is just superb — and an excellent example of the value added by the Internet. Take several top scholars and legal thinkers on the subject; have them engage each other (and outside opinion) thoughtfully, in detail, and politely, reaching far deeper than the usual sloganeering yet remaining largely acceptable for educated laypeople; present it starting hours after the decision is handed down, for free, to all interested Internet-connected readers — show me a medium that can beat that.
Saturday, June 25, 2005
According to Gordon Smith at Conglomerate, another law professor relayed the following anecdote to a friend about to enter the legal teaching market:
at the preliminary screening level it's often the case that strong opposition from one member of the Appointments Committee is enough to knock you out. I know of a case where one extremely strong candidate didn't get a call-back at a lower-tier school because one member of the Appointments committee said that she simply couldn't even consider hiring someone who'd worked for Justice Thomas.I am aware of a virtually identical incident — I wonder if it is the same one? [Update: I've since confirmed that these anecdotes are from two different schools.]
Thankfully, many (most?) schools do not have influential faculty members who share this view. As a result, the legal academy is sprinkled with many former Thomas clerks, including (but not limited to) Nicole Garnett (Notre Dame), Jim Chen (Minnesota), John Yoo (Berkeley), Michael O'Neill (GMU), Stephen Smith (Virginia), John Eastman (Chapman), Gregory Maggs (George Washington), Sai Prakash (USD), and Allison Eid (Colorado). (Apologies to those I left off the list. I compiled this list quickly from memory.)
(Hat tip: Althouse)
UPDATE: A reader notes that the University of Georgia had a similar controversy when a determined minority on the faculty blocked the appointment of two former Supreme Court clerks on ideological grounds. The incident, and other controversies at Georgia, were covered here. [Note: In comments below, Peter Appell reports that Georgia made no offers the year of the aforementioned controversy, but subsequently made an offer to another Thomas clerk, David Stras, who now teaches at Minnesota.]
ANOTHER UPDATE: Tom Smith adds some thoughts here.
John Tierney's NYT column today questions popular notions that the old West was a wild and dangerous place. While settling the West was unquestionably tough, Tierney notes many scholars now believe there was more order and cooperation than many once thought. At the very least, the West was not as violent and tumultuous as portrayed in movies and on TV.
Tierney relies, in part, on The Not So Wild, Wild West by economists Terry Anderson and P.J. Hill. This book focuses on the development and evolution of institutions on the western frontier. Anderson and Hill have a particular interest in the evolution of property rights and cooperative institutions. Some of their prior work demonstrated how technological advances, such as the development of barbed wire, facilitated the expansion and enforcement of property rights on the western range. I would expect their new book to be equally informative and provocative, and well worth the read.
UPDATE: In a related vein, this paper by CWRU law professor Andrew Morriss argues that "Hayekian legal institutions" flourished on the Western frontier, until they were crowded out by more formal state institutions.
I will say this about Jack's post. It takes originalism seriously and attempts to evaluate it respectfully from within it own premises. A hint at my reaction: I titled the chapter on originalism in Restoring the Lost Constitution "An Originalism for Nonoriginalists" for a reason. The same could be said, by the way, for my theory of constitutional legitimacy: it's not just for libertarians.
Now comes a legal novel from a bright young up-and-coming law professor at Penn: Kermit Roosevelt. I met Kim last year at the NYU Constitutional Law Colloquium and was impressed. I would have been even more impressed had I known that a novel was forthcoming. The novel is In the Shadow of the Law. I have only just seen the ad for it, but it sounds like great summer reading.
From Booklist: If the first few pages of Roosevelt's debut call to mind John Grisham, don't be fooled. This isn't a plot-driven legal thriller of the sort Grisham writes. The protagonist is Law, with a capital L, and Roosevelt, who has both taught and practiced law, creates his story with full attention to his subject's multidimensional personality. Law is greedy, amoral, ruthless, and all-consuming; yet, in its own way, it is elegant, even beautiful, and fair, when practiced by lawyers with conscience. Law thoroughly overshadows the human characters: Wayne Harper, awaiting execution on Virginia's death row; the victims of an explosion in a Texas chemical factory; even a group of legal associates learning the ropes at Morgan Siler, a top D.C. law firm. "If you give yourself to the [law], it will give you something in return," one of the partners tells a puzzled associate. He's right, but the gift isn't always what's expected. Legal terms and concepts abound so this isn't breezy reading; thought-provoking is a much more accurate description. Stephanie Zvirin
Update: I decided to enable comments so other can recommend their favorite "Legal Novels."
Friday, June 24, 2005
"Something has gone seriously awry with this Court's interpretation of the Constitution."Had this quote been available at the time, I would have led with it in Restoring the Lost Constitution (which began: "Had judges done their job, this book would not need to be written.") One day, it may be added to such "greatest" lines as "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics."
To help that along, T-Shirts and mugs should now be forthcoming.
I am enabling comments for your favorite ONE SENTENCE lines from judicial opinions.
Update: IMHO The Kozinski quote posted in the comments by Will Baude is awesome. The quote from Justice Thomas remains my favorite, however, perhaps because it is of such general utility.
All Related Posts (on one page) | Some Related Posts:
BBC America has an on-line poll to vote for the greatest episodes of all-time of Monty Python's Flying Circus. Cast your vote here.
The winners will be run as "Viewers Choice Weekend" July 2-4.
Which reminds me, I once asked a British pal of mine over here whether he would be celebrating the Fourth of July, and he responded, "Yes, except we call it Thanksgiving Day." (sound of rimshot)
Every Friday for the past several years, the Business Section of the Washington Times prints a chart of prevailing consumer banking rates for consumer financial products. During that time, average credit card interest rates have consistently been lower than interest rates on consumer "personal loans" by one or two interest rates (i.e., traditional unsecured consumer loans). This is, of course, one reason why credit card borrowing has risen over time, reflecting a rational substitution by consumers for other more-expensive or less-attractive forms of credit, such as personal loans, pawn shops, and retail finance loans. Interestingly, during this same period, average rates on home equity loans and automobile loans have shown no consistent pattern, as neither is consistently higher or lower than the other (today, new car loans have lower interest rates than home equity loans). All of the interest rates on all other forms of consumer credit have remained basically constant over this time, suggesting that the jump in credit card interest rates is a result of increased risk for credit cards, rather than a general rise in interest rates or the cost of funds.
Beginning in late-April, however, for the first time since the Times has been reporting these rates, the interest rates on credit card loans shot up above those for personal loans. The most likely explanation, of course, is that in mid-April the Bankruptcy Reform Legislation was enacted--but the new rules do not go into effect for 6 months (except for the new homestead exemption cap, which went into effect immediately).
In fact, consumer bankrutpcy filings exploded in March and April, when it became apparent that the bankruptcy reform legislation was likely to be enacted. As shown in this chart, bankruptcy filings jumped from 99,000 in January and 103,000 in February, to 165,000 in March and 170,000 in April. (I am told by a researcher with access to this data that the week after the President signed the bill in April was the second-highest bankruptcy filing week in history, but I haven't been able to confirm it independently.)
So what is going on here? Quite plainly, consumers are responding to incentives--in a very big way. Critics of reform generally argued that consumers do not respond to incentives, but that bankruptcy filings are caused exogenously by debt levels and financial hardship. Indeed, it is often said that consumers are so distraught by their financial plight, that they can't even think rationally about whether to file bankruptcy.
Those of us who favored reform, on the other hand, argue that financial hardship cannot fully explain bankruptcy filing trends and that the consumer bankruptcy decision is at least to some extent a function of individual choice, and that the rising bankruptcy filing rate of the past two decades can be explained in part as a response to the incentives provided by the bankruptcy code to file bankruptcy (such as in my forthcoming article in the Washington & Lee Law Review).
The first week of May, average credit card interest rates jumped in one week from about 9.5% to 10.7% and has remained above the personal loan interest rate, which is at 10.26% today (and has remained around that level). What is going on? Well, for whatever reason, it appears that as consumers have accelerated their bankruptcy filings to make sure they get them in before the new legislation takes effect, this has impacted credit card risk dramatically more than personal loans, as further suggested by the fact that the jump in credit card interest rates occurred with a lag of about a week or two after the bill became law, and immediately after the April filing numbers were released.
Do consumers respond to incentives to file bankruptcy? The experience of the past few months strongly suggests "yes." Although this is obviously very casual empiricism, it is backed by a volume of economic theory that predicts that consumers would respond to anticipated changes in the bankruptcy laws exactly as they apparently have--by rushing to file bankruptcy before the new law takes effect. In turn, this would increase risk for those consumer credit products most prone to moral hazard (namely credit cards), and that this surge of bankruptcy filings would drive up interest rates for all consumers. This also suggests that when the legislation goes into effect in October (after the 6 month lag), bankruptcy filing rates would be predicted to fall, and credit card interest rates will be predicted to return to their historic rates below rates for personal loans (everything being constant).
By contrast, others have argued that bankruptcy filings are primarily occasioned by financial hardship (debt, medical problems, etc.) and that bankruptcy is a last resort. Thus, changing the incentives to file bankruptcy (by changing the law) is predicted not have any effect on bankruptcy filing rates. If that is the case, it is awfully difficult for me to understand how bankruptcy filings increased 60 percent from February to March alone. Overall, from January to April--the period when bankruptcy reform went from dead to enacted--bankruptcy filings are up 71%. It is hard to see how this surge can be squared with the "distress" model of consumer bankruptcy.
Faced with a 60% increase in filings in one month with no obvious alternative explanation, it is hard to escape the conclusion that consumers do respond to the incentives of the bankruptcy code. Unfortunately, human nature being what it is, in the short run we are all stuck with higher credit card interest rates to make up for all of these strategic bankruptcy filers. But, if economic theory holds equally well once the law takes effect, we can expect lower credit costs in the long run.
John Tabin criticizes the proposed amendment in The American Spectator; here are my favorite lines:
Do we really feel threatened by those so moronic that they burn the American flag, call ours a fascist state, face no consequences, and completely miss the irony? . . .
[T]he flag-protection effort ought to be scotched for the simple reason that America doesn't get rattled by some stupid little punk with a Che Guevara T-shirt and a Zippo. . . .
My colleague Ilya Somin writes at the SCOTUSblog:
Justice Thomas' dissent does an excellent job showing that the original meaning of "public use" was either actual public ownership of the condemned property or at the very least a legal right of access by the public (as in the case of takings for railroads and other common carriers). It did not mean a mere potential benefit to the public, which is why the text does not use a term such as "public purpose," which the Kelo majority uses interchangeably with "public use." Many state supreme court decisions explicitly distinguish between "public use" and "public purpose" (I can provide cites to anyone who may be interested), and the US Supreme Court should follow their lead.
The majority cites late nineteenth and early 20th century Supreme Court decisions that seem to suggest that "public use" and "public purpose" or "benefit" are synonymous. However, not only are these statements mostly mere dicta (as Thomas points out), but the decisions in question are not even about the Takings Clause at all. As my colleague David Bernstein (a leading expert on the Lochner era) has argued [on a law professors' discussion list-ed.], these cases were in fact decisions about the limits imposed on eminent domain under the Lochner-era substantive due process doctrine protecting economic liberties through the Due Process Clause of the Fourteenth Amendment. Whatever one's views on Lochner, I think it's clear that Lochner-era "substantive due process" decisions are not a reliable guide to the meaning of the Takings Clause.
A comment in the Brian Leiter/anonymity thread referred to "Brian Leiter contacting Eugene Volokh as an 'anonymous law prof' to attack a law student who outdid his law school rankings."
This turns out to be not entirely accurate. Prof. Leiter e-mailed me and asked me to post a comment pointing out the inaccuracy, but I thought it was worth noting as a separate post.
The original e-mail from Prof. Leiter to me, which I quoted and attributed to "another lawprof," was not strictly speaking anonymous: He certainly signed the message to me. The message pointed out various posts at xoxohth, and argued that the operators of the site deserved to be blamed for not removing those posts. It then said that if I wanted to publicly shame the xoxohth operator — a decision on which Prof. Leiter expressed some ambivalence, since he wasn't sure whether it was better to shame the operator, or to avoid calling more attention to what Prof. Leiter thought was a bad site — I shouldn't refer to Prof. Leiter in the process.
I found myself disagreeing with Prof. Leiter's criticism of the xoxohth operator, sent Prof. Leiter my explanation, invited him to go public with his criticisms, so that his and my views would provide an interesting contrast, but said that "[i]f you prefer, I could post your message with my response, and just label you as an anonymous lawprof." He agreed to that latter approach, and that led to the post that I link to in the preceding paragraph.
So Prof. Leiter did not precisely contact me "as an 'anonymous law prof' to attack a law student . . . ." Rather, he contacted me nonanonymously (or onymously, reader BillB points out) with a criticism of the law student, and suggested that if I did criticize the student, I should do so without referring to him (Prof. Leiter).
UPDATE: Prof. Leiter points out that, at the time he e-mailed me, he didn't yet know the site was run by a law student. I'm not sure how much of a difference this makes, but I'm happy to note it for the record.
The American Bankruptcy Institute has posted video on its website of the "Great Debates" from the Spring Meeting held a few weeks back. I participated in the first debate, "Plain Meaning Must Control Judicial Interpretation," debating with Reginald W. Jackson, of Vorys, Sater, Seymour & Pease LLP, in Columbus, Ohio. I argued the pro-textualist position, and Reggie took the more policy-oriented position.
You can see two other debates there as well. The final one, with Eric Brunstad and Robert Keach, raises some very interesting issues about the constitutional scope of the Bankruptcy Clause, for those who are interested in such things.
ABI, of course, is an invaluable resource for all things bankruptcy related.
The core debate in Kelo, as I mentioned yesterday, is over whether the "public use" requirement of the Takings Clause means (1) "the taken property must be owned by the government, or sold by the government to a common carrier that has the legal obligation to serve everyone" or (2) "the taken property must be used by the government as a means of benefiting the public, even if the government benefits the public by selling the property to a private property owner."
I argued that, if one is focusing on the practical merits, requirement 1 seems to fit uneasily with a pro-private-enterprise/pro-market philosophy: In those cases where the government is trying to accomplish some goal using the eminent domain power — an inherently somewhat unlibertarian power, but one that the Constitution does reserve to the government in some measure — there are strong pro-private-enterprise/pro-market arguments in favor of letting the government do this using private businesses, rather than doing it itself or imposing a common carrier obligation. For more details, please read that post.
Let me use the same approach to consider three other arguments I've heard many people make:
1. These redevelopment takings, people say, primarily benefit private businesses, and benefit the public only indirectly. But so what? A key argument for private enterprise is that private benefits may yield public benefits — perhaps indirectly, but much more reliably than attempts to produce the public benefits through more direct government action. A plant may benefit from getting property that it otherwise couldn't get; but this benefit will also help plant employees, nearby businesses, and others. That this is something of a "trickle-down" effect doesn't keep it from being a real effect.
2. Others point out that the redevelopment plans often don't require the private enterprise to which the condemned land is sold to keep using the land for publicly beneficial reasons. If GM ends up getting the property, on the theory that it will build a plant that would provide jobs for employees, more income for local businesses, and so on, then it could turn around tomorrow and just build a private golf course for GM executives instead.
Well, it could, but is that really likely? I suspect not, in part because (for better or worse) GM as a landowner would itself be subject to the power of local authorities. If it decides to build that golf course, it might find that the zoning on the land will get changed, or even that the property will be taken back (and likely without any more compensation than what they had to pay for the land in the first place). The city may well conclude that such an informally understood possibility of sanctions is much more effective than contractual requirements that might unduly tie up the new landowner's flexibility. (For instance, if there's a contractual requirement that GM keep the plant open for 20 years, GM might either not accept it, or might end up underinvesting in the property because it knows that it has less flexibility to pull out of the property if something should go wrong.)
The city would be taking a bet that selling the property to the plant owners unencumbered (except with the inevitable possibility of retaliation if the owners go back on the understood deal) will provide more economic benefit than selling it to them with various strings attached. That may or may not be wise, but I don't see why this judgment should make the city's decision unconstitutional.
3. Still others say that economic development just isn't a permissible public use. But the reason the government has taken property to build railroads, roads, dams, and the like -- uses that are quintessentially constitutionally permitted (even if a libertarian might argue that they shouldn't be permitted) -- is economic development.
It may be that transportation channels are more likely to be much more valuable than just new plants; "creating jobs" is a great slogan, but merely creating jobs for the sake of creating jobs ends up being financially inefficient. I'm actually pretty sympathetic to this argument as a policy matter, and perhaps, since we're talking about practical arguments, it could also be used to justify a constitutional line. Still, I'm not sure that this is so; and I think the economic question is hard enough that courts ought not make the constitutional "public use" requirement to turn it.
I should stress that these are only some of the matters that should be considered, and they may well not be dispositive. One may well think that the original meaning of the "public use" requirement in 1791 (or in 1868, or throughout the 1800s if one sees those timeframes as relevant) mandates option 1, notwithstanding the practical questions. One may also make natural rights arguments in favor of adopting the least property-rights-restrictive option, when the historical evidence makes the choice between the options into a close call. And one may think that for public-choice reasons, allowing redevelopment takings that use public-private partnerships will do much more harm than good because the private entities will pressure, bribe, or dupe the government authorities into taking property too often. My goal here isn't to say that all the Kelo critics are wrong, but only to cast doubt on some particular arguments that I've heard made.
All Related Posts (on one page) | Some Related Posts:
Kelo was litigated by the Institute of Justice, a first-rate libertarian public interest law firm; I think it's much to their credit that they could get even 4 votes -- the last case that squarely considered this issue, Hawaii Housing Authority v. Midkiff (1984), was unanimous, and Justice O'Connor and Chief Justice Rehnquist were on the side of the government there. I don't agree with them entirely as to Kelo, but I still very much respect their work, in this case and in others.
IJ has also been very successful fighting battles in lower courts, either under state constitutions or getting policies struck down under the "rational basis" test, the same test that now applies in the eminent domain "public use" analysis. Constitutional scholars may tell you that rational basis cases are virtually impossible to win (at least unless the courts conclude that the law improperly discriminates against some group, almost never an economically defined group). But IJ somehow manages to win them.
Finally, the IJ people are masters at using their cases to marshal public opinion. That often helps them pressure the government to change its policy even without a final decision in litigation. And it also helps them use cases, whether they win them or lose them, to build pro-economic-liberty sentiment generally; they're especially good at showing how economic liberty helps the little guy.
They're trying to do this with Kelo (and to incidentally raise money to fund their future work). Here's their new campaign:
Stop Eminent Domain Abuse
The Supreme Court put an UP FOR GRABS sign on your home. It said it’s OK to take your property and give it to a politically connected private developer because that developer might be able to produce more taxes and jobs off your land.
Fight back! Join the Castle Coalition!
Awhile back, around the time of Lawrence and Grutter in particular, the hypothesis was floated--mainly in jest, I assume--that the best predictor of Surpreme Court outcomes in many socially and politically controversial cases was the conventional wisdom of America's political and legal elite. And that this consensus could be captured in an operative variable as being the expressed position of the New York Times Editorial Board (perhaps the Washington Post Editorial Board as well).
The Court's ruling in Kelo got me thinking about this hypothesis again, and so I went back and looked at the New York Times Editorials in three recent cases that came to mind as perhaps the most obvious tests of the hypothesis--Kelo, Raich, and Granholm. Sure enough, traditional legal variables seem to do fairly poorly in predicting the results in those cases, as many have noted. The composition of the majorities and minorities are all over the place with little consistency.
But one variable does hit the mark three out of three times--in each case, the Supreme Court ruling met with the approval of the New York Times Editorial Page. Moreover, Kennedy--who has typically been characterized by critics as being the most susceptible to being swayed by elite opinion--voted with the Times, I mean the majority, in each of the three cases (by my calculation, he was the only one who did so). (Update: As the Comments point out, the liberals Souter, Ginsburg, and Breyer consistently were in the majority in these cases, it was the others that switched around.)
In addition to Lawrence and Grutter, of course, the New York Times variable also accurately predicted the outcome in the Campaign Finance Reform case. I haven't double-checked whether Kennedy voted with the majority in each of those three as well.
To the best of my knowledge, no one has ever taken the "New York Times Hypothesis" seriously enough to test it empirically, but at first glance at least, it looks like it has some pretty good predictive power. If someone has run regressions on this, obviously I would be interested in the results.
I have opened comments. Since I don't read the New York Times and haven't thought about all of the cases that might be thought to be "controversial" during this term (or recent terms), I would be particularly interested in if anyone has any information about other controversial cases and whether the New York Times Hypothesis turned out to be valid in those cases, especially compared to other traditional variables.
I try not to be a pure legal realist, but sometimes...
Pittsburgh's Mayor Tom Murphy comments on Kelo:
But [Murphy] said eminent domain was a key tool in convincing the Pittsburgh Wool Co. to make way for an expansion of H.J. Heinz Co. facilities, a move that he said, kept Heinz here and paved the way for Del Monte Foods Co.'s purchase of the facilities.
"There are 1,500 jobs here in Pittsburgh that wouldn't have been here if we had not had the ability to work with Heinz," Murphy said.
Eminent domain "is a great equalizer when you're having a conversation with people," Murphy said. "It's about having a fair conversation and not being held up by people who do not have any interest in the community, but only have an interest in putting more money in their pockets."
And Tony "The Great Equalizer" Soprano just wants to have a "fair conversation" with you about your construction project...
Rounds up commentary on Kelo at The Truth Laid Bear.
Thursday, June 23, 2005
1. The opinions in Kelo remind me a lot of the opinions in Gonzales v. Raich. The Court has once again reaffirmed the academic common wisdom — in Raich, that the commerce clause power is virtually limitless, and in Kelo, that almost everything is a public use. Both cases involved the same type of line-drawing challenge, in which the Constitution requires a line to be drawn but it's pretty hard to draw such a line in practice. (It's difficult to distinguish interstate commerce from intrastate commerce and commerce from non-commerce, and it's difficult to distinguish public use from private use.) In both cases, the Stevens majority opinion recognized that a line existed in theory, but put it so far out of the way that it won't bother anyone.
2. Is it just me, or does Justice O'Connor's dissent have the feel of an opinion that started out as a majority draft? This is just speculation, and perhaps idiosyncratic speculation at that, but I wonder if she had a majority at conference and lost Justice Kennedy along the way.
3. The next time someone insists that conservatives like Justice Thomas will do anything to defend corporate interests against the powerless — and particularly against powerless racial minorities — feel free to point them to Justice Thomas's eloquent dissenting opinion in Kelo. So much for that idea.
The specifics: Thursday, June 30, 9:00 am, Ballroom, National Press Club, 13th Floor, 529 14th St., NW, Washington, DC. There is no cost to attend this event. Please RSVP to Events [at] ACSLaw [dot] org. Further details on the program are available on the ACS Blog here.
I must admit it that it is a bit hard to get psyched to prepare for this panel by reading this term's opinions but duty calls. Perhaps this program will be the appropriate forum at which to officially mark the end of The Rehnquist Court and the triumph of The Stevens Court. Perhaps the Chief will decide to stick around and await reinforcements.
I've been trying all day to craft a post that could capture my astonishment--ok, outrage--towards this ruling. But I keep getting so wound up that I have to scrap it. I'll just give you a few snapshots of my false starts as Subject Lines for posts since mid-day today:
1. Government by the "Honor System": The only restraint on government violations of the Bill of Rights is the "honor system"--certainly would make it easier to conduct the war on terror and censor political criticism if those rights were also enforced by the honor system...
2. Wal-Mart Celebrates: Now Wal-Mart need not lobby for huge development and tax subsidies for its new stores, it can just get the government to take the land it wants...
3. Would the Supreme Court feel the same way if Pfizer was building its new office on the Chevy Chase Country Club?...
You can probably get the drift of why I scrapped each of these as perhaps being a bit too over-the-top.
So I'll just add--temperately enough, I hope--that I thought the purpose of the Bill of Rights was to create rights that would be protected from the government, so that we wouldn't have to rely on the honor system of the government to do the right thing, but had rights that would be enforced. Why not apply the honor system to constitutional protections for speech, religion, and criminal procedure? We can't trust the government when it comes to allowing a prayer at a high-school graduation, but we can when it comes to taking an old-woman's house in which she raised her family? It would sure make the war on terror easier if the government could just arrest anyone in the name of the public good as long as it cut an undercompensatory check for the inconvenience afterwards.
The potential for abuse in this ruling is obvious, and the fact that governments cannot be trusted to do the right thing is exactly the reason why the Michigan Supreme Court reversed Poletown earlier this year. And Justice Thomas hits the nail on the head when he observes that it won't be (and historically hasn't been) the rich and powerful who are finding their homes condemned and given to corporations, Wal-Mart, or simply someone who will build a bigger house and promise to pay more property taxes (as Will Wilkinson observes, "That is, if you have something somebody richer than you wants, watch out.").
Rather than laundering it through the government, why not just skip the government as middleman and let Donald Trump take whatever he wants whenver he wants it, and just write a check for it? Then we could skip the pretense that this is anything but rent-seeking.
Forgive me for blowing off a little bit of steam...
I'm probably off substantive blogging for the rest of the day -- some stuff needs doing in my real job -- so I doubt I'll be able to comment in a timely fashion (or even read it until tomorrow), but there are a bunch of first-rate people commenting (and, I'm told, disagreeing with my post below).
People ask me for such advice, but I have little to say beyond the unhelpful "Have gotten good grades."
My one potentially valuable bit of advice is Apply Broadly; even if you don't want to live some place for decades, you can handle a year, and even enjoy it. Applying only in the fun places puts you in constant competition with everyone else who is applying in the fun places. Also, applying only in the Ninth Circuit, as some people here out West actually do, strikes me as quite irrational: Why would you be willing to live in Idaho, Montana, Nevada, and Arizona, but not in Wyoming, Colorado, or New Mexico? If you are going to limit yourself geographically, at least limit yourself in ways that make sense.
Still, that's not a lot of help -- which is why I turn to all of you, and ask you to provide your advice in the comments. Please identify your source of knowledge (even in general terms, if you prefer to remain anonymous), though, so readers could have a sense of how generalizable the advice would be, how limited it might be to certain states or areas, and so on.
Setting aside who's right, I thought the majority and the two dissents were really very well-crafted -- readable and persuasive arguments in favor of the positions they were defending. The same was true of all the opinions in Raich v. Ashcroft; fine examples of legal writing.
Eugene has asked me if I might occasionally run a cross-post from MarginalRevolution.com, if I thought the topic would be of interest to VC readers. We each believe that the two blogs do not have massive overlap of readership. So here goes...
Here is one lengthy criticism of the treaty. Look there for the details, but here are my views:
1. The Bush Administration has not negotiated the treay on a bipartisan basis. In part this is Bush's core style, in part the Democrats have not offered much useful assistance. If the treaty passes, the "pork cost" to swing Republicans will be high.
2. The worst parts of the treaty limit anti-AIDS drugs by extending intellectual property rights to Central America too strictly. Yes drug companies will try to price discriminate, but the Brazilian solution may be better. What will happen to generic medicines in Costa Rica? Of course patent-breaking is a bad international precedent, but is Central America the relevant international tipping point for the destruction of intellectual property rights? The net effect is difficult to estimate, read more here.
3. On the other hand, sooner or later these stronger patent protections might be imposed anyway, as Central American nations develop and join the global mainstream. The question is how many people will die in the meantime.
4. More generally, the U.S. is setting bad precedent by using free trade treaties as leverage to negotiate other non-trade deals.
5. The treaty remains hostage to the interests of Big Sugar, as the sugar quota is barely weakened. Nonetheless the sugar lobby still opposes the treaty, fearing a slippery slope of further erosion of privilege. This is a good sign for the treaty.
6. Don't worry that the agreement does little for labor rights or environmental protection in Central America. Imposing such policies, before the recipient countries are wealthy enough to support them, is usually counterproductive.
7. The net move toward free trade is relatively small.
8. The biggest benefit of the treaty may be symbolic, by encouraging the Central American nations to embrace democracy more strongly and also to develop closer trade relations with each other.
9. Failure of the treaty would be a disaster, again for symbolic reasons. Trade negotiations would slow down significantly, and the age of trade agreements might be over.
The bottom line: This is probably a treaty we should pass, but it is not a treaty we should be proud of.
For many years, people who generally lean pro-free-market and small-government have argued that when the government does things, it should usually do them through private entities. Don't have the government run utilities; have them be run by private companies. Don't fund solely government-run schools; even given a public commitment to government-funded education, it's better to have much (in the view of some, all) of that education be conducted by private schools. If you're going to pay for housing for the poor, do it through vouchers, not through government-run housing projects.
Moreover, you generally shouldn't burden the private organizations with common-carrier-like "you must serve everyone" requirements, at least unless they're monopolies. Better leave landlords and educators, for instance, free (or mostly free) to decide whom to let in, and on balance their economic self-interest will generally yield optimal results. (I set aside here the debates about bans on discrimination based on race, religion, sex, and so on; the common carrier model would ban all discrimination, or all discrimination found to be "unreasonable" by some government decisionmaker, and not just discrimination based on certain proscribed categories.)
My sense is that this is indeed generally a very good policy: Once you decide that the government should be funding or assisting some services, you should nonetheless prefer that they be privately provided (better yet, competitively provided), of course with some exceptions. There are costs to this approach, but they are less than the costs of inefficient government operations. "The public end may be as well or better served through an agency of private enterprise than through a department of government." Berman v. Parker, 348 U.S. 26, 33-34 (1954).
The funny thing is that, in Kelo v. City of New London, it is the (mostly liberal) majority's test that would give the government flexibility to serve public goals by taking property and selling it to private parties, when the government thinks the private parties will be better positioned to provide the public benefit. And it is the conservative dissenters' test that would give the government a strong incentive to own and operate various enterprises itself, or insist that whoever owns and operates them labor under the burdens of being a "common carrier."
Under the dissenters' view, if the City of New London wants to take property to run a shopping mall, which would presumably provide more jobs and government revenue, it's free to do so. But if it wants to take property and resell it to a private shopping mall owner, it may not. True, the latter solution isn't the pure free market: The mall owner would be getting a government benefit in the form of property taken from the original owners (albeit with compensation), just as school choice programs get a government benefit in the form of money taken from taxpayers. Still, it seems better than the City running retail stores — yet the dissenters' approach would give the City an incentive to do that, rather than lining up more efficient private businesses to do it.
Now there are certainly other arguments in the dissents' favor. Perhaps Justice Thomas is right that the original meaning of the "public use" requirement was to mandate that the property be owned by the public or by a common carrier, and that we should therefore insist on this meaning. Or perhaps Justice O'Connor is right that without some such requirement, the government would have too much power to merely take property from one person to another, with no real public benefit. Or one could argue that as between (1) no takings, (2) takings of property to be owned and operated by the government, and (3) takings of property to be owned and operated by private parties, but for a public benefit, #3 is indeed more efficient than #2, but #1 is most efficient of all — and that we therefore should allow only #2, precisely because its inefficiencies will provide a natural deterrence to takings, and push the government more often into the best position, #1. I'm certainly sympathetic to finding some constitutional limit to government power here.
Nonetheless, if we're evaluating the practical benefits of either approach, we might want to be skeptical of an approach that favors government ownership or operation of publicly useful enterprises over private (albeit government-assisted) ownership or operation.
UPDATE: I should stress, by the way, that my point isn't just that a "government ownership and operation is OK, private ownership and operation is not" rule creates perverse incentives. The question is also whether a rule that disfavors privatized but government-assisted enterprises compared to purely government-run enterprises makes sense, given that we generally think privatized enterprises are better.
A while back, I had a post, "George Bush, liberal darling" stating that liberals should like George Bush for his vast expansion of federal spending. I received many outraged emails, and many links from outraged liberal bloggers, protesting that liberals don't like Big Government for its own sake, but rather support using the institution of government for wise, liberal ends. I accept that that these protestations were sincere. But consider the lineup in Raich and Kelo. Then consider the legal gymnastics it takes to consider local medical pot part of "interstate commerce," and to consider taking people's home and giving them to Pfizer a "public use" in the face of two hundred years of precedent that A to B transfers are illegitimate; and the fact that "liberal ends" were certainly not involved in Raich, nor in Kelo (see Justice Thomas's dissent); and consider that the liberal Justices are not exactly shy about invalidating laws when it strikes their fancy. I think a good argument can be made that the more liberal Justices on the U.S. Supreme Court do indeed support Big Government for its own sake.
In the case of Indiana v. Black, the defendant was charged with murder, and planned to raise a self-defense argument. During voir dire, the judge prevented defense counsel from asking prospective jurors "Do you believe in self-defense?" At trial, the defendant testified that he acted in self-defense, and counsel incorporated self-defense into the closing argument. After Black was convicted, he appealed on the grounds that voir dire had been improperly restricted. A three-judge panel of the Indiana Court of Appeals unanimously agreed, finding the voir dire limit to be plain error.
The appellate court's decision seems clearly correct. Some people have moral objections to self-defense, and wish to impose their morality on other people. (That's one reason why many anti-gun groups say that it is alright for people to possess guns for sport, but not for self-defense.) A defendant who claims to have acted in self-defense obviously could not receive a fair trial from a jury which included members who would not follow Indiana law regarding self-defense, but would instead refuse to consider self-defense as a legal justification or excuse. Accordingly, the voir dire process should have been available to disqualify such jurors.
UPDATE: SCOTUSblog reports:
Splitting 5-4, the Supreme Court ruled on Thursday that a local government may seize private property for purposes of profit-making private development, declaring that this constitutes a "public use" under the Constitution. (Kelo v. New London, 04-108).No word on whether they simultaneously announced the seizure to be in "interstate commerce." But I would check the footnotes just in case.
ANOTHER UPDATE: According to the AP, the line-up was 5-4 with Kennedy joining the left-of-center Justices. In an echo of Gonzales v. Raich, Stevens wrote the majority, and O'Connor wrote the dissent. I haven't read the opinions, as they haven't been posted online yet, but Kennedy's vote comes as a surprise to me.
ANOTHER UPDATE: The Kelo opinions are here. Justice Kennedy filed a concurring opinion, and Thomas filed a dissent.
USD law professor Michael Rappaport defends the normative basis of originalism on the Right Coast. In a nutshell, he argues that the supermajoritarian nature of both constitutional ratification and constitutional amendment provide a normative basis for following the original meaning of constitutional text. His post is based, in part, on this article he co-authored with John McGinnis in the Texas Law Review. This paper, in turn, seems to be but one part of this duo's scholarship on the nature of constitutional supermajority rules (see, e.g. here and here).
Wednesday, June 22, 2005
Heard on NPR today that S&P warned investors about some newly popular kind of crazy mortgage where the homeowner gets to choose each month how much he pays, and, if he pays less than the normal mortgage amount, the extra is added to his mortgage. And I thought interest-only loans were a sign that mortgage companies had gone out of their collective minds!
Also read that in D.C., 50% of all loans this year are interest-only. When (if?) prices decline sharply, I feel sorry for whoever owns these loans, because some decent fraction of the mortgage holders are going to walk away from their six-figure paper losses, either because they can't afford the adjustable-rate increases, or simply because they'd rather saddle someone else with their loss.
And federal regulators are starting to put pressure on banks and mortgage companies to rein in their wild loans.
Finally, there is www.condoflip.com, launched in Miami (where 80% of condos are being bought by speculators), and coming soon to a city near you. Certainly a sign of the housing apocalypse.
Having missed out on the housing boom, I'd like to profit from the coming bust. LEAP puts on homebuilder stocks (which have increased by hundreds of percent over the last five years) seem very attractive to me. Which publicly traded builders are most exposed to the most overheated markets (Boston, Vegas, Miami, D.C., Boston, etc.?)
UPDATE: New York Times last week: "American homeowners have made a trillion-dollar bet that mortgage rates will remain near record lows for at least few more years ... Deutsche Bank analysis shows only about $80 billion, or 1 percent of mortgage debt this year will switch to adjustable rate based largely on prevailing interest rates; some $300 billion of mortgage debt will be similarly adjusted in 2006; portion will soar in 2007, with $1 trillion of nation's mortgage debt--or about 12 percent of it--switching to adjustable payments."
In the meantime, Professor Randy Picker of the University of Chicago Law School has just announced that he is starting a blog that will do much the same thing. (Hat tip: Solove) Please welcome the Picker MobBlog to the blogosphere:
The idea is to bring together a group of interested people to blog on a particular topic, do so, and disband. I will post on the blog intermittently between mobs, but the mobs will be the heart of the blog. I think of this as an online reading group or an online workshop.This is an all-star cast for Grokster and Brand X; definitely check it out when those opinions are handed down.
. . . .
The first mob topic will be the forthcoming opinions in Grokster and Brand X. Smart mob bloggers on Grokster and Brand X will include me (Randy Picker); my colleagues Doug Lichtman and Lior Stahilevitz; Julie Cohen; Wendy Gordon; Jessica Litman; Larry Solum; and Phil Weiser.
By the way, that sound you hear is the blogosphere changing legal scholarship. It's not going to be the last time you hear it.
All Related Posts (on one page) | Some Related Posts:
- Blogs and Legal Scholarship:
- Harvard Law Review Forum:
- Are Law Review Articles Getting Shorter,...
- Law Review Article Length: What Changed?
- Randy Picker Starts MobBlog:
- All-Raich Super-Blog and the Future of Law Reviews:...
- The Future of Legal Scholarship?:
- New Harvard Law Review Policy on Article Length:
- Progress on the Length of Law Review Articles?:
The House has yet again approved an amendment to ban flagburning, so I figure it's time to yet again link to my criticism of the amendment. Here's an excerpt:
"Congress shall have power to prohibit the physical desecration of the flag of the United States, and the flying of the Confederate flag."Click here to see the rest.
OK, so that's not exactly how the proposed flag protection amendment reads — I've added the Confederate flag phrase. But this little thought experiment helps show that the flag protection amendment is a bad idea.
After all, burning the U.S. flag and flying the Confederate flag are similar in many ways. Some people argue that flagburning shouldn't be protected by the First Amendment because it isn't "speech." Well, burning one flag and waving another are pretty similar on that score. I think both are traditional terms in our political language, and should be constitutionally protected; but if I'm wrong, then both should be unprotected. . . .
Thanks to reader Spencer Macdonald for the pointer.
For those who are interested, I have collected links to many of the articles and blog materials related to the recently-completed Dartmouth trustee election on my personal website here.
A few weeks ago I noted that the Discovery Institute planned to premiere a film supporting "Intelligient Design" theory at the Smithsonian's Museum of Natural History. (My description of the film is based upon press reports, as I have not seen it.) As I understood the arrangement, the Smithsonian wasn't endorsing the film. Rather, the Discovery Institute effectively purchased the use of the Smithsonian site with a substantial contribution. When I lived in D.C. I was under the impression that this sort of thing happened all the time, and never thought that the Smithsonian "endorsed" all of the programs shown in its auditorium.
In its publicity efforts for this film, the Discovery Institute gave the impression that the Smithsonian supported the film. The Discovery Institute website, for instance, announced the event in this fashion:
Discovery Institute is pleased to join the Director of the National Museum of Natural History in announcing the national premiere and private evening reception for The Privileged Planet: The Search for Purpose in the Universe at 6:00 p.m. on Thursday, June 23, 2005.Irrespective of the museum's usual practice, this could certainly create an impression that the Smithsonian -- a scientific institution -- was endorsing a perspective that (whatever its merits) is not scientific. Whether or not some intelligent entity, be it a deity or otherwise, "designed" the universe, this is not a scientific question, and hardly seems consistent with "natural history." [Somewhat tangentially, this is why I do not believe ID, creationism, and other related ideas have any place in science classes, as they are not science.]
Now, apparently, the Smithsonian has had second thoughts. As the New York Times noted in a tiny item a few weeks ago (that I missed at the time), the Smithsonian is explicitly disavowing any co-sponsorship of the event and is returning the Discovery Institute's $16,000 contribution. Due to contractual obligations, however, the film is still scheduled to be shown tomorrow evening. For contrasting takes on this resolution, see here (second item) and here.
NOTE: Following the example set by Eugene and Orin, I am enabling comments to this (and future) posts. The usual groundrules apply.
Some people have recently faulted others for commenting on only a small part of a piece -- whether a blog post, a newspaper article, a book, or what have you. But it seems that such narrow commentary is often perfectly apt.
Say that you read an article or a post, and find something in it that's mistaken. There are several reasons why you might not want to comment on the article or post as a whole, but only on the mistaken item:
You may agree with the rest of the piece, and have nothing much to add to it.
You may not know enough to have an informed opinion about the rest of the piece.
You may think that your criticisms of the rest of the piece would be banal, too long, or otherwise boring for you or your readers, while the criticism of the one particular item is helpful and interesting.
You may think that this particular mistake is emblematic of a broader kind of error, and thus use it in a post that's about this error.
In such situations, it seems to me quite proper to focus only on the one mistaken item. If you're right in your criticisms, then you've helped correct a mistake, even if only a small mistake. If you're wrong in those criticisms, then you should be faulted for being wrong, not for choosing to criticize a small part of a post.
The author of the original item may soundly point out that some criticism goes only to a tangential part of the item. The argument wouldn't be "X is wrong to focus on only a small part of my post"; it would be "X argues that this part of my post is wrong, but readers should recognize that even if X were right, this wouldn't undermine my key point." But that just means that the comment on the small portion is of limited utility -- not that such commentary on small portions is improper.
Prof. Leiter also says something about the tenure process that struck me as quite odd:
Mr. Non-Volokh gives as the reason for anonymity concerns about getting tenure. I confess I wonder about the prudence of that rationale: I would think a tenure process deprived of the information that the candidate had been writing about legal matters for years on a very public website would be invalidated once that information became known.
I only know first-hand the tenure process as it operates at UCLA, but I had thought the UCLA model was representative of the legal academy: Junior faculty -- who, at most law schools, were generally hired with something of a presumption that they would indeed be tenured -- are judged on (1) scholarship, (2) teaching, and (3) service to the university, profession, and community. One's nonscholarly writings, such as columns in a local alternative newspaper, blog posts, and the like might be seen as a form of community service; but they are not a major factor, and if a candidate didn't want them to be considered, they wouldn't be (at least in the absence of unusual misconduct such as plagiarism).
And this makes perfect sense. Evaluating a law review article is evaluating what should generally be a thoughtful, thorough, carefully footnoted work that pays close attention to counterarguments. Even so, ideological prejudice will inevitably color the evaluation; even if we try hard to be objective, we'll naturally think (all else being equal) that articles that come to views with which we agree are better reasoned than those that come to views which we have rejected. But at least we'll see the many pages that carefully engage our preferred arguments, the close discussion of ambiguities in the sources, and the product of many months or years of thinking; and we may therefore often accept the article as meritorious even if we disagree with its bottom line -- which is often only a small part of the article's value.
Evaluating quickly written and necessarily highly incomplete op-eds or blog posts will necessarily prove to be a much more partisan process. Such pieces tell us relatively little about the author's qualities as a scholar, and pose a relatively large risk of ideological bias in the evaluation. Of course some people on the Right are sometimes impressed by some blog posts coming from the Left, and vice versa; yet this will often not be so -- and more often than with scholarly articles -- for reasons that have to do with ideological disagreement rather than any objective failings on the poster's part. Considering such nonscholarly writing is not irrational; one can argue that they do shed some light on the author's qualities of mind. But since the important qualities for a scholar are the ones that he exhibits in his scholarship and teaching, and the tenure process already thoroughly evaluates those qualities, it makes little sense to also focus on material that has much less bearing on the subject, and poses more of a risk of unfair evaluation.
In any event, I am pretty sure that at UCLA people (1) would barely even read a person's blog posts, newspaper columns, op-eds, and the like, (2) if the person asks, would entirely exclude them from the analysis, and (3) certainly wouldn't go back over a tenure case because they had learned that the person had been writing newspaper columns or blog posts on the subject.
Am I mistaken? Do other law schools carefully follow a person's nonscholarly ideological writing in deciding whether to give the person tenure? Does Prof. Leiter's own University of Texas Law School do that?
Related Posts (on one page):
- Clarification About an Earlier Message From Brian Leiter to Me:
- Brian Leiter's View of the Tenure Process:
- Brian Leiter Trying To Out Juan Non-Volokh:
Prof. Leiter criticizes Juan's criticism of one of Leiter's posts, and proceeds to say:
So who is Juan Non-Volokh? I intend to find out and to post that information here in due course. I welcome your help ... and I promise to keep my sources secret!
I will let you folks be the judges of whether this is good behavior on Prof. Leiter's part. In my view, the nicer thing to do is to respect people's preference for anonymity, at least unless there are some unusual circumstances (more than just disagreement with their views) that are absent here.
UPDATE: Brian Leiter says here that he won't publicly identify Juan, though in this update to his original post he says that "perhaps" he won't do it. If the first of these two is indeed the conclusion to which he has come, then I'm happy to hear it.
Related Posts (on one page):
- Clarification About an Earlier Message From Brian Leiter to Me:
- Brian Leiter's View of the Tenure Process:
- Brian Leiter Trying To Out Juan Non-Volokh:
Lloyd Cohen, a George Mason lawprof who has been working on this subject for a long time, has a new proposal. Here's an excerpt from the introduction:
After spending sixteen years urging legal reform that would permit compensation for organ donation in order to increase the supply of transplant organs I have decided to reverse course. I will now try to increase the supply of organs by decreasing the supply of organs, that is, by urging you to commit to not donating your organs unless you are compensated.
Why this radical change in direction? Because, my efforts to change the law and increase the supply of organs have proven fruitless, and there is really very little that I or anyone else can add to the argument for employing a market incentive to increase organ donation. . . .
I'm finishing up a piece on Lochner v. New York, and have found some very interesting background information from the Bakers Review, a publication of bakery owners. As far as I can tell, I'm the first person to utilize this source (as opposed to the Bakers' Journal, published by the bakers' union) when writing about Lochner. The problem is that the Library of Congress, which is supposed to have the whole set, only has issues beginning 1902, whereas the publication started in 1898. And the George Mason library staff has been unable to find any other library that has the 1898-1901 volumes. If any VC readers have any clues to where I might find this publication (an obscure archive or historical society that isn't connected to the WorldCat database?), I'd be grateful. dbernste at gmu dot edu.
The lead editorial in the new issue of National Review, "A Case for Mercy," is powerful and sensible response to the Raich decision. In addition to identifying the flaws of Justice Scalia's concurring opinion, NR highlights the "folly" of current federal policy.
Many patients suffering from terrible diseases find that smoking marijuana provides them relief from their symptoms or from the side-effects of their treatment. The chief response to their plea for compassion, on the part of the drug warriors, has been to insist that the Food and Drug Administration has not determined that marijuana is a safe medicine, and that other palliatives are available. It is a despicable response coming from people who have never allowed researchers the freedom to conduct the detailed clinical trials that the FDA would need to verify safety. A cancer patient seeking a break from overwhelming nausea will hardly be consoled by the knowledge that the government is protecting him from the remote risks that pain relief might bring. Whatever the drug czar thinks, some of these patients say that marijuana substitutes do not work as well as marijuana in relieving their pain. Swallowing Marinol takes longer to work, is more expensive, and has more adverse side effects than smoking marijuana. Should we be happy that with marinol there is less risk that cancer patients will experience some illicit pleasure?Now that's the sort of compassionate conservatism this Administration should endorse -- but I wouldn't bet on it.
Several states have rejected this perverse logic in referenda. The Supreme Court has just ruled, however, that the federal government may continue to prohibit the medicinal use of marijuana. Whether marijuana-using patients in California will face the threat of jail time thus depends not on their state’s laws but on the discretion of federal prosecutors. . . .
. . . Allowing sick people to use marijuana probably would marginally reduce the effectiveness of federal anti-drug laws. But it’s not as though those laws would be enforced perfectly in the absence of exemptions for medical marijuana. Other factors undermine the law’s effectiveness far more: human nature; the economics of prohibition; the exemption from the law we give, in practice, to most casual drug users. Can it really be maintained that the drug laws are working so well for the nation that we cannot risk reducing their efficacy by giving cancer patients a break? And if not, shouldn’t Congress amend the law?
A few VC readers, most notably Dan Simon, have pointed out the dependence of the reported shoplifting results on the shoplifting of organized gangs. Here is one indicative, and to me surprising, discussion:
Organized gangs are stealing bulk quantities of over-the-counter drugs such as Advil and other popular consumer items including baby formula, razor blades and home pregnancy tests. The stolen goods are sold to a buyer who repackages and resells the merchandise. ``We're not talking about your garden variety shoplifter," said Ty Kelley, director of government relations for the Food Marketing Institute, a Washington trade group representing food retailers and wholesalers. "These are professional gangs who have a shopping list and go into stores and sweep the shelves."
I'm a lot more skeptical about this story. The ALA is engaged in a legislative fight right now trying to get the Senate to adopt the House's view that libraries should be exempt from the usual surveillance rules. Oddly, they announced the major findings of their report but have not yet released the report itself to allow us to scrutinize the report ourselves. Further, according to the Times story, librarians who reponded to the survey were intructed to do so anonymously, "to address legal concerns." This is a rather odd choice; very few types of surveillance come with any nondisclosure orders, so in the vast majority (if not all) cases, librarians are perfectly free to disclose all of the details and name names. Finally, note the careful wording in the Times story about the scope of the report: the report apparently logged the number of "inquiries to libraries for information on reading material and other internal matters." What are "other internal matters," and how many of the requests for information concerned "other internal matters" rather than "information on reading material"? My guess is almost all of them, but the report apparently doesn't say.
Putting it all together, it seems that the report gives us a number probably based mostly or entirely on contacts unrelated to reading habits; is based on anonymous reporting for reasons that remain a bit unclear; and even then, the report itself hasn't been released by the lobbying group that created it so we can't read it. This was good enough for the New York Times, but I think a bit more caution is warranted before we can accept the alleged findings at face value.
Tuesday, June 21, 2005
A friend of mine and her boyfriend are traveling in Mexico, and have an interesting, amusing, and visual travel-blog. I liked it even though I'm not that interested in Mexico; if you are interested in Mexico, you should like it even more. (This plug was entirely unsolicited.)
By the way, wouldn't it have been something of a public service for Editor & Publisher to have posted the Complaint in the case, so that interested readers could read it for themselves? True, not a lot of readers would have seen it, but I suspect that many people who read Editor & Publisher are fairly interested in details such as this. Moreover, having the Complaint could help other journalists, scholars, and commentators speak more intelligently about the case; and I take it that the media sees fostering intelligent discussion as part of its mission. More broadly, the practice of posting original documents can make it easier for readers to check whether stories are accurate, whether quotes are in context, whether important details might have been missed, and so on -- and that too would advance public enlightenment.
True, I realize that I'm asking the magazine to be somewhat public-spirited here. But it's not a terribly expensive form of public-spiritedness -- and the journalism profession does often stress its public-spiritedness, and its commitment to enlightening the public as well as making money.
Related Posts (on one page):
- Posting Key Documents in News Stories:
- Indianapolis Star Religious Discrimination Lawsuit,
and the Role of the Star's Editorial Policies: Editor & Publisher reports that
Two former editorial writers at The Indianapolis Star have gone to court, charging that top newsroom managers "consistently and repeatedly demonstrated . . . a negative hostility toward Christianity."
James Patterson and Lisa Coffey have sued the newspaper and its owner, Gannett Co., claiming religious, racial and age discrimination in a lawsuit filed Tuesday in federal court.
The two are asking to be reinstated at the paper, and be compensated for lost income, benefits, emotional distress and unspecified punitive damages. . . .
In their lawsuit, the two allege Star Editor Dennis Ryerson and Publisher Barbara Henry said editorials perceived as proselytizing or containing Christian overtones could not be printed in the paper.
Patterson's attorney, John Price, told local TV station WTHR, "James Patterson ran into this problem when he wrote an editorial and asked people to pray for the Iraqi war and one of the new persons assigned by Gannett said that the use of the word 'prayer' in an editorial offended him."
Patterson told WTHR, "This is America. We have the right, under the first amendment, to express those views. At a newspaper, which has had a conservative voice for years and years and years, our argument is we should be allowed to express those views without being persecuted."
Coffey said she was demoted to the copy desk because of her religious beliefs. She claims her problems began after the newspaper ran a series she wrote on sodomy. . . .
I agree that certain applications of antidiscrimination law violate the First Amendment, at least where hostile environment harassment law is involved. But having read a copy of the complaint in this case (which the fabulous UCLA Law Library was good enough to track down for me), I think the situation here is more complex.
The Editor & Publisher article doesn't stress this, but the plaintiffs aren't claiming that the newspaper's editorial policy related to religious proselytizing or criticism of homosexuality was illegal. Rather, they claim that the newspaper fired, demoted, failed to promote them, or failed to give them raises because of their religious beliefs -- and they give the newspaper's editorial decisions merley as evidence that the newspaper is indeed prejudiced against devout Christians.
Such use of speech as evidence of intentions (or of actions) is constitutionally permissible, see, e.g., Wisconsin v. Mitchell, 508 U.S. 476, 489-90 (1993); Street v. New York, 394 U.S. 576, 594 (1969); Haupt v. United States, 330 U.S. 631 (1947), and pretty routine. If you're being prosecuted for killing Joe Schmoe, then your past statements "I hate Joe Schmoe" or "All Slobovians deserve to die" (and Schmoe is a Slobovian) may well be used as evidence that you had the motive to kill him, which might be relevant to whether you were the killer, or whether your "it was only an accident, I loved the man!" defense is legitimate.
Likewise, in at least some situations, an employer's views about race, religion, and sex may well be used as evidence relevant to (though not dispositive of) whether the employer's actions were motivated by an employee's race, religion, or sex. Sometimes, the speech may be excluded as mere "stray remarks" the prejudicial effect of which would substantially outweigh their modest probative value. And sometimes, even if the evidence wouldn't be entirely excluded, a court may conclude that it's so weak that, in the absence of other evidence to buttress it, the plaintiff's case should be dismissed. Either of those may yet happen here. But sometimes the evidence will indeed end up being admitted, because it is indeed quite relevant.
Of course, such use of speech as evidence may deter speech. One problem with antidiscrimination laws and hate crimes laws is that they make people's views on race, religion, and sex especially legally significant; people's ideological statements then become especially likely to be introduced at trial, and thus some people -- for instance, managers who make hiring and firing decisions -- will be deterred from saying anything controversial about certain subjects. Nonetheless, this potential deterrent effect arises whenever ideological speech is used as evidence, which can happen in a wide range of cases from treason and murder cases on down. And the legal system generally takes the view that the value of using speech as evidence justifies this indirect deterrent effect.
There is, however, one possibly unconstitutional (though narrow) aspect to the plaintiffs' lawsuit: In addition to discrimination in firing, promotion, salary, and demotion decisions, Patterson also alleges that he "was denied recognition for his positive contributions at The Star"; among other things,
Mr. Ryerson omitted any reference to Plaintiff Patterson in his laudatory e-mails in June and July of 2004 to other reporters at The Star regarding their coverage of Death Row inmate Darnell Williams, even though Plaintiff Patterson had written the most about this case and had been the first Star journalist to write significantly about its injustice. In addition, in October 2004, Patterson was one of three Editorial Board members who won two first-place national awards for his writing (the award was for best editorials in the nation and best overall entry). The award to Patterson was not acknowledged on the Gannett website, a status which persists to this day, though the posting of such awards has been the usual and customary procedure by Gannett for decades. Moreover, The Star has refused to publish any story reporting on Patterson’s achievements.
It seems to me that a newspaper has a categorical right to decide whether to publish an article praising someone, whether to write something on its Web site praising him, and whether to send around an e-mail praising him -- even if its decisions about what to write are motivated partly by someone's religion, race, sex, or what have you. So if a court holds the newspaper liable for such decisions about what to publish (as opposed to decisions whether to hire or fire someone), that would indeed be unconstitutional.
Finally, I should note that there's a plausible First Amendment argument that newspapers have some rights to discriminate based on race, religion, sex, and the like in their choice of reporters, for instance if it wants to publish "he said" / "she said" columns, or "white view" / "black view" columns, or for that matter if it wants to present itself as the Aryan newspaper that only publishes Aryan voices. Nonetheless, even if this discrimination is constitutionally protected in cases where the newspaper can clearly explain how selecting an employee based on race, religion, or sex will affect its speech (compare the Boy Scouts v. Dale case, where the Boy Scouts claimed that a scoutmaster's sexual orientation) -- a big "if" -- this is not such a case: The newspaper has never claimed a journalistic reason to select writers or editors based on religion.
The NYT reports AMC Entertainment and Loews Cineplex plan to merge, creating the nation's second largest movie theater chain. Should the federal government subject this deal to antitrust scrutiny, it might give an enterprising federal judge the opportunity to try and outdo Judge Kozinski's infamous opinion in United States v. Syufy Enterprises.
In a post last September suggesting the Bush Administration has fascist tendencies, Brian Leiter wrote the following:
Much may turn on what is meant, of course, by "fascism," which is why I started by alluding to the erosion of freedom and democratic values. . . . one might well think that "some provisions of Bush's PATRIOT Act, his detention of American citizens without charges, his willingness to let corporations write legislation, and the so-called 'Free Speech Zones' around his public appearances are all steps on the road to American fascism." . . .VC reader Steven Hamori thinks that Leiter (like many contemporary commentators and perhaps the editors of the American Heritage Dictionary as well) is confused about the definition of fascism, and misinterprets the oft-repeated Mussolini/Gentile quote that "Fascism should more appropriately be called corporatism because it is a merger of state and corporate power." Hamori writes
. . . as the Italian philosopher, and Mussolini contemporary, Giovanni Gentile put it, in a definition Mussolini subsequently claimed credit for: "Fascism should more appropriately be called corporatism because it is a merger of state and corporate power." And herewith a modern American Heritage Dictionary definition of "fascism": "A system of government that exercises a dictatorship of the extreme right, typically through the merging of state and business leadership, together with belligerent nationalism."
There is nothing unreasonable, plainly, in worrying that the Bush Administration and its policies represent the coming of fascism in the above sense to the American landscape (mainstream economists, like Paul Krugman and Brad DeLong, have documented the merger of state and corporate power during the Bush years at length)--but it is perhaps more fascism of the Italian, not Nazi, variety, since it has no racial component.
[The quote] has circulated in the left wing blogshere for as long as I can recall... I believe it to be a real one too although some credit it to Giovanni Gentile (Mussolini allegedly took credit for it while not originally uttering it).Hamori concludes:
[According to Wikipedia:]"Gentile, described both by himself and Mussolini as 'the philosopher of Fascism', was the ghostwriter of 'A Doctrine of Fascism' which, signed by Benito Mussolini, described Fascism in the Italian Encyclopedia (which was edited by Gentile)."
The problem is that a 'corporate' in Italian of the period is not a business organization. A corporate is a production planning board made up of workers, owners, and others involved in production advocated by the syndicalist school of socialism. Their beloved quote is actually Mussolini (or maybe Gentile) making a connection between fascism and socialism . . .
[Again, Wikipedia]"Historically, corporatism or corporative (Italian corporativismo) is a political system in which legislative power is given to corporations that represent economic, industrial and professional groups."
"Under Fascism in Italy, business owners, employees, trades-people, professionals, and other economic classes were organized into 22 guilds, or associations, known as "corporations" according to their industries, and these groups were given representation in a legislative body known as the Camera dei Fasci e delle Corporazioni."
I doubt Leiter knows anything about the history of fascism. Intellectually, the progressive left has a lot more in common with it than the 'libertarian right' (the real liberals). . . . If anyone advocates a merging of 'business corporate' and state it is the regulation happy / anti competition left. The average 'right winger' says let an uncompetitive business fail.For more on the socialist roots of Mussolini's fascism, see here.
UPDATE: Clayton Cramer finds more of interest to this discussion in Mussolini's writings.
SECOND UPDATE: Brian Leiter e-mails: "If you're going to insult me, you ought to do so under your real name." I've already addressed my pseudonymity on this site many times (e.g. here), and have no desire to do so again (at least not right now). In any event, while expressing disagreement with his views, I do not think I insulted Professor Leiter in either of my posts. If I am wrong on this point, I apologize.
YET ANOTHER UPDATE: Crooked Timber's Henry Farrell has more thoughts on fascism, corporatism, and syndicalism, and takes issue with Hamori's account above. For more on the Mussolini/Gentile view, here is the complete text of "The Doctrine of Fascism."
First is Advil, here is the longer list, follow the links for a discussion of caveats and qualifications. My intuitive response to the data is that people shoplift when they are desperate, or feeling some kind of pain or depression, rather than calculating cost and benefit in a rational Beckerian fashion.
Monday, June 20, 2005
The Department of Justice is quietly shopping around the explosive idea of requiring Internet service providers to retain records of their customers' online activities.It is quite unlikely that the claim in the first paragraph is true. Privacy advocates have been expressing concern for years that there are secret DOJ plans to mandate ISP data retention. When asked, however, DOJ officials repeatedly have made clear that such a proposal is out of the question.
Data retention rules could permit police to obtain records of e-mail chatter, Web browsing or chat-room activity months after Internet providers ordinarily would have deleted the logs--that is, if logs were ever kept in the first place. No U.S. law currently mandates that such logs be kept.
What is the evidence that times have changed, and that now DOJ is "quietly shopping around" this "explosive" idea? As best I can tell from Declan's story, it is this and only this: A few weeks ago, at a Holiday Inn in Alexandria, Virginia, unnamed Department of Justice employees, apparently from DOJ's Child Exploitation and Obscenity Section (CEOS), mentioned the possibility of mandatory data retention requirements in a meeting with some ISP representatives.
Who are these DOJ employees, though? CEOS does not have any high-level policy makers, as far as I know. It is a section consistening entirely of career prosecutors. No one at CEOS has the authority to opine on such a enormous and controversial question except entirely in his personal capacity. And the chances that DOJ would decide to "shop around" such a high-profile proposal using career lawyers meeting at a Holiday Inn seems a bit far-fetched.
If I had to guess, I would imagine all that happened in this meeting was that a random career lawyer at DOJ had been wondering about data retention, and decided to discuss it as a possibility in a meeting despite DOJ policy to the contrary. Or perhaps the lawyer foolishly tried to raise the possibilitz as a threat to push ISP representatives to think more seriously about voluntary data retention. Either way, DOJ has not changed its policy at all. Is it possible that there is more to the story than that? Yes, but on the whole it is quite unlikely.
I have enabled comments. As always, civil and respectful comments only. Thanks to Ran Barton for the link.
At the end of a long post on whether President Bush can be impeached (in which he labels UNC Prof. Michael Gerhardt a "shill" for the Bush Administration for his contribution to this Salon symposium) Brain Leiter offers this "somewhat tangential comment":
in every society of which I'm aware the vast majority of the preeminent academic figures were, in general, cowards when it came to their own regimes, and apologists for what later generations would see clearly as inhumanity and illegality. This was clear in Germany in the 1930s, as it was in America in the 1950s. There is no reason to think the United States today is any different. (Emphases in original).
While this statement might not equate Nazi Germany with the current regime, it certainly suggests an equivalence between those who failed to oppose Nazism, those who failed to oppose McCarthyism, and those who do not oppose the Bush Administration. Haven't we had enough of these sorts of comparisons?
UPDATE: In an update, Leiter links to an earlier post cataloging alleged similarities and differences between 1930s Germany and America today. Leiter comments:
There is nothing unreasonable, plainly, in worrying that the Bush Administration and its policies represent the coming of fascism in the above sense to the American landscape (mainstream economists, like Paul Krugman and Brad DeLong, have documented the merger of state and corporate power during the Bush years at length)--but it is perhaps more fascism of the Italian, not Nazi, variety, since it has no racial component.
Coming from a somewhat different ideological vantage point, Clayton Cramer e-mails:
It is certainly true that academics overwhelmingly defended the Nazi ideology, in some cases, producing what later came to be embarrassing nonsense about "racial science" and "Jewish physics." Shirer's _Rise and Fall of the Third Reich_ examines this, and points out that even before the Nazis came to power, teachers and professors were largely in sympathy with the Nazis' goals, even if they found their style offensive. It is no surprise that teachers and college students (taking advantage of the newly lowered voting age of 18) voted heavily for the Nazis.Maybe things are different at the University of Texas (though I doubt it), but I find the idea that American academics at large are too afraid to criticize the Bush Administration to be quite laughable.
I would agree that nothing has really changed; academics are overwhelmingly on the side of totalitarian thugs throughout the world--but NOT on the side of George Bush (emphasis his).
Leiter's claim that academics "are often cowards when it comes to their own regimes" may well apply to us untenured types, however. Academics without tenure rarely criticize their tenured colleagues -- at least not with the harsh language commonly found in Leiter's own posts about those with who he disagrees. If that is cowardice in Leiter's book, so be it. I've accepted such charges before.
Sunday, June 19, 2005
I express no opinion about the bottom line of the Downing Street retyping matter, but I did want to speak to one small item raised by USS Neverdock:
It appears the originals may still exist after all. Raw Story has this tid bit:
“I first photocopied them to ensure they were on our paper and returned the originals, which were on government paper and therefore government property, to the source,” he added. [...]
“It was these photocopies that I worked on, destroying them shortly before we went to press on Sept 17, 2004,” he added. “Before we destroyed them the legal desk secretary typed the text up on an old fashioned typewriter.”
Smith appears to be tripping up here. He says he returned the originals because they were on government paper and therefore government property. So, photocopying a page out of a book makes the words no longer the property of the author?
Actually, if you get a government-owned government-written document in the U.S., and you want to print something from it, copying it and returning the original makes sense.
First, it is not a violation of the government's property rights for you to copy the material; under U.S. law, government-written documents aren't protected by copyright. Moreover, under U.S. law, it is generally not illegal for a newspaper to publish leaked classified documents (with, I believe, some exceptions), though it would be illegal for someone who got them in confidence to publish them. (One may also want to return the documents to help protect one's source, if the absence of the documents might implicate him in a way that the leak itself will not.) I realize that returning the originals may make it harder to authenticate the documents, and perhaps under some circumstances holding on to the originals may therefore be justified; but as a general matter, one isn't legally (or ethically) entitled to keep other people's or entities' physical property, even if one is free to publish copies of it.
Second, it is illegal to hold on to the physical document, because that tangible piece of paper is indeed the government's property. Moreover, it would probably also be unethical to do hold on to those documents, for the same reason.
My vague sense is that under U.K. law, the government does have copyright in government-written documents, but I suspect that (as in the U.S.) copyright is a narrower property right than the physical right to the documents; reprinting newsworthy copyrighted documents may under some circumstances be what U.S. law calls "fair use." Also, it may be the case that U.K. law does prohibit the republishing of classified documents -- but a newspaper might not feel that ethically obligated to comply with this law, but might feel ethically obligated to comply with the law that bars keeping tangible items that belong to someone else.
So I can't speak with complete certainty here as to what U.K. journalists are legally obligated to do; but in the U.S., it would make perfect sense -- both for ethical and legal reasons -- to return the originals even if one is publishing the copies.
Senator Richard Durbin has been justly mocked for his statement about what an FBI agent reported seeing at Guantanamo:
"If I read this to you and did not tell you that it was an FBI agent describing what Americans had done to prisoners in their control, you would most certainly believe this must have been done by Nazis, Soviets in their gulags, or some mad regime — Pol Pot or others — that had no concern for human beings."
The more plausible analogy to Guantanamo is British interrogation of Irish Republican Army suspects in the early 1970s. Then, the British extracted confessions through "the five techniques": wall-standing, hooding, continuous noise, deprivation of food, and deprivation of sleep. The European Court of Human Rights, in the 1978 case Republic of Ireland v. United Kingdom, ruled that the techniques did not constitute "torture," but were "inhuman and degrading," in violation of Article 3 of the European Convention on Human Rights.
The European convention obviously does not apply to the American interrogation of Arab or Afghan terrorist suspects at a military base in Cuba, but there are still plausible objections that can be raised against coercive interrogations, even when the persons being interrogated are terrorists. Serious discussion about Guanatamo would be enhanced by looking to appropriate historical analogies (such as the U.K.'s self-defense in the 1970s against the I.R.A.), rather than to absurd analogies, such as those drawn by Senator Durbin, which trivialize the Holocaust, the Soviet genocide, and the Pol Pot genocide.
Two years ago, few would question the veracity of news reports based upon leaked government documents. Not anymore. After the "60 Minutes" scandal over the "fake but accurate" Bush National Guard memos, charges that leaked documents are more difficult to dismiss. For example, I don't know quite what to make of this.
UPDATE: Powerline says "if they were fakes, they'd say more." Given Powerline's central role in exposing the "60 Minutes" fakes, if they accept the documents, that's good enough for me.
SECOND UPDATE: Kevin Drum provides further evidence the memos are real.
That's the thesis of my latest media column for the Rocky Mountain News. The column points out the media's failure to cover the Ethiopian genocide against the Anuak people, the severe undercoverage of the genocide-by-starvation in Zimbabwe, and minimal attention to the disaster, including genocide, in the Democratic Republic of the Congo. That the Sudanese genocides in the south Sudan (against black African Christians and animists), and in west Sudan (against black African Muslims in Darfur) have received some media attention is mainly because human rights activists, particularly Christian groups in the U.S., have forced the issue into the public's consciousness.
The media are correct, I concede, in recognizing that most readers have scant interest in Africa. But I argue that in the case of genocide, the media have an ethical duty to keep the issue constantly in front of their audience. One reason the promise of "never again" has turned into the awful reality of "again and again and again" is that Third World genocide receives so little Western media attention.
Past and present members of the tobacco trial team say that during the Clinton and the Bush administrations, the political leanings of whichever administration was in charge were always a factor in a case involving so much money and so many powerful players.
"I don't know that what the Bush administration has done is any more politically based than what Clinton did in bringing the case in the first place," said Paul Honigberg, a lawyer who worked on the Justice Department's case from its inception and left as deputy director of the trial team in September 2001.
What's the case that Schiavo's 1990 collapse might have involved a homicide or attempted homicide? According to press reports, the key is a possible delay between when Michael Schiavo found Terri collapsed and when he called the paramedics:
In a 2003 interview on "Larry King Live," Michael Schiavo said he heard his wife fall around 4:30 a.m., the same time he told the medical examiner's office. Later, during the 2000 trial on his wife's end-of-life wishes, he said he heard a "thud" and rushed to find his wife lying in the hallway at about 5 a.m.Although Gov. Bush's letter apparently isn't clear on this, I gather his theory is that perhaps Michael Schiavo attempted to kill Terri Schiavo back in 1990 by intentionally failing to call the police for 40-70 minutes after she collapsed. I'm not sure that's the theory, actually, but that's my best guess.
Yet according to the autopsy report, paramedics weren't summoned until 5:40 a.m.
"In light of this new information, I urge you to take a fresh look at this case without any preconceptions as to the outcome," Bush wrote to McCabe. "Mrs. Schiavo's family deserves to know anything that can be done to determine the cause and circumstances of her collapse 15 years ago has been done."
I recognize that the Schiavo case is a terribly sad and emotional topic. But assuming I am right about Gov. Bush's theory, I think it's worth noting how implausible that theory is from the standpoint of trying to make out a criminal case. As I understand it, the theory would require that Michael Schiavo: a) wanted Terri Schiavo to die, and intentionally decided to wait 40-70 minutes before calling the paramedics; b) didn't wait until the morning to call to make sure she was dead, but instead waited only 40-70 minutes and then called at the unusual hour of 5:40 am; and c) later decided to go on Larry King Live where he announced the key piece of evidence against himself by giving the time of the collapse as 4:30am instead of 70 minutes later. How likely is that?
Have I misunderstood Bush's letter, or the evidence? Or am I wrong in thinking the cases is being investigated as a possible attempted murder? Or am I wrong that this theory seems quite implausible? I have enabled comments. As always, civil and respectful comments only.