defense allowed defensive deadly force only when the victim believed that no lesser force would suffice. The principle remains in effect in all self-defense situations in Florida, except when the attack takes place in the home or automobile; the legislative judgment was that attacks in a home or vehicle are so outrageous, and so threatening to the social order, that victims should be guaranteed that they will be protected from having their defensive decisions second-guessed in court.

Outside of the home or vehicle, a victim may only use deadly force when it is reasonably believed to be necessary. (So the victim continues to face a risk of prosecutorial second-guessing). However, the new law specifies that victims are not legally obliged to retreat anywhere:

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

So if a gang tries to mug you while you are walking down a dark street, and you draw a gun a shoot one of the gangsters, a prosecutor cannot argue that you should have tried to run away. The prosecutor still can, however, argue that use of deadly force was unnecessary, because the victim could have used lesser force in the particular situation.

The next section of the law makes explicit one of the presumptions of the law—that violent invaders of the home or automobile are presumed to be intending to commit violent crimes after they enter.

(4) A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

The first section of Florida Act concludes by defining “dwelling” to include a porch which is attached to the dwelling, and to include temporary dwellings, such as camping tent:

(5) As used in this section, the term:
(a) "Dwelling" means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
(b) "Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
(c) "Vehicle" means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

The second and third sections of the bill amend existing statutes, to make explicit the absence of an obligation to retreat. (Italicized language is new; strike-through language has been repealed.):

Section 2. Section 776.012, Florida Statutes, is amended to read:
776.012 Use of force in defense of person.--A person is justified in using the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the such other's imminent use of unlawful force. However, a the person is justified in the use of deadly force and does not have a duty to retreat only if:
(a) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or.
(b) Under those circumstances permitted pursuant to s. 776.013.

Section 3. Section 776.031, Florida Statutes, is amended to read:
776.031 Use of force in defense of others.--A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the such other's trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.

The final section of the bill prohibits tort lawsuits against persons who act in conformity with the law. A criminal who sues a crime victim will be liable for the victim’s legal expenses. Police officers are not allowed to arrest a victim who defended herself, unless the officers have probable cause to believe the victim violated the laws:

Section 4. Section 776.032, Florida Statutes, is created to read:
776.032 Immunity from criminal prosecution and civil action for justifiable use of force.--
(1) A person who uses force as permitted in s.776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

Principled opponents of the Florida law can object to the bill because it allows deadly force against home invaders and carjackers, because crime victims are not required to retreat, or because criminals may not sue crime victims. In the United Kingdom, such objections would carry the day. Earlier this year, the Blair government defeated a move in Parliament to ease Britain’s severe restrictions on self-defense in the home, because, in the British government’s view, criminals also have a right to be protected against violence. Likewise, the British courts have allowed burglars to sue victims who used force against them.

But in the United States, social attitudes tend to favor the victim’s rights over those of the criminal. Most Americans would disagree with the idea that a mugging victim should be sent to prison because he didn’t try to flee, or that violent predators ought to be able to sue victims who shoot them.

As the Florida bill is introduced in other states, victims-rights opponents will probably be successful in getting newspapers and television to describe the proposal in very frightening terms. But when legislators and their aides read the actual text of the bill, many legislators will—like their Florida counterparts—conclude that bill is nothing more than some common-sense protections for crime victims.

Good Column From David Brooks Today: It begins:
Maybe it won't be so bad being cut off from the blogosphere. I look around the Web these days and find that Newsweek's retracted atrocity story has sent everybody into cloud-cuckoo-land. Every faction up and down the political spectrum has used the magazine's blunder as a chance to open fire on its favorite targets, turning this into a fevered hunting season for the straw men.
NR on Filibusters:

The NYT is not the only inconsistent publication. NR flipped too — and more quickly — and is called on it in house.

Can these positions be reconciled? Maybe. If I understand NR's editorial position, it is that the filibuster is worth preserving and eliminating the judicial filibuster could lead to the elimination of the legislative filibuster, so the nuclear option is imprudent. Now that the GOP is on the brink, however, NR believes they must follow through. In other words, this was the wrong fight to have, but it's a fight the Right cannot afford to lose.

UPDATE: NRO's Cornerites discuss this question here and here.

Law Reviews Online:

After praising the Virginia Law Review and the Duke Law Journal for posting their issues online -- and naively assuming that they were the first Top 20 journals to do that -- I got lots of e-mail from editors at other journals, saying they did the same: Columbia, NYU, Penn, and Yale, plus also American, Buffalo Criminal, Indiana, NYU J of Legislation & Public Policy, Wash U, and of course various tech law journals. News to me, and I expect news to many others.

Unfortunately, I couldn't find a comprehensive directory of all the journals that have online content; the Library of Congress list is underinclusive, the Jurist list is overinclusive, and the findlaw list isn't up-to-date. There's also no good search engine that I could find that just searches through law review articles, and does so comprehensively; google seems overinclusive, and seems underinclusive.

I suppose that's just a reminder that pay services which are in this business (WESTLAW, LEXIS, HeinOnline) do tend to be more comprehensive than amateur or free services, or ones that don't focus on law.

Service for Lloyd Cutler: The Washington Post covers the memorial service for this most remarkable man here. Hat tip: Susan Crawford, who was there and offers a few thoughts of her own.

Wednesday, May 18, 2005

Which Are Better -- Blogs or the Traditional Media?

I've always been puzzled by this question, at least when asked at this level of generality. Let me offer some reasons.

1. Would we ask — which are better, books or magazines? Some books are better than some magazines, under most metrics of quality (accuracy, reliability, and the like). Some magazines are better than some books. It's pointless to compare one medium as a whole to the other. Each is too heterogeneous, ranging from utter shlock to very valuable stuff.

2. Ah, but can't we compare the average book against the average magazine, or the average blog to the average newspaper or TV program? Well, we practically can't — there are too many for us to meaningfully choose an average. And why would we want to? No-one reads the average book; the average book is probably boring, out-of-date, badly written, and not very accurate.

As Sturgeon's Law (or at least one version of it) puts it, "90% of everything is crud." The great thing about books is that we don't have to read the average book; we can read some of the best books in the field (especially with the help of reviewing mechanisms that tell us what's likely to be the best), and ignore the crud. Likewise for newspapers, or for blogs.

3. How about comparing the popular blogs to the popular newspapers? Again we'd fail. There are lots of popular blogs out there, some good and some bad; likewise for newspapers (the Weekly World News is a newspaper). What's the point of comparing one such mixed group against another? And when people avoid this by just selecting a particular subset, it's very easy to select whatever subset helps fit one's pet theories.

4. But surely on some things nearly every leading newspaper is better than nearly any blog — for instance, on original investigative journalism that involves many months of investigation. Uh, OK. But few blogs that I know of are trying to compete with newspapers on such stories. Most of the political blogs tend to provide opinion and news analysis. On this score, some are better than some newspapers, and some are worse than some newspapers.

5. Still, wouldn't you rather have only newspapers and no blogs than only blogs than no newspapers? But fortunately, that's not the choice, just as we don't need to choose between a world with books but without magazines and a world with magazines but without books.

A world in which we have both blogs and traditional media is better than a world that has only one or the other: It provides more viewpoints on many issues; it provides more coverage of a broader range of subject matters; it provides more checks and balances, in the form of some speakers critiquing others' work and pointing out errors in it.

The question, it seems to me, should be how blogs and newspapers — or, better yet, particular kinds of blogs and newspapers — can become more accurate, useful, and readable. A part of the answer, in fact, would be more criticism, criticism that has increased with the development of blogs. But in any event, such an inquiry is much more helpful than attempts to compare things that can't be compared or aren't worth comparing.

NYT on Filibusters -- Continued:

Stone Court thinks there is no inconsistency in the two NYT editorials I cite below. Certainly, one could oppose the filibuster on principle, but still object to changing the filibuster rule by a simple majority vote, but this is not the Times' position.

As the excerpts below should illustrate -- and the full text of the editorials makes clear -- the gray lady has indeed changed her editorial position on the merit of filibusters. In 1995, filibusters were "negative feats of endurance" and "the tool of the sore loser." Today, filibusters are "part of the Senate's time-honored deliberative role and of its protection of minority rights" and "a necessary weapon." So while one could be both anti-filibuster and anti-nuclear option, that is not the NYT's editorial position.

In a related vein, one reader wonders why the current NYT editorial board should be bound in perpetuity to prior editorial positions -- after all, it's not the St. Louis Post-Dispatch. Fair enough, the Times can change its mind. But we're not talking about some long ago position -- this was 1995. Moreover, insofar as the NYT seeks to be a voice of principle, rather than partisan political interest, I think it is reasonable to expect a reasonable amount of consistency and frank acknowledgement when its views change.

National Anthem Law:

Here's what the Michigan Penal Code says about the National Anthem:

Sec. 542. . . . The national hymn or anthem, “The Star Spangled Banner”, shall not be played, sung or otherwise rendered in this state in any public place nor at any public entertainment, nor in any theatre, motion picture hall, restaurant or cafe, except as an entire and separate composition or number and without embellishments of national or other melodies; nor shall “The Star Spangled Banner” or any part thereof or selection from the same, be played as a part or selection of a medley of any kind; nor shall “The Star Spangled Banner” be played at or in any of the places mentioned herein for dancing or as an exit march.

Sec. 541. . . .

No [operators] . . . of any theatre, motion picture hall, restaurant, cafe or other places in this state where the public gathers, shall permit or allow anyone who plays, sings or performs therein to play, sing or otherwise render “The Star Spangled Banner” in violation of the provisions of this chapter.

Sec. 543. . . . Any person violating any of the provisions of this chapter shall be guilty of a misdemeanor.

Fortunately, it's pretty clear that the First Amendment bars Michigan from enforcing this. It's also pretty clear that musical law makes the ban on playing "The Star Spangled Banner" for dancing quite unnecessary.

And, of course, if the requirement that it be played as "an entire . . . composition" means that all the stanzas need to be sung, not just the first, then I'll bet that most ballparks are in violation.

More on Women and Last Names:

Many thanks to the many readers who responded to my query about why women who marry still change their last names. Note also that MetaFilter had a thread about this.

Now the obvious follow-up: If you're a woman who married and didn't change your last name, why did you do that (not why you got married, but why you didn't change), and how well do you think that worked out? Please post comments only if you are a woman, and you did not change your name when you married.

Related Posts (on one page):

  1. Many Thanks
  2. More on Women and Last Names:
  3. Women and Last Names:
Vaporware De-Vaporized:

My Academic Legal Writing book promised pointers to (1) instructions on how to electronically submit to law reviews, plus pointers to the law reviews' address, (2) online bluebooking exercises, and (3) listings of legal writing competitions; but I regret to say that I kept procrastinating actually putting those pages up. Well, a message from a reader finally prodded me into doing this -- those pages are now up. Use them in good health.

Chess Tactics:

I've long enjoyed chess — my dad taught me when I was four or five, I think, since that's of course the duty of Russian Jewish dads. I've never been great at it, and I haven't had much time to play recently, but I really like the game.

In any event, my friend Ward Farnsworth — a lawprof at Boston University — just put together a great online guide to chess tactics should be an excellent resource for anyone who is learning to play the game. (The site is called "Predator at the Chessboard," which is especially amusing if you know Ward, who is among the least predatory-seeming people I know; maybe chess makes his alter ego come out.) Check it out.

Avian flu update: human-to-human transmission

Some of you may know that I have my hand in a new blog on Avian Flu. The purposes of the blog is to provide a clearinghouse for information on avian flu and its public policy implications. The very latest news concerns a forthcoming WHO report that human-to-human transmission may well be occurring in Vietnam, here is that story. This, of course, is very worrying news.

Copyright and the Constitution:

People interested in this subject -- especially as it applies to intellectual property laws that go beyond the supposedly limited-times framework of copyright law -- should read Bill Patry's take on this (read that post and also the following one). Bill is one of the leading copyright experts in the country, and a former draftsman of copyright legislation, when he worked on Capitol Hill.


People still often say how they read something or do something "religiously," presumably to mean "without fail" or "with dedication" -- for instance, "I read your blog religiously," or "I'll administer these medicines religiously" (to take two real examples I've run across recently). But shouldn't it, for most people, mean "reluctantly, twice a year"?

Lots of Good Stuff up right now over at PrawfsBlawg.
Stevens, Originalism, and the Wine Opinion: I have chosen to remain rationally ignorant about the 21st Amendment — while it's one Amendment I am firmly behind, I can't say I know anything about the details — but I am not sure I share co-blogger Todd's reaction, also shared by Stephen Bainbridge, to Justice Stevens' dissenting opinion in the wine cases. Persuasiveness aside, the Stevens dissent strikes me as relatively standard originalist fare. The opinion attempts to contrast the original understanding of the 21st Amendment with the policy views of the present day, and argues that the policy views of the present day should not trump the original understanding of the 21st Amendment.

  Granted, the idea that Justice Stevens would suddenly embrace originalism is worth a chuckle. He is a rather late convert to the faith, and I suspect won't be found in church next Sunday. But the structure of his argument seems common enough. Consider his view that we should pay special deference to the views of those who were around at the time the 21st Amendment was passed. This seems similar to the view the Supreme Court expressed in Ogden v. Saunders, 25 U.S. 213 (1827), that there is a "presumption, that the cotemporaries of the constitution have claims to our deference on the question of right, because they had the best opportunities of informing themselves of the understanding of the framers of the constitution, and of the sense put upon it by the people when it was adopted by them." More recently, this approach has appeared in a number of recent opinions that feature originalist modes of interpretation, among them Alden v. Maine, 527 U.S. 706 (1999), in which Justice Kennedy examines the views shared by "[t]he generation that designed and adopted our federal system" for evidence of the "original understanding of the States' constitutional immunity from suit" that can shed light on the meaning of the Eleventh Amendment. The basic idea seems to be that the views of those around at the time a constitutional provision was adopted can provide some insight into the original understanding of constitutional text.

  Of course, none of this means that Stevens was right or wrong, or that originalism is a good or bad tool for understanding the constitution. But it does leave me less persuaded that the Stevens opinion is somehow outside the mainstream of judicial craft.

Related Posts (on one page):

  1. Stevens, Originalism, and the Wine Opinion:
  2. Justice Abraham Simpson Stevens:
NYT on Filibusters -- Then and Now:

Today the NYT editorializes against elimination of the judicial filibuster. According to the Times' editorialists, the filibuster and other modes of obstruction are "all part of the Senate's time-honored deliberative role and of its protection of minority rights, which Republican leaders would now desecrate in overreaching from their majority perch."

In 1995, however, the NYT sang a different tune. In a January 1, 1995 editorial (posted on on NRO's Bench Memos here), the NYT hailed Senator Harkin's proposal to limit the filibuster.

For years Senate filibusters — when they weren't conjuring up romantic images of Jimmy Stewart as Mr. Smith, passing out from exhaustion on the Senate floor — consisted mainly of negative feats of endurance. . . .

Once a rarely used tactic reserved for issues on which senators held passionate convictions, the filibuster has become the tool of the sore loser, dooming any measure that cannot command the 60 required votes.

In 1995, the NYT endorsed a proposal for successively lower cloture-vote requirements to allow a determined majority to win the day, while still preserving the minority's right to prolong debate and voice its opposition. Senator Frist's 100-hours-of-debate proposal would produce the same effect, yet the NYT blasted this as a "No-Compromise Compromise" on May 3.

Senators of both parties have been inconsistent in their views of the filibuster. That's what one expects from politicians. Is it too much to expect greater consistency from the nation's one-time paper of record?

UPDATE: The LA Times, on the other hand, stands on principle and advocates eliminating the judicial filibuster even though it will allow the confirmation of judicial nominees it does not like.

Congratulations to Victoria Hughes:

Congratulations to Victoria Hughes, President of the Bill of Rights Institute, on being named the new President of the Philadelphia Society. I have been honored to work side-by-side Victoria in building the Bill of Rights Institute, and am delighted for both Victoria and the Philadelphia Society.

An interesting collection of materials on the Philadelphia Society, including audio conversations with conservative and libertarian leaders of the 1960s, can be found on its web site.

Marquette Gold/Warriors/Golden Eagles:

An update on Marquette's mascot controversy.

South of the Border:

Amusing story about the (in)famous Pedro's South of the Border, an iconic stop on I-95.

Space, Law, and Guns:

What could be better? Julian Ku (Opinio Juris) writes about it.

Blawgs and the Populist Touch: Lincoln Caplan, editor of Legal Affairs, has an essay on law-related blogs in the magazine's lastest issue. Caplan suggests that law-related blogs are unusual because they lack the populist touch:
  Most blawgers are law professors, lawyers, or law students and, reading what they post online, you realize that they're not the uncredentialed challenging credentialed journalists, but credentialed lawyers (or lawyers-in-the-making) endeavoring to take back their subject from journalists and talking heads. While much of their content is gossip, a lot is commentary geared toward legal experts and virtually impenetrable for anyone else. Rather than being a populist advance, blawgs are often outlets for rarefied material.
Caplan continues:
  You can herald blawgs as providing analysis, information, and opinion in a new form. You can dismiss some as a way for people with tenure and a lofty opinion of themselves to have their say in yet another forum. However you slot them, the impulse to blog often seems to be the opposite of the effect of blawgs. The key ones are efforts by lawyers and academics to be public voices, to matter outside the legal world, to connect. Yet while blawgs are blogs, they rarely have the populist touch that is supposed to make blogs blogs.
  I wonder, though, who ever said that blogs are supposed to have the populist touch? What makes blogs blogs, I think, is that they have the touch of their individual (or in some cases collective) authors. While credentialed journalists have to speak to "the general public," bloggers are free to speak to whatever segment of the Internet audience they want. Bloggers get to pick their audience, and each blog can be as broad, narrow, specialized or general as its author wants. The fact that lots of legal bloggers have chosen to address a pretty sophisticated and well-informed audience is part of what makes blawgs blogs.

  UPDATE: Ernest Miller offers additional thoughts here.

Tuesday, May 17, 2005

Amazing Tribute to Star Trek: By James Lilek. This how it begins, but it is NOT how it ends:
One of the good things about the End of Trek: I’ll never have to listen to the bitching of fans. The more I troll the message boards and forums and Usenet groups, the more I’m convinced that the entirety of Trek Fandom is made up of people devoted to proving the inadequacies of the thing they supposedly love. Oh, that episode was horrible. Worst season ever. That show wasn’t anything like the wonderful perfect original series – remember that show where the computer ran the entire planet? No, not the one where the planet looked like the backlot for an Old West movie. No, not the one where the planet was some sort of jungle with Caucasian Polynesians who shoveled fruit into the mouth of a big computer-god. No, not the one where the planet was actually an asteroid. Oh – wait, yeah, that one. No – wait, the one where the planet was full of Indians, and the computer saved them by pushing away an asteroid – a different one than the one where McCoy was dying and fell in love with the priestess, because it was turn to get some - and Kirk was like a big war brave chief or something. Miramanee! Man, he knocked some moccasins that one. Yes, the new Trek sucks, there’s nothing like that Nazi planet episode – well, except for the Nazi planet two-parter. (Which sucked!) There was nothing that had Q in it, like in Next Gen, when he would take them all back to Robin Hood times and it wasn’t even a holodeck because he used his Q powers. For that matter, where were the holodeck stories on “Enterprise”? Not one! Okay, in the last one, but you know what I mean. You want to talk Trek, you talk Next Generation, and that means Whoopi Goldberg in a cardboard hat and a warship with a daycare center.

Complaints and trekkier-than-thou nitpickery. Ye canna change the laws of fandom.
Justice Abraham Simpson Stevens:

One more point on the dissent of Justice Abraham Simpson Stevens in the wine case--his dissent is truly one of the more idiosyncratic opinions I recall reading.

Is that me and my colleagues at the FTC he has in mind in referring to those youngins engaged in this newfangled policy analysis?

Today many Americans, paricularly those members of the yonger generations who make policy decisions, regard alcohol as an ordinary article of commerce, subject to substantially the same market and legal controls as other consumer products.

Oh these kids today with their fancy wines and "rock and roll" music.... In my day we didn't have no "Merlot" or "Pinot Gris"--we drank Heilemann's and, by george, we liked it!

He goes on to add a canon of law with which I am not familiar:

The views of judges who lived through the debates that led to the ratification of those Amendments are entitled to special deference. Foremost among them was Justice Brandeis, whose understanding of a State's right to discriminate in its regulation of out-of-state alcohol could not have been clearer.

Is this a real canon of law? He cites no authority for this novel "respect your elders" canon of construction, so I am not sure what to make of it. Does it apply to statutes as well? If a judge lived through the enactment of the Clean Air Act, does that mean he is entitled to greater deference because he remembers Pittsburgh in the 1950s?

But there is another, more important reason, why Brandeis's recollections of the 21st Amendment are largely irrelevant. In the same opinion that Stevens points to, the Young's Market case, Brandeis also expresses the view that the 21st Amendment also made the 14th Amendment's Equal Protection Clause inapplicable to alcohol regulations. Stevens notes that many of the state laws enacted after the 21st Amendment were discriminatory--but they also violated the 1st Amendment, Due Process Clause, and other assorted provisions of the Constitution. So unless Stevens is willing to say that states can permit sale of alcohol only to whites and not to blacks, or to prohibit the sale of only sacramental or kosher wine, it is hard to see that this particular argument gets him very far.

A very peculiar opinion.

Related Posts (on one page):

  1. Stevens, Originalism, and the Wine Opinion:
  2. Justice Abraham Simpson Stevens:
Wine Case:

I don't really have much to add, except that the majority got it exactly right in this case in its analysis of the dormant Commerce Clause, 21st Amendment, and policy considerations. The reasoning seems virtually identical to the articles I have written on this, so I won't belabor it here.

As for Kennedy, I think the best explanation is that when push comes to shove, he decided this case (and perhaps others) on the basis of his own personal intuitions of what is right or wrong, or makes sense, and he plainly saw that these laws simply make no sense. I think the fact that he both opens and closes with a discussion of the FTC Report and stresses the complete lack of any empirical evidence submitted by the states suggests that in the end he simply cannot see that the Constitution would compel the preposterous result of permitting hundreds of in-state wineries to ship, but not out-of-state, especially with no evidence of anything but naked discrimination to support it. Not the most edifying constitutional theory, but I think that is what is animating his opinion. Bainbridge and Ribstein also offer realist takes on it.

As for O'Connor, Stevens, and Rehnquist--one should not be surprised by them. They have adhered to the same interpretation of the 21st Amendment, O'Connor even moreso than the others, for going on 20 years now, and have refused to change their minds.

Justice Stevens's "Abe Simpson" style of dissent is a new one though--who needs empirical evidence when you can just sit back and rely on personal reminiscences from your days as a child in Chicago. Of course, despite this, Stevens still missed the real point of the 21st Amendment and the demise of Prohibition--namely, that it was intended to withdraw the federal government from meddling in local regulation of alcohol, not to empower the states to engage in economic warfare against the products of other states.

Unlike others, I am not at all surprised by Scalia. He has long distinguished between the nondiscrimination prong of the dormant commerce clause versus the Pike balancing test. The former is clearly part of the structure and history of the Constitution. It is much less clear that the latter is part of the Constitution (except as a proxy for ferreting out discrimination). Scalia has long supported the former but not the latter.

Thomas seems much more conflicted about this. In Camps Newfound, he seems to support the nondiscrimination principle, rooting it in the Export-Import Clause. But he subsequently seems less sure. It is interesting that his opinion does not discuss the dormant commerce clause, but instead goes straight from the statutory grounds he would have used to decide the case (under the Webb-Kenyon Act), to the 21st Amendment, with little discussion of the dormant commerce clause.

This case also is important beyond wine. By dissing New York's "physical presence" argument, the Court thankfully reasserted the ancient principle that a law does not become nondiscriminatory against out-of-staters simply by permitting them an option to become in-staters. In so doing, the Court saved the entire fabric of e-commerce in the country.

Finally, the case is important in reasserting the need for states to come forward with actual evidence to support their discriminatory regulatory regimes. Hand-waving and posturing is not a substitute for evidence, and the evidence here plainly reinforced Kennedy's common sense as to the absurdity of these laws.

Race, Gender, and the Harvard Law Review: Christine Hurt offers some thoughts over at The Conglomerate.

  UPDATE: Don't miss this comment by former HLR Articles Editor Nate Oman explaining the articles selection process.

Related Posts (on one page):

  1. More on Gender and the Harvard Law Review:
  2. Race, Gender, and the Harvard Law Review:
Interesting Yale Law Journal Symposium

next year -- "The Most Dangerous Branch? Mayors, Governors, Presidents and the Rule of Law: A Symposium on Executive Power." Interested faculty should go to the Journal's Call for Papers.

Women and Last Names:

[I had posted this earlier, but there was a glitch that kept the comments from working; reposting it now.]

I've found that lots of women of my circle — generally professionals who, I think, would describe themselves feminists at least in the sense of believe that men and women should be fundamentally equal socially and professionally — change their last names when they marry.

That surprises me, because the symbolism strikes me as somewhat antifeminist; maybe it shouldn't, but it does. Perhaps this is because back in Russia, where I first noticed people's last names, my mother and my grandmother (who had helped raise me) had kept their maiden names, and I think so had many of my parents' friends. I distinctly remember my reaction when I met a couple my parents knew, and noticed that they had the same last name: They're not just husband and wife, I thought; they must be brother and sister. I hadn't learned yet about the incest taboo, and brother-sister marriages seemed more plausible to me than a person's changing her name.

But of course different people perceive symbols differently; and obviously many friends of mine don't take the view that I do. So let me ask a question, and seek comments, but only from women who have changed their names when they married: Why?

I think I know some possible answers, but I don't want to influence the responses, so I'll just seek comments from the readers. Again, please post comments only if you are a woman, and you changed your name when you married.

UPDATE: Tyler Cowen comments.

Related Posts (on one page):

  1. Many Thanks
  2. More on Women and Last Names:
  3. Women and Last Names:
L.A. Times on Yoo: The L.A. Times profiles Boalt lawprof John Yoo here.
Patriot Debates Forum and Book Release: On Wednesday, May 25, from 8 am to 11 am, the contributors of Patriot Debates are going to be having a debate on the Patriot Act at the Holeman Lounge of the National Press Club in Washington, DC. Panelists will include Viet Dinh, Patricia Wald, James Dempsey, Timothy Edgar, Gregory Jacob, Kate Martin, Andrew McCarthy, Joe Onek, Heather Mac Donald, Michael Woods, Peter Swire, and myself. The event will be moderated by Stewart Baker; it's free, but registration is required. Call 202-662-1035 or email hmcmahon at to register.

  The debate is also a book release; the essays posted online at have been assembled into a book by the ABA, and will now be on sale for those who really need a bound paper version. As the Patriot Debates website announces: "Patriot Debates — Now in 19th Century Format!"
Volokh Conspiracy Happy Hour Idea: Summer is almost here, and I was thinking it might be fun to have an official Volokh Conspiracy Happy Hour here in Washington, DC some time in the next month or so. Blogfather Eugene can't join us (being in Los Angeles and all that), but I think we can get a couple of Conspirators and perhaps even some special guests from other law blogs to attend.

  Here's the question: How many people would show up for a Volokh Conspiracy happy hour? I have no clue. To get a rough idea of how many people might show, I hope you'll indulge an effort to get a blogospheric head count. Here's how it'll work: If you would want to come to a VC happy hour and think you probably would be able to attend a happy hour in downtown DC sometime in June, please send an e-mail to orinkerr (at) Please include the rough number of people you would expect to come with in the subject line of the e-mail ("1" if it would probably be just you, "15" if think you're gonna bring the whole summer associate class, etc.) I realize that this is a really really imperfect way of getting a sense of how many people might show, and also that it's kind of a pain to send the e-mail, but my guess is that it'll at least give us a ballpark figure of whether it's worth having this event, and if so, what kind of venue we'll need. Thanks.
Harvard To Focus on Faculty Diversity: The New York Times reports:
  Lawrence H. Summers, the embattled president of Harvard University, announced yesterday that the university would spend at least $50 million over the next decade to recruit, support and promote women and members of underrepresented minority groups on its faculty.
  Dr. Summers said the money would be spent on a range of initiatives, including the creation of a new senior vice provost post to focus on diversity issues, improved recruitment, subsidies for salaries, mentoring of junior faculty members and extending the clock on tenure for professors who go on maternity or parental leave.
Women and Last Names:

I've found that lots of women of my circle — generally professionals who, I think, would describe themselves feminists at least in the sense of believe that men and women should be fundamentally equal socially and professionally — change their last names when they marry.

That surprises me, because the symbolism strikes me as somewhat antifeminist; maybe it shouldn't, but it does. Perhaps this is because back in Russia, where I first noticed people's last names, my mother and my grandmother (who had helped raise me) had kept their maiden names, and I think so had many of my parents' friends. I distinctly remember my reaction when I met a couple my parents knew, and noticed that they had the same last name: They're not just husband and wife, I thought; they must be brother and sister. I hadn't learned yet about the incest taboo, and brother-sister marriages seemed more plausible to me than a person's changing her name.

But of course different people perceive symbols differently; and obviously many friends of mine don't take the view that I do. So let me ask a question, and seek comments, but only from women who have changed their names when they married: Why?

I think I know some possible answers, but I don't want to influence the responses, so I'll just seek comments from the readers. Again, please post comments only if you are a woman, and you changed your name when you married.

[For comments, please see the reposted version.]

Negligent Sex:

(Warning: This post might be seen as needlessly salacious, except it's actually about a real case that poses a real and interesting legal question.)

Some excerpts from a Massachusetts appellate court just handed down yesterday:

The plaintiff and the defendant were in a long-term committed relationship. Early in the morning of September 24, 1994, they were engaged in consensual sexual intercourse. The plaintiff was lying on his back while the defendant was on top of him. The defendant's body was secured in this position by the interlocking of her legs and the plaintiff's legs. At some point, the defendant unilaterally decided to unlock her legs and place her feet on either side of the plaintiff's abdomen for the purpose of increasing her stimulation. When the defendant changed her position, she did not think about the possibility of injury to the plaintiff. Shortly after taking this new position, the defendant landed awkwardly on the plaintiff, thereby causing him to suffer a penile fracture.

Although this was generally a position the couple had used before without incident, the defendant did vary slightly the position previously used, without prior specific discussion and without the explicit prior consent of the plaintiff. It is this variation that the plaintiff claims caused his injury. . . . The plaintiff's injuries were serious and required emergency surgery. He has endured a painful and lengthy recovery. He has suffered from sexual dysfunction that neither medication nor counseling have been able to treat effectively. . . .

There are no comprehensive legal rules to regulate consensual sexual behavior, and there are no commonly accepted customs or values that determine parameters for the intensely private and widely diverse forms of such behavior. In the absence of a consensus of community values or customs defining normal consensual sexual conduct, a jury or judge cannot be expected to re[s]olve a claim that certain consensual sexual conduct is undertaken without reasonable care. . . . We conclude, therefore, that there was no legal duty of reasonable care owed by the defendant to the plaintiff during their consensual sexual conduct.

The court went on to say that reckless sexual conduct — involving "voluntary taking of risk" and "indifference to consequences" — might be actionable, but merely negligent (i.e., careless) conduct in which a defendant simply "did not think about possible injury to the plaintiff" is not.

Seems like the right decision to me. I sympathize with the poor guy (I almost said "poor schmuck," but I've resolved to make this post as free of double entendres as possible given the subject matter); I hear that penile fractures are really bad stuff. And recall that negligence is indeed the normal rule as to physical injuries — if you injure your lover while driving, walking, doing housework, or whatever else, you can be held liable if you were acting negligently.

Also, while I at first thought the litigation rather ungentlemanly (even if your sweetie screwed up made a mistake in the sack, it doesn't seem right to sue her for it), I realized that there's a good chance that the woman didn't object: If she has a personal liability policy as part of her homeowner's or renter's insurance (many people do), the insurance company would pay the claim, the man would give back her deductible, the woman would feel a little less bad, and the man would at least get some money as meager compensation. (Is that the new definition of "gentleman" — "He would never sue an uninsured woman who injured him during sex, and he would always pay back her deductible"?) Nor would this be insurance fraud; if the facts are as plaintiff alleges, then the injury was genuine, and the claim quite honest.

Still, the prospect of litigation involving experts on how reasonable people have sex (sexologists? prostitutes?), debates about how sexually expert we should expect the reasonable person to be (especially in the throes of passion), attempts to reconstruct exactly who moved how and why, and jury verdicts about how the Reasonable Sexual Partner would have had Reasonable Sex boggle the mind. And, hey, if we impose legal duties on people, shouldn't sex ed class teach students how to properly discharge their duties? So I'm with the judges on this one.

The "100 Hours" Proposal:

The NYT reports that last-minute talks to avert a "nuclear" showdown in the Senate over judicial nominees broke down. Commented Senate Minority Leader Harry Reid, "I have tried to compromise, and they want all or nothing, and I can't do that." This echoes Reid's earlier sentiment that Senate Majority Leader Bill Frist never offered much of a deal, but is that really so?

The deal Frist offered was a guaranteed minimum of 100 hours of debate before a vote on any contested appellate or Supreme Court nominee. At first blush, this seems like nothing at all. Who cares how long you talk if the end result -- confirmation -- is preordained. Yet I think this assessment overlooks an important point: 100 hours of floor debate is a substantial amount of time on the Senate calendar. If Frist held the Senate in session 24-7, it would still take over 4 days of debate to vote on a single nominee; 10 contested nominees would take over 40 days of the Senate doing absolutely nothing but debating nominees -- and this would almost certainly never happen. As Byron York pointed out, Frist's deal would almost certainly guarantee that some of Bush's nominees would not get confirmed (though the Democrats would not know which ones).

If this is the case, why did Reid reject the deal? I think the answer is the Supreme Court. While Frist's deal might prevent Republicans from confirming all of Bush's appellate nominees, it would enable the GOP to ensure the confirmation of any given single nominee. So, if President Bush were to make a Supreme Court appointment, his or her confirmation would be a sure thing so long as the nomination maintained GOP support.

While both sides frame the debate as one about current nominees, the offer and rejection of the "100-hour" deal confirms what many already knew: The judicial confirmation wars is all about Supreme Court nominations that are yet to come.

A Bit More on HIV and Insemination:

A reader points me to this article,which reports:

Currently, 15 women are known to have been infected with HIV via artificial insemination using sperm from anonymous donors . . . [including] six in the United States. All but one of these cases of insemination-related infection occurred before the availability of HIV antibody testing.

The article (which is the first item shown by a google search for "hiv insemination") also reported that "approximately 75,000 women are artificially inseminated annually in the United States." If this is so -- and of course we'd want to know whether others disagree with these statistics -- then perhaps HIV screening is enough, and there is no need to disqualify homosexual donors. It's certainly possible; in fact, it would be excellent.

But again, the Washington Post article said nothing about this. This is interesting, useful information that actually helps readers think through the matter, especially if coupled with some sense of what other scientists think about this. But instead of getting this, the Post readers got something that looks more like a press release.

New York Times To Start Charging for Full Access: Andrew Sullivan points out that the New York Times will soon require readers who do not receive home delivery of the Times to pay $50 a year to access its op-ed page and the work of a few key reporters. Sullivan wonders whether this will end up making the Times less relevant:
  By sectioning off their op-ed columnists and best writers, they are cutting them off from the life-blood of today's political debate: the free blogosphere. Inevitably, fewer people will link to them; fewer will read them; their influence will wane faster than it has already. The blog is already becoming a rival to the dated op-ed column format as a means of communicating opinion journalism. My bet is that the NYT's retrogressive move will only fasten the decline of op-ed columnists' influence.
  Maybe, but I would guess there's more to it. I think it's a matter of finding the tipping point when lots of readers will pay to get full on-line access to the Times. Blocking the op-ed page alone certainly won't do it; while the Times still does some fantastic original reporting, their op-ed page is so predictable you don't need to actually read it to know what's on it. Reading the Times op-ed page is kinda like eating at McDonald's: you may or may not like what they're serving, but you've seen it all many times before. Some people will pay $50 a year for that, but I suspect the number is a fairly small percentage of the Times' readership.

  On the other hand, there may be a point at which lots and lots of people would pay $50 a year for on-line access to the entire paper. My speculation is that the Times will start by blocking only the op-ed page plus a few reporters, and eventually expand the scope of material blocked from nonpaying users until they find the point (if there is one) where lots of users would agree to pay for access. It'll be interesting to see where that point is, if it exists at all.

  Of course, this is just my speculation. I have enabled comments. As always, civil and respectful comments only.

Monday, May 16, 2005

Justice Kennedy Announces Earth Is Flat: I suppose this speech offers one more reason Tom DeLay will want to impeach Justice Kennedy:
  . . . Referring to the title of a book by New York Times columnist Thomas Friedman about increasing globalization, Kennedy said "the world is now flat, and the U.S. is beginning to be involved in international law."
  Of course, it's possible that DeLay agrees the Earth is flat, but I'm pretty sure he won't like the international law bit. And then there's this:
  After his speech, Kennedy answered a reporter's questions about other political controversies. . . . .
  In a comment that won't endear him to DeLay and other conservatives, Kennedy suggested that criminal sentences in the United States are too long, noting that U.S. sentences are eight times longer than those in Western Europe. "We have to rethink the sentencing system," he said. "We have 180,000 prisoners in the California state system alone."
  Asked about a bill just passed by the House to impose tough mandatory minimum sentences for gang-related offenses, Kennedy said he "strongly opposes" mandatory minimums, saying they lead to overly harsh sentences.
  Notably, Justice Kennedy has made both of these points before.
Graduating Blawgers: The recent spurt of exam-grading posts from blogging law professors shouldn't overshadow a more important development in the blawgosphere: a number of law student bloggers have just taken their last law school exams, and either have or are about to graduate and become real lawyers (or at least real law school graduates — I suppose the bar exam covers the real lawyer bit).

  Hearty congratulations are in order to Amber Taylor, Chris Geidner, Jeremy Blachman, Nick Morgan, Raffi Melkonian, and the many other graduating law student bloggers. The world of law student blogs is an unusually interesting corner of the blogosphere, and you all have helped make it so. Thanks for blogging, and I hope you all keep it up (even if your departures create some new opportunities for others).
Todd Zywicki's Election:

Some words about it, from a guest columnist in The Dartmouth, "America's oldest college newspaper." Thanks to reader Joe Malchow for the pointer.

Current Relative Rates of HIV Infection:

A reader kindly passed along to me what seems to be the most recent, albeit geographically limited, data on the subject, from Texas Department of Health. The data seems to be 2003 data, based on then-living people in Texas with known HIV infections.

If you set aside IV drug users and hemophiliacs (I oversimplify slightly here) — groups that the FDA urges be excluded as donors, regardless of their sexual practices — and the unreported risk people, we have 7239 males that were apparently exposed through homosexual sex, and 920 through heterosexual sex. If we estimate that 4% of the male population is homosexual (the numbers that, to my knowledge, are most reliable), this means that the average male homosexual in Texas is nearly 200 times more likely to have HIV than the average male heterosexual; the rate for homosexuals is 7239/(.04*10,000,000) = 1.8%, while the rate for heterosexual is 920/(.96*10,000,000) = .0096%. (The male population of Texas is 10,000,000.) This is something of an oversimplification, and it's based on a limited sample. Still, I suspect that this is a decent back of the envelope calculation; if it's off by even a factor of 5, that's still at least a 40-fold higher risk.

HIV is a tragedy; I hope it gets cured as quickly as possible. But it's a mistake, I think, to deny that it's a tragedy that afflicts male homosexuals at not just a higher rate than male heterosexuals, but at a vastly higher rate.

Incidentally, some people asked why the FDA doesn't similarly exclude sperm donated by blacks, because they have a higher HIV infection rate. Analogies to race are sometimes helpful, but not always; but in any event, according to the Texas data, there were 5738 white males in Texas who had HIV, and 4820 African American males (I'm not sure whether they really mean African American in the sense of Americans of African descent, or whether they also include non-American blacks, but I suspect that for our purposes that doesn't matter much). Texas is about 11.5% black and 71% white, so the rate of HIV infections for black males in Texas is roughly 5 times greater than the rate for white males.

This omits all sorts of important factors, including the categorization of Hispanics and also the need to focus, once IV users and homosexuals are eliminated from the donor pool, on the relative rate of infection by race of non-IV-using heterosexuals, which may be different than the overall race-based infection rate. But even if we focus on the first-cut approximation, we find that being black, while a risk factor for HIV, is apparently a 30 times weaker risk factor than being homosexual.

Sperm Donations and Homosexuals:

I should stress again that my post this morning about the Washington Post article was not an attempt to explain who was right and who was wrong -- rather, it was a criticism of the article's failure to adequately explain both sides of the debate, and of its failure to summarize what the conventional scientific wisdom is on the subject.

For those who are interested in the substantive question, though, you can find what seem to be the controversial guidelines here (please let me know if I found the wrong document; I wish the Post online article had had a link to the right one). The guidelines suggest the elimination of a wide range of people who seem at risk for HIV (pp. 16-21), including male homosexuals, intravenous drug users, hemophiliacs, men who have patronized prostitutes (of any gender), and 16 other categories of people.

Interestingly, the guidelines do not include people who have had promiscuous heterosexual sex; I don't know whether the FDA didn't see this as a high enough risk factor for HIV transmission, or whether it had some other reason for this. Perhaps this is a reason to criticize the guidelines -- but if it is, then again it would have been nice if the Post article had discussed the issue.

You can also find the FDA's responses to comments -- again, I hope these are the right ones -- here. Here's what they say about the exclusion of homosexual donors:

Some comments disagreed with considering homosexual men to be “high risk donors” and disputed the scientific basis for excluding these men as donors. Many comments cited the efficacy of the blood test for HIV, with retesting after a 6-month quarantine, although one comment noted that HIV antibody testing is imperfect. Many comments disputed the public health benefits of the rule, although some applauded the agency for trying to craft safeguards to protect the public. . . .

In response to the comments suggesting that FDA should allow establishments to rely on HIV test results alone, or on quarantine and retesting, without screening for risk factors, FDA rejects that approach at this time. Although it is reasonable to expect that more sensitive nucleic acid amplification testing (NAT) will be available soon for reproductive tissue donors, even that testing may fail to detect early stage HIV and other infections, particularly because the level of viremia may be extremely low in the early stages of infection (Refs. 1, 2, and 3). Moreover, even the best test may fail to provide an accurate test result due to human error in running the test or in linking the test result to the correct donor. Accordingly, FDA believes that, based on the current state of testing and current knowledge about disease transmission, it is necessary to screen for risk factors as well as to test for diseases such as HIV. . . .

After the consultation, it was concluded that there is no new data that would warrant revising the 1994 guidelines. CDC and others also concluded that current data are not sufficient to allow the identification of lower-risk subsets of currently excluded population groups, and thus, to refine the exclusionary criteria. At the consultation, representatives of CDC encouraged the development of new data.

On December 14, 2001, we asked the Center for Biologics Evaluation and Research's (CBER) BPAC, whether there are existing data that identify subsets of men who have had sex with other men in which the incidence and prevalence rates for HIV, HBV, and HCV of the subsets are similar to the population at large. By a 10 to 0 vote, the committee advised that these data do not exist.

We have reviewed relevant legal authorities and disagree that these regulations discriminate or improperly abridge donor or recipient rights. We further note that, since FDA has tailored the rule's requirements to take into account an existing relationship between a donor and recipient (for example, FDA has not required quarantine and retesting for directed reproductive donors, permits the use of reproductive tissue from ineligible directed reproductive donors, and requires no testing for sexually intimate partners), the comments' remaining objections relate almost exclusively to anonymous donations of reproductive tissue. We will continue to examine the data on risk factors and, as new data are developed that justify changes to our guidance, we will make those changes in accordance with good guidance practice.

For more details, see the document. Again, I can't speak to whether the FDA got this right -- but wouldn't it have been good for the Washington Post article to explain a bit about the FDA's substantive defense of the guidelines (or, even if the FDA hadn't defended them, what those who defend the guidelines say)?


Just sent to my publisher the second edition of my First Amendment textbook, now titled "The First Amendment and Related Statutes." Quite a load off my mind: Making massive revisions to a 1050-page textbook — of which probably about 250 pages are original text of mine, and the remainder are fairly heavily edited cases — took a lot of time and effort, and quite a bit of worry, since everything needs to be very carefully checked and proofread. I still have many projects on my docket (including two small but time-consuming ones, on which my primary responsibility won't be done for about 18 years), but it's great to have this one finally done.

Naturally, if you're a teacher who is interested in adopting this textbook for your class — either a law school or a university class — please let me know, and I'd love to send you the proofs, and, as soon as it's printed, the published book and the teacher's edition. Note that the book's format, which includes a built-in outline, problems, and explicit discussions of policy arguments, strikes me as quite useful for undergraduate classes as well as for law classes.


Lawrence White (Division of Labour) spots this excerpt from an exchange between Justice Stevens (a very smart man, incidentally, who rarely makes mistakes like this) and our own Randy Barnett, in the oral arguments for Aschroft v. Raich, the medical marijuana Commerce Clause case:

MR. BARNETT: The only effect [allowing medical marijuana] could have on the price [of marijuana generally] would be a slight trivial reduction, if it has any effect at all, because it's going to withdraw users from the illicit drug market. And to the extent that they are now in the illicit drug market -- and we don't know whether they are or not . . . .

JUSTICE STEVENS: Well, that would reduce demand and increase price, it seems to me. It's the other way around.

MR. BARNETT: Well, it would reduce demand and reduce prices, I think. But -

JUSTICE STEVENS: If you reduce demand, you reduce prices? Are you sure?



JUSTICE STEVENS: Oh, you're right. You're right. Okay. Yeah. Yeah.

Wine Shipment / Commerce Clause Decision:

Stephen Bainbridge has a very good post on this.

Wine and Commerce Clause Litigation:

The Supreme Court has just handed down its opinion in the wine case.

SCOTUSblog has it.

My most recent article on wine regulation and the commerce clause has been posted on the website of the NYU Journal of Law & Liberty. It is available here. An updated version of the article should be available soon.

My earlier article on the Original Meaning of the 21st Amendment as published in the Green Bag is here.

My article on the policy considerations in the case from Regulation magazine is here (page down to the final two pages).

The FTC's Report on Possible Barriers to Interstate Commerce: Wine, which the Court discusses extensively at the outset of the opinion, is available here.

Sperm Banks and Gays:

The Washington Post ran this story, written by its health reporter, on May 6:

A new Food and Drug Administration regulation scheduled to go into effect this month calls on sperm banks to reject anonymous donations from men who have been sexually active with other men within five years — an effort to screen out potential carriers of the AIDS virus.

With a May 25 implementation day approaching, the long-debated regulation is being attacked as unscientific and bigoted by some gay groups that say the new rule stigmatizes gay men.

"This rule is based on bad science because the AIDS epidemic is an increasingly heterosexual epidemic," said Kevin Cathcart, executive director of Lambda Legal Defense and Education Fund, which has asked the FDA to reconsider.

"We also know that sperm banks can test for HIV very well now and so can screen out any infected donor," he said. "With that in place, why are gay men being rejected?" . . .

The story goes on — I don't want to quote the whole thing, because of copyright reasons (there's a possible argument that quoting the entire article would be fair use, because I'm criticizing it, but I'd rather err on the side of caution). But nothing in the rest of the article says anything about what the FDA's response to this criticism might be, or about what (if anything) seems to be the conventional wisdom from objective and reputable sources on who's right here.

The closest the story comes to that is by saying "When the rule was adopted, acting FDA Commissioner Lester M. Crawford said it was developed with broad input and 'in all cases, we carefully considered the comments we received in the proposed rule and made changes in the final rule when the science supported the change.'" But what exactly does the science say?

It is pretty obvious — though perhaps some readers might miss it — that "This rule is based on bad science because the AIDS epidemic is an increasingly heterosexual epidemic" is an unsound argument. The risk that any U.S. male homosexual is infected with HIV are over 10 times (likely considerably over 10 times) the risk that any U.S. male heterosexual is infected with HIV. (I'm extrapolating from the year 2000 new AIDS infection numbers listed here, with a generous margin of error; I realize that this isn't the same as current HIV numbers, but it's close enough to get a confirmation of conventional wisdom, which is correct here. If anyone has more precise data, please let me know.) Given this, screening out those who are disproportionately likely to be at risk -- of course, as well as trying to use other methods to screen out donors who don't fit within the demographically most-at-risk categories, but who may have HIV nonetheless -- may well be sensible. If there's a flaw with the FDA policy, it is not that AIDS is an increasingly heterosexual epidemic (if it is that) even though in the U.S. it is still a highly disproportionately male homosexual epidemic.

But what about the argument that "We also know that sperm banks can test for HIV very well now and so can screen out any infected donor" — "[w]ith that in place, why are gay men being rejected?"? Are HIV tests certain enough that the sperm banks can efficiently and completely reliable test sperm, for instance, by freezing the sperm, testing the donor six months after the donation — six month seemingly being the period between infection and [nearly?] certain detectability — and using the sperm only if the donor comes up clean? Or is there some significant possibility of error even then?

In either case, wouldn't that information be useful in an article by a health reporter, more useful than just giving an advocacy group's take on the matter (plus a general assurance of safety from the operator of a sperm bank that accepts sperm from gays), with no sense of what impartial scientists actually say, and no discussion of any possible counterarguments?

I should stress that I genuinely have no views on what the science is. For obvious reasons, I'd love it if sperm banks could 100% reliably test sperm for HIV. It may well be that Mr. Cathcart's arguments are completely right.

But it seems to me that readers would like to have more than his arguments and those of a sperm bank operator that obviously has a stake in the matter. There should be some science on this out there somewhere, I take it, and some scientists who can speak to it, no? If there's a conventional wisdom on the subject that comes from highly reliable scientific sources, let's hear it. If the conventional wisdom is that we don't know what the right answer is, let's hear that. In any event, let's at least hear the specific arguments from the other side.

I am not trying to make any claims here about media bias. My point is simply that the story just isn't very useful to a typical casual reader who's trying to get an objective sense of the matter. Not a grand journalistic felony, I realize -- but it's the sort of journalistic misdemeanor (or even infraction, if you prefer) that, when repeated as often as this one seems to be, makes for unhelpful newspapers and ill-informed readers.

As always, please let me know if I've missed something important here.

Sunday, May 15, 2005

When Students Replicate Errors on Their Exams:

I always find it interesting to see the same error repeated in multiple students’ exams. Sometimes this is a cause for dismay, as the fault is my own. Without fail, misstatements made in class are echoed back on students’ exams. Certain errors are also evidence that a given concept or idea was never communicated particularly well, either by me or the assigned materials, and students were left with mistaken conclusions. It’s one thing if some students just have difficulty grasping a particular idea – though I hope they all “get it” by exam time – quite another if what they grasp is simply wrong. Although it has not (yet) happened to me, repeated errors on exams can also be a sign of cheating, particularly in closed-book exams.

This year, once again, I found a mistake repeated in my students’ exams, but thankfully I am not to blame. This year’s repeated mistake concerned a portion of a note case that is not in the casebook and that we never discussed in class. Fair enough, as I hardly penalize students for reading and referencing material not contained in the casebook. (Indeed, I like to see students read the assigned cases in their entirety, though not too many do of their own accord).

The problem was not that several students cited a four-part test from the uncovered portion of the case. Rather, the problem was that the majority of them misstated the factors in precisely the same way. Oops.

Thankfully I don’t suspect cheating. Instead I am willing to bet that multiple students were referring to the same external source, such as a treatise or commercial outline, or (more likely given the mistake) an outline prepared by a student who had taken my class in a previous year when we did cover the material in question. Then in the crush of preparing for the exam – or in the exam itself (which is completely open-book) – each of the students in this group referred to this source rather than the own notes and repeated the mistake. Needless to say, this didn’t much help them on their exams. They would all have been better off to rely upon their own work, or at least to have confirmed that their source accurately reflected the assigned material.

UPDATE: Apparently I'm not the only one to have this sort of experience. One VC reader writes:

I was grading exams for a large Classical Mythology course when, to my dismay, a large number of students gave the same inaccurate name for the sidekick of Hercules (it should be Iolaus, as I'm sure you know.) I had the same reaction: Did I teach it wrong, or did they cheat? But fortunately there turned out to be a simple answer. All the students had gotten their information from the low-budget WB TV show, "Hercules," which apparently was not the gold standard for mythological accuracy.
Wherever my students got their four-part test, I'm sure it wasn't from the WB!

SECOND UPDATE: Several more readers e-mail to say that Iolaus was Hercules' sidekick on the syndicated TV show. Hmmm.

In Defense of Academic Freedom (Properly Understood):

Professor Richard De George explains what academic freedom is -- and is not -- in today's Washington Post "Outlook" section. He also notes academic freedom faces threats from both without and within the academy.

On proposals to create an "Academic Bill of Rights," De George has this to say:

the controversy over the proposed "academic bill of rights," like the Summers case and many others, serves to highlight the dangers to academic freedom from within the university itself. The bill of rights, which was conceived by conservative activist David Horowitz and his watchdog group Students for Academic Freedom, would require professors to present a greater diversity of views on unsettled issues. It is a reaction on the part of conservative students to what they feel is the dominance of liberal faculties at many universities, where the students say that claims made in the name of academic freedom implicitly permit professors to require that students hew to a certain political line in order to pass a course, or where potential faculty members have to hold a certain political ideology in order to be hired.

Where either is done in the name of academic freedom, it is certainly an abuse of that concept. A science class is not the appropriate forum for a discussion of politics, for instance, and no course should provide a teacher with a captive audience for Bush-bashing or any other political indoctrination. On the other hand, students have no "right" not to hear views with which they disagree. Part of their education arguably consists in having some of their opinions challenged.

On campuses that are primarily liberal, conservative faculty and students often feel pressure to keep quiet, not to write on or even raise certain subjects, and to stifle their dissenting opinions. On conservative campuses, liberals feel similar pressure. Such pressure is incompatible with the free flow of discussion and the free exchange of ideas that academic freedom requires and is supposed to promote. But no legislature should dictate what has to be taught in any course, even in the name of balance. The solution is to promote greater respect for the academic freedom of all, not to push legislation that would in fact undermine that freedom.

That sounds about right to me.

Michael Totten in Lebanon.--

Michael Totten has an interesting piece in LA Weekly on his travels in Lebanon and the effects of the Cedar Revolution on people's hearts and minds:

“The national-unity drive,” Claude said. “That’s why I came out tonight. We are getting close to the war. That’s why the city government is asking us all to come out and return to the nightlife. It pushes the war away.” He took a sip from his martini. “But I don’t believe in it. I want a federal system in Lebanon where Christians are not allowed to enter Muslim areas and Muslims cannot enter Christian areas.”

“That’s not going to happen,” I said.

“I know, I know,” he said. “It is not reality. It is my dream.”

He still waged his own personal war with Muslims in his head. But he was also at war with himself, precariously perched between an ethnic-nationalist fantasy and another, better hope for freedom and democracy for all of Lebanon — including Lebanon’s Muslims.

Are there 24,000 extra Iraq War deaths or 98,000?--

1. These Different Estimates Can Be Reconciled.

There is a dispute over how to reconcile the recent published estimate of 24,000 extra war-related deaths in Iraq (Iraq Living Conditions Survey 2004) with the previous Lancet study, which estimated about 98,000 extra deaths from the Iraq War.

Tim Lambert has argued that these numbers are really fairly close when you recognize that the 24,000 figure represents only war-related deaths, while the Lancet study involved extra deaths from all sources. He criticizes the reporting of the Times of London:

Unfortunately, the Times reports the ILCS results like this:

The 370-page report said that it was 95 per cent confident that the toll during the war and the first year of occupation was 24,000, but could have been between 18,000 and 29,000. About 12 per cent of those were under 18.

The figure is far lower than the 98,000 deaths estimated in The Lancet last October, which said that it had interviewed nearly 1,000 households. But it is far higher than other figures.

This makes a misleading comparison between the Lancet number for all excess deaths (which includes the increase in murder, accidents and disease) and the ILCS number for deaths directly related to the war (which just includes deaths caused by the coalition and the insurgents). It also misses that the time periods were different.

The authors of the ILCS report (page 55) seem to have been confused themselves on this point, which makes the resulting confusion of commentators and journalists fully understandable (tip for the quote to Tim Blair):

The ICLS data indicates 24,000 deaths, with a 95 per cent confidence interval from 18,000 to 29,000 deaths. The confidence level was estimated using a linearisation technique (using SPSS Complex Samples, version 12).

Another source (Roberts et al 2004) [Lancet] estimates the number to be 98,000, with a confidence interval of 8,000 to 194,000. The website “Iraq Body Count” estimates that between 14,619 and 16,804 deaths have occurred between the beginning of 2003 and 7 December 2004.

I think that Tim Lambert is basically right (and he should be commended for sorting this out). The number of violent deaths in the Lancet report is not that much higher than the number of war-related deaths in the more recent ILCS study, and the period is slightly longer in the Lancet study. The 98,000 figure covers deaths from all sources (including accidents and disease), while the new ILCS study's 24,000 estimate excludes deaths from non-War related sources of death, such as accidents or disease.

2. Further Thoughts on Counting Deaths in Iraq.

But one should note that the 24,000 estimate includes all war-related deaths and disappearances of household members in the 24 months before being surveyed (most ILCS surveys were done in April and May 2004, a small % were done in August 2004). Thus, the 24,000 figure covers both most of the year before the March 2003 War and the year after. Any deaths of those in the Iraqi military before the War or anyone who disappeared in the year before the War would have been included in this 24,000 figure, if the household members treated these as War-related (though I doubt that deleting these pre-War deaths would cause large reductions in the estimates).

There is also the problem with both of these studies that people may be more likely to remember more recent events than earlier ones, and may be more likely to consider some people as a member of the household, people who lived with them recently more than people who lived with them two years ago (household size averaged about 7.5-8 persons in the Lancet study).

For example, the Lancet study distinguishes between the 14.6 month period before the War and the 17.8 months after the War. I find it somewhat odd that heart attack and stroke deaths are up 64% in the later period, and accidental deaths are up more than 3-fold. And live births are up 33% in the later (War & Post-War) period, even though post-War pregnancies would not lead to live births until 9 months had passed, so the rate of having children would likely have to have jumped substantially more than 33% in the last half of the later period. Further, household size jumps from 7.5 in the earlier period to 8.0 in the later period.

None of these changes is impossible, and some of these differences might be expected to some extent. But taken together, they give me pause before concluding that people are reporting deaths and who is a household member with the same reliability for before the War as for the post-War insurgency period, which is fresher in their minds.

Actually, there are some fancy statistical techniques to explore whether undercounts are more of a problem in one period than another, so-called capture/recapture techniques. If the researchers independently took the same information from multiple sources (such as more than one person in the same household interviewed separately on different days, or a next-door neighbor asked about their neighbor's family and deaths, or a police or coroner’s list of deaths), the researchers could compare the various lists to see if they overlapped for the recent period more than for the earlier period. If they did, then the methodology would adjust the total death count more for undercounts in the earlier period than in the later period.

Personally, I wonder how much of the substantial differences between the earlier and later period (eg, number of births, household size, cardiac deaths, accidental deaths) are the result of differences in remembering events and household composition. But Tim Lambert is correct that the Lancet and ILCS studies tell roughly similar stories on violent death rates from the Iraq War itself and the post-War insurgency period.

One of the encouraging things about the blogosphere is that puzzles like the death estimate discrepancy can be sorted out.

Greenberg on Blogging: Sunday's New York Times has an interesting piece by David Greenberg on his experience guest-blogging over at Daniel Drezner's blog.