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Saturday, July 2, 2005

Two Clerks Reflect on Their Year With Justice O'Connor: NPR's All Things Considered has an interesting interview segment with two former clerks for Justice O'Connor (and, coincidentally, two friends of mine), Patricia Bellia OT96 and RonNell Andersen Jones OT03. Hat tip: Howard.
"Court Ruling Leaves Poor at Greatest Risk":

The Real Estate Section in today's Washington Post has an informative article by Kenneth R. Harney on the likely winners and losers from Kelo, "Court Ruling Leaves Poor at Greatest Risk":

Where does that leave you if your local government sees potential for a higher and better use for your home and land? What if you, like the New London homeowners, don't want to give up your home no matter what you're offered?

In brief: The court's decision leaves you in a weaker position, at least under federal law, than you might imagine. The majority of justices on the current court appear to be saying that "public purposes" may be discernible in a wide variety of private projects. If, for example, your city's political leaders decided that all the houses on your street would produce higher tax revenue as a regional shopping center, they are now in a stronger position to seize your house under the court's Kelo doctrine.

As a practical matter, who's really at greater risk of such seizures? Surely not homeowners in the wealthier parts of town, who have the ears of, if not control of, the local political establishment.

Dana Berliner, a lawyer for the Institute for Justice, the libertarian public interest law firm that represented the New London homeowners, says certain categories of homeowners are at heightened risk. Based on her research on more than 10,000 of what she terms "abusive" eminent domain seizures across the country, the high-risk homeowners are:

· Residents of older neighborhoods in locations that make them attractive for a supposedly "higher and better use" -- for example, near a waterfront or in a low-density area adjacent to higher-density commercial areas.

· Working-class and middle-income areas in general.

· Neighborhoods with high concentrations of lower-income minority residents.

This being the Real Estate Section of the paper, the article also provides some practical advice for what homeowners can try to do to prevent having their homes seized and given to politically-influential developers.

Seconding the Motion for Edith Jones:

Allow me to second Larry Ribstein's motion that the President nominate my dear friend and sometimes co-author Edith Jones as the obviously best appointment to replace Justice O'Connor. She is smart, thoughtful, experienced, principled, and of impeccable judgment and character. An extraordinary person and extraordinary judge. As Larry suggests, she is the obviously correct choice for the slot.

In addition, Ribstein notes another key element of Jones's background that distinguishes her from many other excellent candidates--her deep experience in business law issues, an area in which, as Larry notes, the current Court is "sadly lacking." Given the substantial portion of the Court's responsibilities on issues including bankruptcy, securities, antitrust, etc., the Court could certainly use some additional expertise on those issues.

If the President decides to appoint a woman and does not decide to name Edith Jones, I think the clear other choice is my friend Alice Batchelder of the Sixth Circuit. Batchelder, like Jones, is smart and deeply experienced, as well as sharing a particular expertise in business law. She also has great judgment and common sense. She began her judicial career as a Bankruptcy Judge, then was appointed by President Reagan to the federal District Court for the Northern District of Ohio, before being named to the Sixth Circuit by the first President Bush. Batchelder is smart, thoughtful, and charming, and would also make a superb choice to the Court. Given Batchelder's immense experience and sound judgment, she may be a somewhat easier confirmation than Judge Jones (although, as I previously noted, I think it is going to be a fight regardless, and the goal should not be to try to avoid a fight, but rather to get someone actually worth fighting for).

Finally, both Jones and Batchelder would bring to the Court something that currently is sorely lacking--a real-world, outside-the-beltway perspective. The insularity of the Court today is quite striking, especially after the long stability of the Court's membership, and they must be oblivious as to what is actually going on in the rest of the country and how they are perceived in real America (sorry Justice Breyer, I don't count Cambridge as "real America"). It has been decades since any of them lived outside the northeast corridor (at least Justice Thomas gets out in his RV during the summer). It might be useful to have someone around who can pop their balloons every once in awhile and give them a sense of the real world. Jones and Batchelder, both of whom are absolutely loaded with good common sense and grounding, would certainly meet this test. Others on the short list, such as McConnell, Bainbridge's choice, obviously fit this bill as well (although Michael's real-world credentials are somewhat attenuated by his professional career as an academic...).

If the President decides to appoint a woman, it seems obvious that Jones is head-and-shoulders above the pack, with Batchelder making an excellent choice as well. As far as I can see, there are no other candidates in the same league as these two (assuming the President doesn't want to pick another fight with Brown again so soon).

Update:

[In response to some emails, I wanted to make sure that readers recognized that my crack at academics in discussing Michael McConnell's suitability for the Court was a joke.]

Related Posts (on one page):

  1. Alice Batchelder:
  2. Seconding the Motion for Edith Jones:
Confirmations and Constitutional Theory: Randy's lessons below are interesting ones, but I'm not so sure I agree with him. In any confirmation process, the Senators try to get a sense of what a nominee is likely to do if the Senate agrees to give that person the tremendous power of the office to which he or she has been nominated. Constitutional theory is clearly relevant, but it's only part of the picture. Few judges are constitutional theorists, and those that try to be usually aren't very consistent or very good at it. Given that, I can see why the nominations debate would go beyond questions of constitutional method.
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Three Lessons for the Great Debate About to Begin: I recall very well the debates over the nominations of Robert Bork and Clarence Thomas to the Supreme Court. Both featured the most elevated public discourse over constitutional interpretation in my lifetime. Of course, both nominations were also marred by ugly personal attacks and false charges. For the upcoming nomination, we can expect both types of discourse. To that end, some may wish to review the debate I recently had with Cass Sunstein over at LegalAffairs.org. Cass and others such as Jeff Rosen have promoted the trope "Constitution in Exile" to describe those who favor enforcing the whole Constitution according to its original meaning. The alternative is to enforce only portions of the text according to whatever meaning yields "good" results.

It is useful to review this debate to see the difference in our approaches so one can better track and participate constructively in the forthcoming debate. My approach focuses on restoring portions of the "lost" Constitution that the Courts have long ignored--such as the Commerce Clause, the Necessary and Proper Clause, the Second Amendment, the "public use" portion of the Takings Clause, the Ninth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment. Cass consistently focused, not on the text of the Constitution, but on a list of results--either good results he favored preserving or bad results he contended that the fictitious "Constitution in Exile movement" wanted to achieve.

LESSON ONE: Watch the switch from a list of ignored textual provision to good and bad results.

This debate should not allowed to be turned into a debate over results. It should instead be a debate over constitutional method and the restoration of portions of the text that have long been discarded. This includes challenges to judicial conservatives who, like Justice Scalia, would continue to ignore the Ninth Amendment or Privileges or Immunities Clause because they fail to meet his standard for a "rule of law." Ignoring portions of the Constitution because they fail to conform to your theory of the "rule of law" is no different than ignoring portions that fail to conform to your theory of "justice."

LESSON TWO: Watch the switch from meaningful scrutiny to extremely deferential "rational basis" scrutiny, as a means of continuing to ignore portions of the text.

And by "ignoring" I include adopting an extremely deferential "rational basis" approach that yields all discretion to the legislative branches, as Justice Stevens explicitly and Justice Scalia implicitly recently did in the medical cannabis case when applying the Necessary and Proper Clause. This is a game that both "liberals" and "conservatives" can play. It is not "activist" for judges to demand of legislatures that they have a real and justified reason for restricting the liberties of the people--something more than mere assertion. Whenever legislatures need not meet any burden of justification whatsoever--e.g. Justice Stevens' approach in both Raich and Kelo--the scheme of federalism and limited enumerated powers is undermined.

LESSON THREE: Watch for an appeal to "precedent" to attack a nominee who may favor reviving the original meaning of portions of the text--e.g. the "public use" portion of the Takings Clause--that have been ignored for far too long.

Another technique for ignoring the text is to elevate the importance of past nonoriginalist judicial decisions in the name of "precedent." The "liberal" side of the Court has never accepted the "precedents" of Lopez and Morrison. Nor could "liberal" or "moderate" justice be counted on to accept any precedent that does not accord with the results that drive their approaches. For the same reason, a "conservative" (or libertarian) Justice should give little weight to nonoriginalist precedent that justifies ignoring portions of the text. It is the Constitution to which a judge (and Senator) takes an oath, not past decisions by the Supreme Court. The issue of precedent is very complicated, however. I explain some of these complications here.

On the other hand, you may expect nominees to deflect potential criticisms by embracing precedent to avoid the charge that they would revive now ignored portions of the text. Given that many originalists do favor adhering to precedent, this defense may be entirely sincere. To the extent, however, that a nominees is willing to elevate the past opinions of the Court over the text of the Constitution where the two clearly conflict, he or she would be abandoning anything like an originalist approach to interpretation. This would not be a good sign for the future. Inevitably selective reliance on precedent is one of the most common methods of avoiding the text of the Constitution when the text is an obstacle to achieving particular results--my definition of "judicial activism."

Let me offer as my hope for this forthcoming debate, the penultimate paragraph of my exchange with Cass:
Over the course of this week, Legal Affairs readers have been provided a preview of a great debate that lies ahead. As my final contribution to our discussion, let me express my hopes and aspirations for that debate. I hope that the political process upon which we rely to select Supreme Court Justices will not be thwarted by name calling, conspiracy mongering, or false claims about bad motives on either side. I hope that judicial nominees will not be presented with a laundry list of results intended to serve as a litmus test for ideological acceptability. I hope they will be asked instead about their judicial philosophy and their commitment to the rule of law. I hope that those who participate in this great debate will frame their arguments in language that clarifies the issues rather than obscures them. And I most fervently hope that the debate will not be conducted in a topsy-turvy newspeak that charges originalists with being insufficiently conservative and equates adhering to the rule of law supplied by the Constitution of the United States with activism or radicalism!
You can read the entire debate here.
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Justice Volokh:

A VC reader sends in his recommendation for the Supreme Court vacancy: Eugene Volokh.

Supreme Court Justice Eugene Volokh. It just sounds right.

"In a scathing dissent, Justice Volokh today defended the right of individuals to . . ."

"Justice Volokh, known for his strong belief in individual rights, today authored a ruling . . ."

Meanwhile, Mickey Kaus, Ramesh Ponnuru, and Glenn Reynolds all like the idea of another academic, Robert Nagel. For Nagel's thoughts on the just-completed Supreme Court term, check out the video of this AEI event.

"Kennedy Slams Unnamed Supreme Court Nominee": From Scrappleface, naturally. Link via Instapundit.
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Friday, July 1, 2005

Discussing Justice O'Connor: I discuss Justice O'Connor's resignation on WBUR's On Point radio show, which airs in Boston (and elsewhere) at 7:00pm ET. Here are the guests:

· Warren Ritchie, covers the Supreme Court for the Christian Science Monitor
· Randy Barnett, law professor at Boston University. In 2004 he argued the medical marijuana case before the high court
· Jeffrey Rosen, Professor of Law at George Washington University, legal affairs editor of The New Republic
· Ronnell Anderson Jones, from 2003-2004 clerked for Justice O'Connor, visiting faculty fellow at the James E. Rogers College of Law at the University of Arizona
· Patrick Schiltz, founding dean and professor at the University of St. Thomas Law School, clerked for Supreme Court Justice Antonin Scalia.

Details about the show (and eventually a link to an archive recording) are here. You can listen to it live (now) here.
Unfortunately CSPAN did not cover the ACS event at the National Press Club on Thursday. But it was lots of fun to participate.
Takeover Rumors in the Blawgosphere: Vic Fleischer has the amusing scoop at A Taxing Blog.
Pfizer and Kelo:

Roy Poses has an interesting post on the Health Care Renewal blog, where he looks at some of of the interrelationships between the parties and some of the financial details in the case.

[In my "Economics of Kelo" post, I simplified the actual relationship between Pfizer and the City of New London and the New London Development Corporation in order to try to get to the larger question of the role of "public use" in the case. I don't think it changes the analysis of the basic constitutional question and what the Court decided, which is why I used "Pfizer" as a shorthand reference to the private parties in the case in my post. Those looking for a more detailed summary of the facts can find it in Dr. Poses's post.]

Hearsay Exception Explained:

For those, like me, who never really got the hearsay rule and its exceptions, you have two choices. First, you can do like me and practice in bankruptcy court, which has somewhat loose de facto evidence rules.

Second, you can learn everything you need to know from this video enactment of the hearsay exception acted out by Lego characters (yes, Lego characters) with a rocking musical accompaniment.

HT to Sean Sirrine, who has the story behind the video as well.

Update:

Just to clarify, my comment that the video has "everything you need to know" was in jest--I realize that there are many more exceptions to the hearsay rule.

I'd be out of a job quick if we could replace all the law professors with Lego characters...

P.S.: A reader reminded me that the tune for the video is from the Schoolhouse Rock video "Interjection!"--I knew I recognized it, but couldn't place it precisely.

9th Circuit Split?

Sean Sirrine has a very thorough roundup of the various legislative proposals related to a Ninth Circuit split.

ROTC At Dartmouth:

Students say yes, some faculty say no, Arabic language department says get out of here. The story here.

Confirmation Fight:

Reading the tea leaves, it seems clear that there will be a brutal confirmation battle regardless of who is nominated. At this point, a confirmation battle will be supply-side driven--the interest groups have the money already, and they are going to spend it one way or the other. And then try to raise some more. And the politicians are going to try to raise money by pandering to these same players. No one is going to roll over on either side just because a particular nominee is thought to be "moderate" rather than "conservative".

The credentials or qualifications of the particular nominee under consideration will be largely beside the point.

So, the same nasty fight is going to occur regardless of who is nominated, and be just as nasty and expensive, regardless of who is nominated and the particular perception of whether he or she is moderate or conservative. So, it seems to me, the Bush Administration would be smart to simply nominate the best person that they want, and not be tricked into thinking that they can somehow avoid a nasty confirmation battle by nominating someone with a more "moderate" perception.

So if there is going to be a fight (which there undoubtedly will be), they may as well at least make it someone worth fighting for.

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Want a Soundbite?

Justice Scalia described his jurisprudence as "The Rule of Law as the Law of Rules."

Justice O'Connor, a pragmatist, saw the work of the law as making law work.

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Retirement Blogging: Lost of interesting blogging about the retirement announcement of Justice O'Connor over at Bench Memos.
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Thoughts and Toasts for Undiminished Devotion on Independence Day:

During this weekend, take some time to remind yourself, and perhaps to teach some younger people, about the blessings of liberty in the United States of America. The Battle of Gettysburg took place this weekend in 1863, so it is certainly appropriate to remember the many heroes of that battle, including Winfield Scott Hancock, whose bravery may have saved the Union during Pickett's charge.

I've long supported reviving the custom of offering 13 patriotic toasts at Independence Day parties. This article collects some of the historic toasts; I've enabled comments so that people can supply some modern toasts. And of course practicing the responsible use of firearms is an excellent way to honor the anniversary of our revolutionary independence, all the better if you can instruct or introduce someone else to responsible gun use. You may also choose to read, or re-read, the words of our Founders. Teaching your children about the first two paragraphs of the Declaration of Independence will help them understand the meaning of the day, and the meaning of their nation.

A few days before Thomas Jefferson died on July 4, 1826--the fiftieth anniversary of the Declaration of Independence--he could see that the revolution he had helped to spark was burning throughout the world. He wrote:

"All eyes are opened, or opening, to the rights of man. The general spread of the light of science has already laid open to every view the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God. These are the grounds of hope for others. For ourselves, let the annual return of this day forever refresh our recollections of these rights, and an undiminished devotion to them…"

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Bubble Update:

When the chief executive of Toll Brothers, one of the nation's largest homebuilding companies says this:

"In the hot markets, I wouldn't be surprised to see a 20 percent decline," Toll said at the Reuters Real Estate Summit in New York. "You've got a price going from $1 million to $800,000, I don't have a problem with that." "I don't think you're going to have a pop, which means I don't think you've got a bubble," added the head of the luxury home builder at the summit held at Reuters U.S. headquarters in New York. "But I do think you're going to have a correction as the markets unnaturally overheat because of speculation."

It's time to run for the hills.

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It's Official: Justice Sandra Day O'Connor has announced that she is retiring. A few more or less serious thoughts, which I plan to add to throughout the morning:

  1. Oddly, Justice O'Connor's letter does not mention the all-important question: what is to happen to Sasha Volokh? Will he get picked up by another Justice? Will he come back to the Volokh Conspiracy? So far the Associated Press hasn't covered this angle yet.

  2. The mystery of the missing 4th SOC clerk is now explained; it was O'Connor herself who was retiring.

  3. The big question now is whether the Chief will announce soon as well. I'm not sure whether SOC's retirement makes the Chief's more or less likely — any thoughts?

  4. Interesting that after years of SOC retirement rumors, she retires after a Term in which most people were looking to another Justice to retire.

  5. When courts apply the "reasonable observer" test in Establishment Clause cases, will they now call up Justice O'Connor in Arizona to ask her what she thinks?

  6. My guess is that we'll have to wait to find out who the Administration will nominate to replace Justice O'Connor. I assume that the Administration's next move depends on whether SOC is the only Justice to retire.

  7. Supreme Court advocacy in the last decade has focused a great deal on trying to understand the mind of SOC, as she was the swing vote in many big cases. That learning has just become obsolete.

  8. Even if Justice O'Connor is gone, we may still hear her name in 1 First Street when lawyers accidentally call Justice Ginsburg "Justice O'Connor."

  9. O'Connor's retirement may shift the Court a lot less than people think. In the big ideological cases of the last Term, Justice Kennedy was the swing vote as often as (or maybe even more often than) Justice O'Connor. Let's assume for now that O'Connor is replaced by a consistently more conservative Justice; even if that's true, the left-of-center Justices presumably still have 4 very reliable votes and a good shot at picking up a 5th vote with Kennedy. Plus, new Justices are hard to predict, and it's often hard to tell whether a new Justice will vote consistently one way or another.

  10. We're likely to hear a lot about the future of Roe v. Wade in coming weeks and months. The common wisdom, assuming no shifts in votes from past cases, is that the 8 remaining Justices include 5 votes for Roe (RBG, SGB, DHS, JPS, AMK) and 3 against (AS, CT, WHR). On the constitutionality of partial-birth abortion bans, the common wisdom is that the 8 remaining Justices split 4 to 4, with Justice Kennedy switching as seen by his vote in Stenberg v. Carhart.

  11. My understanding from press reports is that O'Connor is staying on the Court until her replacement is confirmed. Bush gave some comments from the White House a few minutes ago, and my recollection is that he said he planned to nominate a replacement such that the replacement would be confirmed by the time of the new Term in the fall. Of course, that assumes a timely confirmation process, which may or may not happen.

  12. O'Connor's retirement is a gift to all the commentators who were trying to come up with profound thoughts about the just-completed Supreme Court Term. The Term was actually pretty boring in the end; while there were some interesting cases that offered the Court the opportunity to venture out in some new directions, the Court mostly ended up reaffirming the status quo. Now talking heads can ruminate about Justice O'Connor and her retirement rather than the cases the Court decided.

  13. According to Dana Bash, reporting at CNN, the White House found out about the possible retirement yesterday afternoon, when the Supreme Court Marshal's Office informed the White House Counsel that one of the Justices would be sending a letter to the White House today. The White House didn't know O'Connor was the Justice making the announcement until this morning.
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Prof. Natelson Can Teach ConLaw Again:

A review committee assigned to evaluate University of Montana law professor Robert Natelson's fitness to teach Constitutional Law has concluded that he is fully qualified for the job, reports The Missoulian.

As previously reported by Eugene, last year Professor Natelson charged his colleagues at the University of Montana law school with political discrimination. Among other things, Natelson alleged that he was denied the opportunity to teach constitutional law because of his conservative views. Natelson ran for governor and has been harshly critical of the Montana Supreme Court. When there was an opening in Constitutional Law, he sought to teach the course but was refused, despite being the most widely published member of the Montana law faculty on the subject. Instead, the Dean filled the slot on an ad hoc basis. After years of what he considered to be unfair treatment, Natelson filed a grievance with the University.

A hearing officer appointed by the University president sided for Natelson, finding the Dean wrongly denied him the opportunity to teach Constitutional Law, as Eugene noted here. The basis for the opinion was law school's arbitrary departure from its own traditional practice regarding class assignments. The hearing officer reached no conclusion as to whether Natelson's poor treatment was motivated by political or personal animus.

So Natelson got to teach Constitutional Law this year, but there was a catch. The hearing officer called for the appointment of an "evaluation committee" to review Natelson's teaching performance and recommend whether Natelson should be allowed to continue teaching Constitutional Law. As eventually constituted, the committee included two well-recognized constitutional law professors -- Robert Nagel of Colorado and James Weinstein of Arizona State -- and a Montana attorney with whom Natelson has tussled in the past.

According to the Missoulian, the evaluation committee voted 2-1 in favor of Natelson's keeping the Constitutional Law post. Siding with Natelson, the two professors on the committee wrote:

After due consideration of all the material presented to us, and with particular regard to Professor Natelson's performance in teaching Constitutional Law this semester, we conclude that Professor Natelson is both competent and fully qualified to continue to teach Constitutional Law. In light of of this finding, we recommend that he be assigned the Constitutional Law course.
They further added:
We are able to make this judgment with confidence. It is based on an evaluation that in its scope and thoroughness might well be unprecedented for any decision about a teaching assignment in the history of the American legal academy.
The private attorney recommended that the law school hold a national search to fill the position, and invite Professor Natelson to apply.

As for Natelson, he is happy with the decision, and glad this episode appears to be over. Reports the Missoulian:

Natelson said he is relieved and grateful the issue has been resolved.

"I will do everything I can to be worthy of the committee's high opinion of me by giving students the very best education in constitutional law that I can," Natelson said. "I am thankful at the outcome of this and I think it creates a healthy precedent - that people within the university system with dissenting views will be and have to be treated fairly."

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Use of Social Science in Judging:

On the Comments Board to my "Economics of Kelo" post (and let me echo David and others on how much I have learned from reading those comments), one participant raised an excellent question, that I think is worthy of a longer response (sorry to write so long, which I have been doing a lot lately for some reason).

Bill writes on the Comment Board:

Todd's economic analysis here is great. [TZ--I think this part of the post is especially brilliant.] But I am reminded of his previous reluctance to embrace social science in considering whether Ten Commandment displays or litigation about them is more divisive. [I wrote a long post under his original one there.]

Todd: You call Breyer's analysis "second rate". Is there any other relevant difference (besides quality of analysis) between your Kelo analysis and the social scientific inquiry into divisiveness that you forswore? I can think of two or three that I mentioned in the other post. But none of them really seem decisive to me.

Perhaps I'm just deluding myself, but I think these situations are distinguishable. So let me take a crack at explaining why I think so, and when and what type/quality of social science evidence may be relevant. Note that it is a seperate question whether this sort of evidence should ever be relevant to constitutional decision-making, a different question that arises in many cases (such as the reliance on social science evidence in Brown v. Board of Education and whether the reliance on the social science evidence there was appropriate and improved the Court's decision and decision-making).

In my "Economics of Kelo" post, I am trying to argue that economics can help us to understand why the "public use" clause is written into the Fifth Amendment and should be enforced. In the "divisiveness" context (here and here), recall, my argument is that the Court should either skip the divisiveness inquiry or actually use real social science to determine whether or not religious displays are truly divisive (just like they rely on empirical evidence in reviewing dormant commerce clause cases, as in the wine cases).

The problem in the religion context, I think, is that Breyer is doing neither--he is postulating that religious displays are "divisive" and that some case rulings will reduce this divisiveness (but not all)--but the Court has no empirical evidence to support these claims. Certainly, such empirical evidence could be produced through surveys and studies, it just hasn't (or at least Breyer doesn't rely on it). Instead, he is relying on his own gut assumptions about what is or is not divisive, rather than real social science research.

Given the lack of any good social science evidence on this point, I believe that the Court should rely on principle, rather than Breyer's personal speculations, formed by a relatively cloistered and narrow social and intellectual life unrepresentative of the overwhelming majority of Americans. If valid social science evidence were available, and it tended to a determinate answer on the question of divisiveness (one way or the other), there would still be the more fundamental question as to whether this sort of social science evidence should be relevant to the decision (a question, of course, that is relevant to all "Brandeis brief"-type evidence). The only polling data I have seen suggests that these displays are not that divisive. Certainly I wouldn't rely on this one weak poll to conclude that the Ten Commandments are not divisive, but there is also no strong evidence to back up Breyer's argument that they are divisive (or to clarify, there may be such evidence out there, but he doesn't rely on any in his decision). So until such evidence is produced one way or the other, it is largely just my hunch against his. And, my own personal hunch would be that if such research were produced, it wouldn't tend to support the distinctions that the Court is drawing. But, of course, my personal hunches don't seem any more valid or relevant to Supreme Court decision-making than Justice Breyer's personal hunches.

So, in this light, it would certainly be valid to reject my Kelo analysis on the ground that the economic analysis that I put forth is incorrect or incomplete, in the same spirit as my criticism of Breyer's gut-feeling estimates of divisiveness in the religion context.

In my defense, however, I would offer that using economic analysis to support the general proposition that the Court should consider the "public use" clause in a case like Kelo is different from saying that the Court should use this evidence to drive results in any given case, as Breyer seems to be suggesting. I am not saying that the economic analysis can be used to balance subjective value with holdout problems in any given case; rather, I am supporting the more general proposition that there are very good reasons why we should take seriously the "public use" requirement in the Constitution.

To illustrate the distinction, consider freedom of speech. There is a difference between saying that the concept of a "free marketplace in ideas" provides a general presumption in favor of protecting freedom of speech versus saying that in any given case a particular idea is a valid contribution to the marketplace of ideas. I would argue that my economic analysis is more like the former (explaining the principle, but not the outcome). And that Breyer's analysis in the Ten Commandments cases is more like the latter (outcome-dterminative), only badly done. And that the Supreme Court's analysis in the context of facially-discriminatory bans on interstate commerce (such as in Granholm and older cases such as Maine v. Taylor) is in the second category (outcome-determinative), but I think generally well done.

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O'Connor Retirement Rumor: Can anyone confirm this? Or is it bogus? (My apologies for calling attention to this if it proves false -- I figure our readers are among those who can say whether it is the real deal or not.)
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Even Bernie Sanders Doesn't Like Kelo:

Even Congress's "lone self-described socialist, Rep. Bernard Sanders of Vermont" doesn't like Kelo:

I disagree with the Supreme Court's decision in Kelo v. New London," Mr. Sanders said. "I believe that the result of this decision will be that working families and poor people will see their property turned over to corporate interests and wealthy developers."

Rep. Maxine Waters, "California Democrat and member of the Congressional Black Caucus, said she is 'outraged' by the decision. 'It's the most un-American thing that can be done.'"

And when is the last time those two agreed with Tom DeLay?

"The Supreme Court voted last week to undo private property rights and to empower governments to kick people out of their homes and give them to someone else because they feel like it," said House Majority Leader Tom DeLay, Texas Republican. "No court that denies property rights will long respect and recognize other basic human rights."

The Washington Post describes the legislation, co-sponsored by conservative James Sensenbrenner and liberal John Conyers in its story, curiously titled "House Votes To Undercut High Court On Property"

The House measure, which passed 231 to 189, would deny federal funds to any city or state project that used eminent domain to force people to sell their property to make way for a profit-making project such as a hotel or mall. Historically, eminent domain has been used mainly for public purposes such as highways or airports.

The measure, an amendment to an appropriations bill, would apply to funds administered by the departments of Transportation, Treasury, and Housing and Urban Development. House Majority Leader Tom DeLay (R-Tex.) and Majority Whip Roy Blunt (R-Mo.) said they will push for a more inclusive measure that would apply to all federal funds.

A fact sheet said under the bill the locality or state would "lose any federal funds that would contribute in any way to the project the property would be taken for."

Nancy Pelosi, by contrast, agrees with the decision and opposes the legislation:

House Minority Leader Nancy Pelosi, California Democrat, said she "would oppose any legislation that says that we would withhold funds for the enforcement of any decision of the Supreme Court, no matter how opposed I am to that decision." She then added: "And I'm not saying that I'm opposed to this decision." Arguing that Congress has no business interfering with the ruling unless it wants to amend the Constitution, Mrs. Pelosi said: "This is almost as if God has spoken."

So how about a constitutional amendment that makes it clear as to the limits of the emininent domain power along these lines--"nor shall private property be taken for public use without just compensation."

What amendment do we need--change the type font to italicize the words "public use"?

[In light of the Supreme Court's recent religion cases, the irony inherent in Congresswoman Pelosi's characterization of the Supreme Court's ruling in Kelo as "almost as if God has spoken" is just too easy, so I'll just let the readers supply their own ironic commentary on that one.]

Update:

An even curiouser headline of the same debate from the New York Times:

Republican Lawmakers Fire Back at Judiciary

Stepping up their assault on the federal judiciary, Congressional Republicans announced efforts on Thursday directed at overturning two recent Supreme Court decisions, one that allowed government to claim private property for economic development and another that stripped Kentucky courthouses of the Ten Commandments.

In contrast to the headline, the story notes in paragraph 6:

Illustrating the broad discontent in the House over the court ruling on property rights, House members voted 365 to 33 late Thursday night in support of a resolution expressing "grave disapproval" at the court decision.

It does not note this particular item from the Washington Post story, which I forgot to include in my original post:

Sen. John Cornyn (R-Tex.) introduced a similar measure and immediately drew a Democratic co-sponsor, Sen. Bill Nelson (Fla.), as well as Sen. Rick Santorum (R-Pa.), who is number three in his party's leadership. The House bill is sponsored by Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.). Its Democratic co-sponsors include Reps. John Conyers Jr. (Mich.), Maxine Waters (Calif.) and Peter A. DeFazio (Ore.).

And yet the New York Times summary of all of this bipartisan activity is "Republican Lawmakers Fire Back at Judiciary" and that Republicans are "Stepping up their assault on the federal judiciary"?

At the least the Post headline, while implying editorial disapproval of Congress, wasn't as heavy-handed as the Times in turning it into a partisan attack (in fact, to reinforce the implicit message, the only picture in the on-line version of the Times article pictures only Republican lawmakers).

And some wonder why I don't generally read that Times any more? For more reasons, see here.

14 Comments

Thursday, June 30, 2005

Kudos to Our Readers:

I've mostly stuck to my announced blogging hiatus, but I'm still reading my co-bloggers posts, and also usually the comments to them. I'm amazed by the overall quality and thoughtfulness of the comments. It makes me feel good to know that I blog for such readers. Kudos!

Give Me That Old-Time Religion:

In one of the Ten Commandments cases, Van Orden v. Texas, Chief Justice Rehnquist writes: "Our cases, Januslike, point in two directions in applying the Establishment Clause."

I like the religious reference in a case about religious references, but it made me wonder more broadly: What other gods can one analogize to -- preferably humorously -- in a description of the Court's caselaw, whether on the Establishment Clause or any other legal provision? For consistency of tone, I suggest that all submissions start with "Our cases, ___like, . . . ." Think of them as a sort of law-classics-geek-Tom-Swifties.

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So What's the Law That Judges and Government Officials Should Follow?

In the wake of the Ten Commandments cases, how should an honest lower court judge -- or government official -- apply to decide whether some government speech that has a religious flavor violates (or would violate) the Establishment Clause?

(1) Apply the endorsement test, on the theory that the majority in Allegheny v. ACLU endorsed it, and that it therefore represents the most recent majority view on the subject.

(2) Determine whether the government speech is likely to prove religiously divisive, as Justice Breyer's controlling opinion in Van Orden v. Texas suggests -- or, if the issue is whether to remove a display, whether the removal of the display is likely to prove more or less divisive than retaining the display.

(3) Apply "legal judgment," for which there can be "no test-related substitute," also following Justice Breyer.

(4) Something else.

I'm genuinely curious what the legal answer should be here. After all, many government officials (maybe not all, but many) genuinely want to follow the law. They may even realize that they can get sued (or, if they're judges, that their decisions will be appealed) no matter what they do, and that they can't be sure how the case will come out. But they'd like to do what the law requires. What, though, is the law now, following the splintered opinion in Van Orden?

I'd love to see some serious responses (rather than jokes, rants, or fulminations). Also, let's avoid in the comments to this post express criticisms of the Supreme Court's decision or its broader caselaw: Rather, let's see what the caselaw requires, and then each of us can use that as a means of evaluating that caselaw.

13 Comments
Pop Culture Trend Alert:

My friend and fellow lawprof Rick Garnett, who teaches at Notre Dame, writes:

Here's an e-mail I got from a student of mine today . . .

I picked my 20 year old sister up from the airport today and she was wearing a fitted ringer t-shirt with a quotation from Justice Thomas' dissenting opinion in Kelo on the front. When I asked her where she got it, she said from "urban outfitters." I thought you . . . would appreciate knowing that Justice Thomas is officially "hip."

19 Comments
Quick Response to Todd on Article Length: Just to clarify in response to Todd's comment below on law review article lengths, I don't favor replacing the old standard for article length with a new hard rule. I think the old norm had gotten out of whack: Absent any length guidelines from journals, authors were gradually moving to a world in which longer and longer articles were the norm. I see the new policy as a standard, not a hard rule; the key insight driving the change is that most articles can be a lot shorter than they are. I agree with Todd that some articles need to be longer, especially in more technical fields, and I hope and expect that law review editors recognize that. Put another way, I see the goal of the reform as reorienting the standards, not replacing a standard with a rule.
2 Comments
Shorter Law Review Articles:

Orin says it is generally thought to be good. I'm not so sure (I honestly haven't made up my mind). In general, I think it is probably a good thing, but I think there may be substantial unrecognized costs.

It is true that articles are much shorter in other disciplines. I suspect the main reason for that is that most scholarship is in the nature of what Kuhn calls "normal science," i.e., science that takes place within a commonly-accepted paradigm. As such, most research is conducted within a relatively closed set of assumptions and techniques, which, in general, need not be repeated from one article to another. The problem with law review article length became that too much length was taken with rehashing the "normal science" portion of the article, primarily (in my view) because of the need to educate the law students reading the article, to whom there is no normal science because they haven't been immersed in the literature of a given field. So to the extent that most law review articles are in the nature of "normal science," shorter is better, following the convention of other fields.

In addition--and this differs from law reviews--other fields seem to have constraints on the number of journals in a field, and hence, on the number of slots for articles. Shorter articles permit each journal to publish more articles in each issue, which may be useful for capacity-constrained journals and fields. Law reviews seem to be under no constraint (in fact, it may be that there are more slots available in journals than there are articles truly worthy of being published).

The problem, however, are for those articles that are outside the established paradigm, and thus are not in the nature of normal science. Those articles may need to be longer, in order to educate the editors and the reader as to why a new paradigm is being proposed.

I have personally felt this pinch--because much of my work on consumer bankruptcy and consumer credit draws on economic concepts and empirical research that has been largely ignored by the legal academy, it does in fact take a fair amount of set-up. The economic approach to consumer bankruptcy, as one might expect, is well-established in the economic study of consumer credit--and much of the work there is now empirical, meaning shorter articles in the normal science mode.

But law professors have gone off in a very different direction which has little to with economic analysis. As a result, although the dominant paradigm in economics, it is not in law. So the short-cuts associated with ordinary science--and shorter articles--are in fact an obstacle for much of my work.

So I'm still on the fence as to whether adopting a rule requiring shorter articles will turn out to be an improvement over the old standard that evaluated articles on a case-by-case to determine whether they were the "correct" length.

8 Comments
The Economics of Kelo:

The basic economic problem of eminent domain is the trade-off between strategic holdouts on one hand and sincere subjective value on the other. The nature of a "property" right is that it gives a holdout power to anyone who holds it--I don't have to sell you my car or my autographed picture of Franco Harris's Immaculate Reception. And you can't have the government take them, even if you promise to pay compensation, but can acquire them only if I consent to what you give me in exchange. In so doing, we protect my subjective value in the good--i.e., the value that I put on Franco (especially because my wife gave me the picture as a Tenth Anniversay gift) is much higher than the market value of my Franco picture. So, in order to protect my subjective value, I am given a property right which permits to refuse to sell it--even for "fair market value." I have a holdout power, but it is not a problem, because we assume that the reason I refuse to sell is because I place a higher value on Franco than the market price.

This "holdout" power potentially becomes a problem in a case such as Kelo, where the buyer needs to assemble several pieces of land to build a building. Any individual may decide to hold out to try to extract a larger share of the surplus associated with the higher economic value from the transaction.

The problem is that in theory, in any given situation when someone refuses to sell we can't tell whether it is because of strategic holdout or subjective value. If we knew this, then we could get rid of market transactions in general, and move to a system of central planning where the planning czar just assigned various goods to their highest valued user. But that obviously won't work. But there are better, and worse, ways of dealing with this problem. The overall facts of Kelo illustrate one of the worse ways of dealing with it, and why we need to have a real "public use" doctrine that doesn't permit taking from A to give to B.

Suppose I make you an offer for the "fair market value" of your house and you refuse. So I go to the City Council and tell them that I will make an enforceable promise to pay one dollar more in taxes than you pay on your house if they would just condemn it and give it to me. And if they evicted you, they wouldn't pay your moving expenses or disruption expenses associated with finding a new place to live. Now imagine you grew up in the house, lived there for sixty years, raised your kids there and hoped to die there.

Under those facts, would your unwillingness to accept my offer evidence that you are just being a strategic holdout? Certainly it seems plausible in that situation that the refusal of you to sell to me is efficient, in that you have high subjective value. So if I get the house and only have to pay fair market value through an eminent domaian proceeding, that result is economically inefficient because the property is not held by the highest-valued user. But in addition, we know that the strategic holdout threat isn't meaningful here. Why? Because at the time I refuse to sell, I have no strategic holdout power--if I don't sell, you can go down the street and buy another house. So we can infer from my behavior that my refusal to sell is the result of subjective value, not strategic holdout.

And all of this analysis excludes that the wealth loss here is not just the possibility of an efficiency loss by ignoring subjective value and the undercompensation problem (the so-called "Harberger Triangle" dead-weight loss), but also the Tullock Box of the rent-seeking expenses you and I both burn up trying to effect this political transfer rather than a voluntary market transfer (the real costs of rent-seeking, of course). When we replace a positive-sum voluntary market exchange with a political exchange, both parties have an incentive to "lawyer-up" and engage in various rent-seeking expenditures to try to get the result they desire. So this is the primary reason why the "public use" requirement is (or should be) a gatekeeper to make sure that I am not taking your house just because I want to end-run a consensual market exchange that I might find inconvenient or too expensive. None of the other restrictions on takings perform this function of properly channeling private transactions through the market where they belong, and where subjective value can be protected (and thus efficiency can be protected as well). Moreover, this is a threat that is unique to the private takings situation in Kelo, because with respect to a traditional public purpose taking, the undercompensation problem remains, but the strategic temptation to end-run the market to try to get the property for less than the seller's subjective value will not, because governement actors don't benefit as directly as Pfizer does.

Second, focusing on the holdout problem in the Kelo context is to focus on the wrong issue. The scenario here is different from when a government wants to build a school or post office, traditional public use purposes. Schools and post offices have to go in a particular geographic area (that's why they are being built), and thus strategic bargaining may be plausible because it is similar to a bilateral monopoly situation. The small group of landowners in the relevant area can act strategically and try to extract a high price for its sale.

In Kelo, however, there is no obvious holdout power because Pfizer could put its building in any city in America. So its not like a neighborhood school, road, or post office. In Kelo, the holdout power is created artificially by the city's desire to give Pfizer a sweetheart deal to bring it to town.

So ex ante, there is no viable holdout power in this situation because there are an infinite number of close substitute sites for the building. The building is going to be built somewhere, the only question is what city--New London, Hartford, Bridgeport, Boston, New York, Chicago, etc. The artificial scarcity that says the building has to be built in New London was created by the city's other subsidies to attract Pfizer to town (the obscenely low rent, etc.).

So if one is truly concerned about the holdout power problem, then the correct solution is to require the city to eliminate the artificial scarcity that "requires" the building to be built in New London rather than some other city, the same way that a new school would have to be built in New London. If we allow both the subsidies and the Taking for the benefit of the private party, we are allowing the distribution tail of what city the Pfizer headquarters will be built to wag the efficiency dog of whether the homeowner is holding out versus having subjective value. Instead, we want to have the parties bargain ex ante before they finally select the city--i.e., choose the city and the plot of land at the same time--not bargain ex post after the city is selected. Forcing an ex ante bargain when there are still many substitutes for the proposed site would eliminate the holdout problem and allow us to determine the extent of parties' subjective value, because the negotiations would be conducted against the backdrop of a competitive market, rather than a bilateral monopoly. The bilateral monopoly is thrust upon the city in the road or post office scenario; it is freely-chosen in the Kelo situation.

Instead, the ruling in Kelo enables the worst possible economic outcome--it permits cities to create artificial scarcity just to get a larger piece of a stable-sized pie (getting Pfizer to New London rather than Hartford), while then permitting cities on the back end to take land from private landowners who may or may not be losing subjective value and being undercompensated in the process.

And the incentive effect of Kelo is obvious--it now enables corporations to extract both subsidies and takings as the price for locating in city A rather than city B.

To further understand the second point, recall the Alaska Packers case from first-year Contracts (any of my former Contracts students out there reading this?). In that case, the shipowner and the crew bargained for wages while on the dock in San Francisco, then when the crew got to Alaska they demanded to renegotiate. The renegotiation may have been either sincere or strategic, its not clear. What we do know, however, was that the crew's bluff was real, because the captain could not turn the boat back around and cruise back to San Francisco to get a new crew without losing the seasonal catch. The Court refused to enforce the modified contract.

This is the correct answer, even though we can't tell for sure whether the subsequent renegotiation demand was sincere or strategic. The reason it is correct is because we want to make the fishermen and the shipowner in Alaska Packers have the right incentives to strike their bargain while they are all still on the dock in San Francisco. At that time there are still close market substitutes, not when they are on the boat to Alaska and it is now a bilateral monopoly situation. So we want to have a rule that enforce the first deal, not the second.

Same analysis applies here--the private taking only comes about because of the contrived artificial scarcity created by the ridiculous government subsidies to lure Pfizer to New London rather than some other city. There is no efficiency gain from providing public goods (as with a road, school, or post office). So rather than rewarding the city for creating an artificial scarcity, which then makes it vulnerable to a hold-out power, it would make more sense to deny them the right to condemn ex post, thereby encouraging more efficient arms'-length bargaining ex ante.

23 Comments
The 5-4 Cases: Tom Goldstein takes a look.

Related Posts (on one page):

  1. The 5-4 Cases:
  2. October Term 2004 Statistics:
2 Comments
Law Review Article Length: What Changed? Berkeley law prof Bob Berring has a short piece in the latest issue of The Green Bag wondering about why the elite law reviews decided to adopt their article length policies that call for shorter articles.

  Berring applauds the change -- as an aside, I should add that most legal academics seem to agree, with the most notable exception being the smallish group of professors who like to write 100+ page drafts -- and focuses his attention on the timing of the policy switch. Academics have been criticizing law reviews for years, Berring notes. What changed? In Berring's words, "So what is up?" Berring speculates that the reason might be competition from online databases such as SSRN, or perhaps the influence of the Green Bag itself.

  This is an interesting question, at least to us law profs. The policy change was a pretty bold move, and anecdotal evidence suggests that it has led to a significant shift in the scholarly designs of many law professors. In response to the policy change, most lawprofs are trying to write significantly shorter articles. Berring is asking a good question: why now?
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Jonathan Adler on Takings,

in National Review Online.

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Kelo and Regulatory Takings:

A post by Mark Tushnet on a lawprofs' discussion list led me to wonder how the Kelo dissents' theory would deal with regulatory takings.

Two background items: First, under the Takings Clause, there are two kinds of takings, (1) "physical takings" in which the title to the property is actually taken, and (2) "regulatory takings," in which the owner keeps the formal title but loses the right to use the property in certain ways, the right to exclude people, the right to sell the property, the right to leave it in a will, or what have you. Generally speaking it takes a lot of interference with the owner's rights to make regulation qualify as a "regulatory taking" (at least outside the special context of regulations that require landowners to let people onto their property, which are on the way to being physical takings, and which I will set aside for purposes of this post). Still, the Court has held that, for instance, banning virtually all development on a parcel, and thus rendering its value nearly nil, would qualify as a taking even if the owner still owns the parcel. See Lucas v. South Carolina Coastal Council (1992).

Conservatives are generally bigger fans of the regulatory takings doctrine than are liberals; Lucas, for instance, was written by Scalia, and joined by Rehnquist, O'Connor, Kennedy, and Thomas; libertarians tend to like it, too. Some liberals believe that regulatory takings should almost never be found, or even that the doctrine shouldn't exist, and that no regulation short of taking of title (or possibly interference with the right to exclude) should be considered a "taking."

Second, the debate in Kelo can be seen as pitting two different interpretations of "public use" in "nor shall private property be taken for public use, without just compensation": (1) "Public use" means "continuous public ownership or access," for instance if the government keeps the property or sells it to a common carrier (and access simply means the ability to go on the property, as for instance when the government takes land and sells it to a private railroad, but the railroad is required to let the public ride). (2) "Public use" means "public benefit," which may be derived by the government's selling it to a private developer whose development will (the government thinks) help the public.

So here's the question: Which reading of "public use" is most consistent with the generally conservative-libertarian notion that regulation can become a "regulatory taking"? When regulations deny you all right to use your land, for instance, and you claim that the government has "taken your property" -- in the sense of taken your right to exploit the property, which is part of your proprty rights -- "for public use," which meaning of "public use" would you be using?

It seems to me that the answer is not "public ownership or access." The government, after all, isn't taking the property so that the public can own it or access it. Nor is it taking it so that some private third parties can own it or access it. The only person who owns it or can access it is still you. Under the "continuous ownership or access" model, the regulation is neither a taking for public use nor a taking for private use. It sounds like it's not a taking at all, and you're thus entitled to no compensation.

But the "public benefit" model fits regulatory takings well. If the government stops you from developing your parcel in order to serve public environmental or esthetic goals, then it's taking your right to exploit the property in order to provide a public benefit, and thus you're entitled to compensation. Lucas in fact took this very view: Such regulations should be seen as takings because they "carry with them a heightened risk that private property is being pressed into some form of public service" (emphasis added).

So it seems to me that if the regulatory takings theory is sound, and regulations that make land nearly worthless should be treated as similar to physical takings, "public use" in the Takings Clause needs to be read as "public benefit." The question then becomes: Is it proper to read "public use" as "public benefit" for one kind of takings, and "continuous public ownership or access" for another?

Perhaps the answer is yes: Maybe the regulatory takings theory isn't really a textual interpretation of the Takings Clause, but rather a necessary backstop developed in order to avoid end-runs around the Clause; since its role is functional rather than textual, then some of the textual limitations on the Clause may be dispensed with. Or perhaps the answer is that the critics of regulatory takings doctrine (mostly liberal, I think) are right, and regulation should never be seen as a taking (again, perhaps unless it interferes with the right to exclude the public), even if it strips the owner of nearly all the value of his land.

Or perhaps there's some other explanation still. But it seems to me that if one does support the regulatory takings doctrine as part of the broader takings doctrine, and one thinks that it should be read consistently with the text of the clause -- which is to say that the text of the clause should be read consistently for regulatory takings and possessory takings -- then it seems to me that the Kelo majority's "public benefit" model is stronger than the dissents' "continuous public ownership or access" model.

16 Comments
Zimbabwe Tyranny Confiscates Guns:

The ZWNews website reports that the Mugabe dictatorship has ordered a new round of gun confiscation:

Police at the weekend said they were revoking licences for all automatic rifles and some types of pistols and said civilians owning such weapons had until today to surrender them....

But sources at police headquarters in Harare said the move was just precautionary to ensure such weapons could not be used by civilians should tension gripping Zimbabwe in the wake of the government’s clean-up exercise erupt into public violence. "The ban is targeted at all automatic weapons which the government fears could pose a security threat in the country should the civil strife in Zimbabwe turn violent," said a source, who did not want to be named for fear of victimisation. This is not the first time that the government has cancelled firearm licences. At the peak of its chaotic and often violent farm seizure programme in 2000, the government issued a decree compelling civilians to surrender their guns. The move was targeted at white commercial farmers who at that time held a number of assault guns for self-protection. Zimbabwe’s security forces have been on high alert since the government launched a "clean-up" campaign last month that has left close to a million people without shelter after their shanty homes were demolished.

As I detailed in a 2001 article, Zimbabwe's dictatorship has a long practice of using gun controls, many of which were inherited from British colonial rule, to ensure that victims of its barbaric abuses of human rights are unable to resist. The International Association of Genocide Scholars, in a June 7 statement, warned that the Mugabe government was again on the path to mass murder.

Perhaps the most effective foreign aid which should be sent to the people of Zimbabwe would be millions of rifles, so that the people would no longer be defenseless against the depradations of one of the most evil governments in all of African history.

22 Comments
Congratulations to Peter Edelman:

Recipient of the William J. Brennan Award from the DC Bar. The honor is presented biannually to a DC Bar member in recognition of "outstanding work toward furthering the public interest and equal justice."

More on Boggs Ethics Complaint:

Jonathan Adler has more.

Related Posts (on one page):

  1. More on Boggs Ethics Complaint:
  2. "Corporate Funded":
Time To Comply With Court Order in Plame Case: News story here. Hat tip: Howard.
October Term 2004 Statistics: Tom Goldstein has posted several .pdfs containing statistics about the voting alignments in the recently completed Supreme Court Term. (This used to be a job for the Harvard Law Review's annual Supreme Court issue, but thanks to G&H's summer associates and the blogosphere more generally, such stats will be old news by the time the issue comes out in the coming winter.) Some particularly notable findings:
The Court’s conservative majority (WHR, SOC, AS, AMK, CT) held together in only 5 of 24 (21%) of the 5-4 cases this Term. This represents a notable drop from the previous two terms, when the conservative majority held together in nearly half of the 5-4 cases, and a departure from the relatively higher levels of coherence observed in previous years of the Rehnquist Court.
(Aside: if the group holds together in only 21% of the closely divided cases, isn't it time to stop referring to the group as a "conservative majority"?) The most common pairings of Justices that agreed in full on the resolution of merits cases:
Chief Justice Rehnquist and Justice Kennedy agreed in full in 77% of the cases that they both heard (53/69). Three other pairs of justices also agreed in full 70% or more of the time: Rehnquist-O`Connor (77%), Souter-Ginsburg (71%), and Stevens-Ginsburg (70%).
I hope to post some end-of-Term commentary soon, but Goldstein's stats provide lots to mull over in the meantime.

Related Posts (on one page):

  1. The 5-4 Cases:
  2. October Term 2004 Statistics:
4 Comments
Bankruptcy Reform Symposia?

Are any law reviews planning symposia on the Bankruptcy Reform Legislation?

4 Comments
Persuasion, Tone, and the Blogosphere: Brian Leiter has a very interesting post up at the Leiter Reports defending the blunt and fairly dismissive tone he sometimes uses when blogging on political questions. If I understand Leiter's post correctly, the gist of his argument is that there isn't much point in trying to engage political questions seriously on a blog because: (1) blogging on big political topics almost never actually persuades people, (2) taking an opponent's arguments seriously legitimates those arguments, and Leiter is confident enough he is right that he doesn't want to do that, and (3) lots of people in the blogosphere are offended by his style only because they are "intellectual lightweights with trite opinions and limited analytical skills" who cannot see that he is clearly correct [with respect to what he calls the 'easy' questions, such as the War in Iraq, Social Security, and the like].

  It seems to me that these arguments for the most part are reasons not to blog at all about political questions, rather than to blog about them in a dismissive way. Leiter does offer two affirmative reasons to blog about politics, however: 1) "to alert like-minded readers to ideas and evidence and arguments which help strengthen their convictions regarding the truths they've already understood or glimpsed," and 2) to "give some expression to our collective outrage and dismay."

  I have two thoughts in response. First, my sense is that Leiter underestimates the number of his readers who are smart people open to persuasion on big political questions. Leiter is right that lots of people are hellbent on sticking to their guns, whether those guns are left or right. They will take on any argument they find that helps the cause, and there are lots of blogs both on the left and right to help them. What makes the blogosphere interesting, I think, is that there are a surprising number of people who are somewhere in the middle, or who have tendencies one way or the other but doubt their instincts and want to learn more. Lots of those people find their way to the Leiter Reports; its non-political posts have made Leiter's blog sort of a law professor's Wonkette. The blog has a large and loyal readership, and my sense is that lots of those readers are intelligent and open to argument on a number of important political issues.

  Second, my own view is that taking an opponent's argument seriously usually does not have the legitimizing effects that Leiter suggests it does. If anything, the opposite happens more often. First, there is the question of timing: If a weak argument is common enough that is it worth addressing, then a large group of people must actually believe it and already think it is legitimate. Second, blogging against that argument in a dismissive way often adds to the legitimacy of the argument, rather than takes away from it, as it recognizes that the opponent's argument is important enough to attack while not actually offering a reason to disagree with it. Finally, I think lots of people interpret a dismissive tone as a sign of weakness. It's a variation of the old lawyer's joke that if the law is against you, pound the facts; if the facts are against you, pound the law; and if the law and facts are against you, pound the table. When readers see a blogger pounding the table, many are likely to assume that there must not be a very good argument to be made in support of that view. "If it's so obvious that you're right," the thinking goes, "Why not just explain why?"

  Of course, neither of these arguments means that it is a bad thing that Leiter or any other blogger uses a particular tone. Blogs are the creations of their owners, and bloggers are free to create them in any way they please. I personally find Leiter's approach pretty entertaining, at least on the whole. But I do think that use of a dismissive tone comes with some considerable limitations.

  I have enabled comments; as always, civil and respectful comments only.
98 Comments
Not the Founders' Wall.--

Todd Zywicki took issue with the claim in a NYT editorial that "the founders, who came up with the idea of a clear wall of separation between church and state, had it right."

Zywicki ambiguously commented: "no one seriously believes that it was the founders who 'came up with the idea of a clear wall between church and state' do they?"

It is unclear whether Zywicki means that:

  1. (1) the idea is of more recent origin than the founding of the US;

  2. (2) the idea is older than the founding of the US; or

  3. (3) whether or not the idea of separation was present at the founding, the first amendment was certainly not understood in the early 1790s to guarantee it.

Before reading any links, I assumed that Zywicki meant (2) or (3), since these are true. Will Baude took Zywicki to mean (1) and pointed out that Jefferson advocated separation in his 1802 letter to CT Baptists. On rereading, I think that Baude's interpretation of what Zywicki meant is at least as plausible as mine--and perhaps more so.

None of the Constititutional framers favored separation at the time of the adoption of the Constitution or the First Amendment. Only after Northern clergy had criticized the (supposedly immoral) Jeffersonian supporters in the 1800 election did the Jeffersonians try to silence them by advocating Separation.

As I wrote months ago:

As University of Chicago legal historian, Philip Hamburger, has shown in his history of the Separation of Church and State, none of the major framers favored Separation until about the election of 1800, when the Jeffersonians urged Separation to silence Northern clergy. Indeed, in the 1780s some religious leaders who were accused of wanting Separation denied such a misreading of their position. In the 1780s and early 1790s, a few religious dissenters favored Separation, but none of the insiders--certainly not Madison.

What Madison wanted in the 1780s was disestablishment of religion and equal liberty for different religions, not a "wall of separation."

In second half of the 19th century, the liberal wing of the Republican Party made a failed attempt to add Separation of Church and State as a constitutional amendment to the US Constitution (since it was not there already).

In the early 20th century, Separation became part of the jurisprudence of the KKK and other nativist groups (as well as some mainstream groups), and Hugo Black (ca. 1920) made new members of the Klan pledge to the eternal separation of church and state. Then in 1947, a labor organization with ties to the Klan brought a suit, Everson v. Board of Education, where then-Justice Hugo Black of the US Supreme Court wrote Separation into the US Constitution.

The US Supreme Court has been quietly moving away from Separation as the metaphor in recent cases . . . .

This fascinating history is told in Hamburger's meticulous book on the subject.

Related Posts (on one page):

  1. Not the Founders' Wall.--
  2. The Founders' Wall (?):

Wednesday, June 29, 2005

Let's Have a Bit of Perspective Here:

Dave Hoffman (PrawfsBlawg) suggests that trying to get Justice Souter's home condemned is "the same as if a mugger went to Justice Scalia on the street and asked for his wallet, on the ground that the Justice has, through his jurisprudence, eroded the protection against seizure on the thoroughfare."

Uh, no. It's actually the same as if someone asked the City Council wherever Scalia lives to impose a special surtax on Scalia's property. Asking the government for something — even something that may ultimately prove unconstitutional — is rather different from a mugging, no? (Perhaps radical libertarians might conclude that the government's actually taking the property would be identical to a mugging, but the mere request, especially one that is nearly certain to be rejected, surely wouldn't qualify.)

Nor is it sound, I think, to say that "Obviously, the takings claim itself is frivolous, given Kelo's intent language" (I assume this means the claim asking that the property be taken), though the error here I think is much less clear than the one I just discussed. Under Kelo, it does seem that the government couldn't seize Souter's property just because it doesn't like his policies. But Kelo speaks to the intentions of the government, not of those who are doing the development.

Developers' intentions are often not public-regarding; even if they aren't political retaliation, they're often simply private gain, which is perfectly fine. If the developer here persuaded the city that the taking would indeed be economically beneficial ("Clements, CEO of Freestar Media, LLC, points out that the City of Weare will certainly gain greater tax revenue and economic benefits with a hotel on 34 Cilley Hill Road than allowing Mr. Souter to own the land"), and the city was genuinely motivated by this public benefit, the developer's motives would, I think, be irrelevant. [UPDATE: There might also be non-Takings-Clause related constitutional objections, for instance based on the theory that certain kinds of state retaliation against federal officeholders for exercising their federal responsibilities violate federalism principles, but these would be far from "obvious" winners, partly because as best I can tell they would rest on largely novel theories.]

Of course, the request to the City Council does seem frivolous in the sense that it's extremely unlikely to be granted. (Among many other factors, surely it seems extremely unlikely that a small town would treat its most successful citizen this way; and few small towns would want the bad publicity that would come of what most people would see as a petty form of retaliation.) Yet this just further shows that despite the "this is not a prank" language in the press release, the petition is surely meant as a political statement, not as the first step in what is intended to be an actual real estate development.

So the petition to the city council, I think, is no crime (as Prof. Hoffman at first suggests it might be, though he concludes, seemingly with some regret, that it's not). If it's simply a request for legislative or executive action, it's just the exercise of Freestar Media's free speech and petition clause rights. If it triggers an adjudicative or quasi-adjudicative process, and it's frivolous in the legal sense (which as I argue above is far from clear) then it might lead to sanctions or civil litigation, simply as a form of frivolous litigation. But my tentative sense from the press release is that it's simply a request to a government body to do something that it has absolutely no interest in doing.

I agree with Randy that we shouldn't seriously want government agencies to retaliate against government officials by seizing their property. But I don't think there's any serious risk of this, and I suspect that many people who liked the press release did so because it makes a humorous political point of the "imagine him hoist by his own petard" variety, not because they actually endorse detonating any petards under Souter or his property. And analogies to muggings strike me as quite misplaced.

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Sandra O'Connor To Retire:

"Sandra O'Connor . . . has said she will retire, her office said Wednesday," reports the AP, for some reason from Baltimore, of all places. Thanks to How Appealing for the pointer.

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Anti-Terror Vs. Anti-Pandemic: Guest-blogging over at Balkinization, Daniel Solove criticizes the government for paying too much attention to anti-terrorism measures and not enough attention to the possibility of a pandemic that could kill millions of people. He writes:
  The most devastating national security issue is, in my opinion, the possibility of a pandemic. But there is little attention to this issue. Sadly, it's because all of the folks crying out to protect our security are so myopically focused on terrorism that they're neglecting to think rationally about where the most likely risks are. . . .
  . . .
  . . . [I]nstead of talking about the usual trade-offs between security and civil liberties, perhaps we should begin talking about the trade-offs when we expend so many resources addressing one security issue while neglecting other security issues. Pandemics are national security issues too, but sadly "national security" appears to be co-opted as a synonym for "terrorism prevention."
  I strongly agree with Solove that the government should be paying more attention to the possibility of a pandemic. But I'm not sure I see the argument that the reason for the relative lack of attention is the government's focus on anti-terrorism measures. Why does government focus on anti-terrorism measures lead to less focus on minimizing the risk of a pandemic? Perhaps the funding for the two might go into some similar pots, but I wonder if this might cut both ways: perhaps more antiterrorism funding could lead to more money being spent on average for pandemic issues, rather than less. This is pure speculation, as I don't know how the two issues are linked either as budgetary or personnel matters, but it's not clear to me that attention to one takes away attention from the other.

  To the extent that Solove is making a point about what topics are receiving lots of public attention rather than government attention — something that does set up more of an either/or relationship — his point seems valid but directed at the wrong target. If there has been too much public attention on the tradeoff between terrorism and civil liberties relative to other threats, then presumably the fault is less the government's (which does not invite such attention, obviously) than the media's. The tradeoff between security and civil liberties has received a tremendous amount of public attention because the media has decided to give it a tremendous amount of attention; the risk if a pandemic has received little public attention at least in part because the press doesn't like to report on it nearly as much. If the amount of the reporting is out of whack with the reality of the threats, then one place to begin is by better matching the former to the latter.
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T.J. Rodgers on Social Security:

My new colleague on the Dartmouth Board of Trustees comments: "I think Social Security is a real scam," said Rodgers, the CEO of Cypress Semiconductor. "I think everybody knows now there is no Social Security fund, that you have no retirement account--that's all a scam. If I ran this company the way the government runs Social Security, I literally would already be in jail."

O'Reilly Factor:

I'll be on this afternoon (some time between 5 to 6 Eastern, I'm told), defending Ward Churchill's constitutional right to urge that soldiers murder their officers. The transcript that I've been given of Churchill's speech says,

For those of you who do, as a matter of principle, oppose war in any form, the idea of supporting a conscientious objector who's already been inducted [and] in his combat service in Iraq might have a certain appeal. But let me ask you this: Would you render the same support to someone who hadn't conscientiously objected, but rather instead rolled a grenade under their line officer in order to neutralize the combat capacity of their unit? . . . (edit). . . Con[sci]entious objection removes a given piece of cannon fo[dd]er from the fray. Fragging and officer has a much more "impactful" effect.

Vile, but constitutionally protected under the Supreme Court's 1969 decision in Brandenburg v. Ohio, and I think rightly so, for reasons I'll discuss on the show.

UPDATE: The transcript that I got also included this follow-up exchange with the audience:

Question: When you’re getting into a discussion of violence and appropriate violence and self-defense, of starting to look at um, what you’re trying to build or what you’re trying to create. For example ‘fragging’ an officer, what you were talking about before at the beginning of your talk, the sort of trauma that inflicts on that officer’s family, back home, I feel like, is an important thing to take into account when your action is trying to accomplish in the first place. I don’t really feel like I can articulate it properly but that’s the General direction I’m heading in with it.

Ward: How do you feel about Adolf Eichmann’s family?

Q: About, Who?

Ward: Eichmann was the bureaucrat who organized the logistics that allowed the holocaust to happen. He had a family; he was a good husband by all accounts and a loving father.

Q: I know I mean I think that we have to take into account the greater, I think we have to come at it from building a sense of place of being in your community, of not furthering trauma in the community. By ‘fragging’ that office you can create this you know . . . (Interrupted) How do I feel about a Nazi officer’s family?

Ward: Should allow him to continue what he’s doing or not?

Q: Absolutely not. But I think method is extremely important. It’s important to have a long view . . . (Interrupted)

Ward: The Israelis hanged him.

This leads me to think that Churchill was urging the killing of officers, and not just abstractly speculating about what the moral status of such killing might be. I've tried getting an audio of the event, but couldn't -- this is the best I've got.

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Gallup Poll--Americans' Confidence in Supreme Court Declining:

From Hear the Issues (a site I'm not familiar with, so I don't know if it has any angle):

A Gallup poll released on June 21st, 2005 shows that Americans' confidence in the Supreme Court has been declining. Gallup asked Americans to rate their level of confidence in 15 institutions in American society, including the Supreme Court. The Supreme Court ranks in the middle of the list, much lower than the military, police, and organized religion, but higher than HMOs, big business, Congress, and organized labor.

Overall, 4 in 10 Americans say they have a great deal (16%) or quite a lot (25%) of confidence in the court. This 41% confidence rating is among the lowest Gallup has ever found for this institution, and it perpetuates a gradual decline in the public's confidence over the past three years.

The story also reports that traditionally Republicans have had greater confidence in the Supreme Court than Democrats ("Republicans and Democrats were not radically different in their confidence with the court from 1973 until 1984, at which point 57% of Republicans and only 44% of Democrats said they were confident in the court."), but that confidence by conservatives has fallen during the past three years, in part because of popularity bump for the Court with conservatives after the 2000 election (or as the article puts it "after the court decision that gave Bush the presidency").

The Conclusion:

The public's current confidence rating in the U.S. Supreme Court is among the lowest that Gallup has found historically. Republicans and Democrats currently show only modest differences in their views of the court -- a much different picture from what Gallup found after the 2000 election controversy when Republicans were much more likely than Democrats to express confidence. Conservatives, moderates, and liberals have roughly the same level of confidence in the court, but since 2000, ratings of the court among conservatives have dropped significantly.

I tried to click through to the Gallup Poll itself to get the primary sources, but this poll seems to be subscriber-only.

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What is an "October Term"?: It occurs to me that some readers probably find it pretty confusing when they come across references to Supreme Court "Terms," "October Terms," and the like. To clarify, the Supreme Court works on a yearly calendar schedule. The first day of the Supreme Court's annual schedule is the first Monday in October, as set by a federal statute. To simplify a bit, everything the Court does starting on that day in October until the same day the next year is part of the "October Term" of that year. The Court generally starts hearing oral argument for the cases on its docket on that day, and generally hears cases on and off until the early spring. The Court then tries to get (and under Rehnquist, succeeeds in getting) all of those cases decided and published by the end of June.

  Why are people talking about the end of the Supreme Court's Term as being on this past Monday if the Term doesn't end technically until October? Because the remaining summer months are mostly downtime at the Supreme Court. While there is always work to be done, ranging from emergency motions and the review of cert petitions to the training of new law clerks, the Court normally doesn't hear cases or publish new decisions during that time. In a practical sense, then, the Term "ends" at the end of June when the merits cases heard since October have been decided. (If a case is scheduled for a hearing over the summer, however, it will still be considered part of the preceding October Term. For example, the campaign finance case was scheduled for argument in September 2003, and was thus technically a case that is part of October Term 2002. But that is relatively rare.)

  The bottom line is that if you hear that someone is writing a book on (say) the October Term 1986, or that somene clerked at the Supreme Court for the October Term 1986, the phrase "October Term 1986" is pretty much just a fancy way of saying "from July 1986 through June 1987."
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"Corporate Funded":

Last week David Bernstein noted the ringing dismissal of the judicial ethics complaint that had been lodged against Judge Danny Boggs for attending judicial education seminars. Monday, the Washington Times ran this column by Robert Huberty of Capital Research on the same issue, "Why Press Gets 'Bad Press.'" Huberty writes:

The Capital Research Center is a nonprofit organization that studies other nonprofits. We are familiar with both the Community Rights Counsel and FREE and with the games some journalists play: using the "funding" issue to discredit one organization, while ignoring the financing of others.

All this raises serious questions at the heart of the media's problems. For example, what is the accepted media definition of "corporate-financed" and when and why is the term used?

The Urban League, NAACP, Council on Foreign Relations, Mexican American Legal Defense & Education Fund, and National Council of La Raza (among others) all have received hundreds of thousands of dollars — in some cases, millions — from U.S. corporations. Among environmental organizations, the Nature Conservancy, Environmental Defense, Sierra Club Foundation and World Wildlife Fund (among others) receive corporate support — including money from companies vilified by the media as "anti-environment."

Yet, of all the organizations I named, only FREE is identified as "corporate-financed." Why?

If facts really matter, FREE openly provides details about its funding. Of the $896,000 it raised last year, 78 percent came from foundations and individuals; just 22 percent from corporations. More important, no corporate money — and no foundation money with corporate ties — is ever used for its legal seminars, which (for the record) are cosponsored by Montana State University. This information is readily available on the organization's Web site ( www.free-eco.org). All a reporter has to do is look.

And how about the motives and financing of the organization complaining about FREE's seminars: the Community Rights Counsel. Should that be part of the story? Some readers might find it interesting, for example, that the organization receives major funding from George Soros.

FREE is transparent about its funding sources, listing on its website, its major donors and the amounts they contribute, both corporate and foundation. On the front page of FREE's website, there is a link for "funding," which takes you to a page that breaks out FREE's funding sources.

The Community Rights Counsel (CRC) , the complainants in the ethics complaint, does not disclose its funding sources or amounts up-front on its web site. It does provide a list of its financial supporters (not amounts) inside two of its publications, here and here). It states that it "receives a very small percentage of its funding from a small number of individual donors; it has never taken money from a corporation or a corporate foundation." As Huberty notes, Geroge Soros's Open Society Institute is disclosed as providing funding for the latter report.

Huberty states that "some readers" might find that last bit of information "interesting." Personally, I do not--I don't really see as very relevant the ideological predispositions of a donor foundation, or the guilt by association of linking one organization to others that a given foundation may support. Given the variety of philanthropic foundations out there and the variety of programs that they support, it seems inappropriate and unreasonable to draw inferences about the receiving organization from the ideological predispositions of the donor foundation (or the other organizations that the foundation supports). Randy commented on this awhile back in the context of gun research, and I think his views are pretty close to mine as to what the rules should be.

On the other hand, CRC seems to agree with Huberty and disagree with my view about the relevance of this sort of information. In its ethics complaint complaint against Judge Boggs, it charges:

FREE's funding comes almost entirely from corporations, corporate-controlled foundations, and a collection of highly-ideological foundations, including Sarah Scaife Foundation (run by Richard Mellon Scaife), Charles Koch Foundation and Claude Lambe Foundation (both controlled by Charles Koch and other employees of Koch Industries) and Castlerock Foundation (run by the Coors family of Coors Inc.).... Almost all of FREE's foundation funders also finance other organizations, such as the Pacific Legal Foundation (PLF) and the Washington Legal Foundation (WLF), that bring environmental litigation in federal court. FREE's funders also share the same perspective on federal environmental protections: either for pecuniary or ideological reasons, FREE's funders desire judicial rulings that limit or cut back on environmental protection. (emphasis added).

Leaving aside the specific of the Boggs complaint, Huberty's larger point is important as well. As he notes, the term "corporate-funded" is a term of aspersion which some see as relevant only in some contexts. For instance, Enron in its heyday was a major supporter of the Kyoto Protocol and was widely praised by leading environmental organizations for its positions on environmental issues. Enron, of course, was not an oil or coal company, but rather, made its money off natural gas and alternative energy; thus, it is not surprising that it threw its lobbying efforts behind a treaty designed to reduce the use of rival fuels and increase demand for Enron's products. Leading environmental groups went so far as to lobby for tax breaks that had the effect of directly subsidized Enron's alternative energy programs.

Moreover, as I noted in a law review article a few years ago (73 Tulane L. Rev. 845 (1999)), these sorts of rent-sharing arrangements between industry and environmental groups are quite common:

The presence of these "gains to trade" politics may explain the otherwise puzzling financial support of industry for environmental interest groups. For instance, in recent years members of the waste treatment industry have pumped hundreds of thousands of dollars into the coffers of various environmental advocacy groups, including the National Audubon Society and the National Wildlife Federation. Indeed, the Sierra Club has recognized that "the commercial waste industry has an interest in improving regulations sufficiently to drive mom-and-pop operations out of business." Of course, the waste treatment industry also is aware of these potential gains to trade. Oil companies, including Atlantic Richfield and Chevron, contribute to environmental groups such as the National Audubon Society, who lobby to restrict opening new areas for drilling, thereby keeping new supplies off the market. As these examples illustrate, there are ample gains to trade between environmentalists and polluting industries, and they are usually exploited.

So, when environmental groups take positions consistent with the financial interests of their corporate donors, and support policies that subsidize their donors (such as tax breaks), or injure their competitors (small commercial waste companies), or assist them in foreclosing competition and raising prices (such as restrictions on oil drilling), why wouldn't it be relevant that these groups too are "corporate funded"?

[Like David, I too have participated in FREE programs, having lectured at the program on "Understanding the Ecology, Economics, and Ethics of Climate Change" in July 2002. Also on the faculty were Michael E. Schlesinger, Professor of Atmospheric Sciences at University of Illinois, a leading expert on the science of climate change, Rob Mendehlson of Yale School of Forestry and Environmental Studies, and Lakshman D. Guruswamy, University of Colorado College of Law, among others. Over all, as a check of the FREE website will confirm (they list their programs since 1993 on their website), their programs feature a range of speakers from a variety of perspectives (much more than say the typical AALS program), and have featured quite a distinguished faculty.]

Related Posts (on one page):

  1. More on Boggs Ethics Complaint:
  2. "Corporate Funded":
Safire and the Use of Language: William Safire's column in the New York Times today is an interesting example of how to use word choice and innuendo to make your argument. Safire starts with a set of facts that as best as I can assemble look something like this:
  The Supreme Court recently denied certiorari in a case involving two journalists, Judith Miller and Matt Cooper, who were held in contempt for failure to comply with a court order requiring them to testify in a criminal investigation under the 1982 Intelligence Identities Protection Act. Special counsel Patrick Fitzgerald has been seeking the testimony of the two journalists for the last year, but the journalists' refusal to disclose the source of leaks that led to a Robert Novak column 2 years ago about a CIA agent apparently has brought the investigation to a standstill. The precise details of the potential role of the Miller and Cooper testimony remain under seal, however.
After the facts have been Safirized, the language comes out looking like this:
  The Supreme Court has just flinched from its responsibility to stop the unjust jailing of two journalists - not charged with any wrongdoing - by a runaway prosecutor who will go to any lengths to use the government's contempt power to force them to betray their confidential sources.
  The case was about the "outing" of an agent - supposedly covert, but working openly at C.I.A. headquarters - in Robert Novak's column two years ago by unnamed administration officials angry at her husband's prewar Iraq criticism.
  To show its purity, the Bush Justice Department appointed a special counsel to find any violation of the 1982 Intelligence Identities Protection Act. . . .
  Evidently no such serious crime took place. After spending two years and thousands of F.B.I. agent-hours and millions of dollars that could better have been directed against terrorism and identity theft, the prosecutor, Patrick Fitzgerald, admits his investigation has been stalled since last October. We have seen no indictment under the identities protection act.
  What evidence of serious crime does he have that makes the testimony of Judith Miller of The New York Times and Matthew Cooper of Time magazine so urgent? We don't know - eight pages of his contempt demand are secret - but some legal minds think he is falling back on the Martha Stewart Theory of Prosecution. That is: if the underlying crime has not been committed, justify the investigation by indicting a big name for giving false information.
  Thus, if the reporters resist the coercion of the loss of their freedom, the prosecutor can blame them for his inability to go to trial on the "heavy" charge. But if they cave in, he can get some headlines on the ancillary charge of false statements.
  To be clear, I don't necessarily mean to be critical of Safire here. My own view is that Safire is being a bit over-the-top, but this is an op-ed, and Safire is apparently friends with Miller. I think it's just interesting to watch language-maven Safire use language on a topic that he obviously cares about a great deal.
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Hints, Rumors, and Sources: The absence of retirement news at the functional end of the Supreme Court's Term on Monday hasn't stopped everyone from speculating about retirements this week. Some people are reading a lot into a report of a recent comment by Justice Thomas (or at least a headline; note the considerable difference between the report itself and the headline on law.com). Others are claiming to have sources that say a retirement or two is imminent. My own top-secret sources are telling me even bigger news: All nine Justices will leave the Court, at least eventually.
Nomination Update:

Interesting article on the work at the White House surrounding a possible Supreme Court nominee (I'm told by a reader that access to the article requires registration). (HT: SCOTUS who also links to an interesting Novak column on the other day on the same topic).

Relevance of International Law:

The 10 Commandments cases also nicely illustrate the fundamental problem with the Supreme Court's "now you see it, now you don't" approach to looking to international sources for guidance on interpreting the U.S. Constitution. If the Court is going to engage in a free-range analysis of policy, history, psychology, etc., about the accommodation of religion in society and the public sphere, wouldn't the development and experience of Europe be at least as relevant here as in the other cases where the Court has looked to those sources for guidance? I can't see of any reason why world experience on interpreting the Establishment Clause would be any less relevant than for interpreting, say, the Cruel and Unusual Punishment Clause in the context of the juvenile death penalty. Furthermore, my impression is that public displays of religion are much more permissible in Europe, for instance, than what would be permitted here (not to mention Israel and Islamic societies). Maybe someone can explain to me why it would be relevant in interpreting one clause and not the other because I can't see the difference.

Leaving aside all of the intellectual arguments for whether the Court should or should not rely on international law for constitutional guidance, it is hard to escape the conclusion that the Court's periodic reliance on world legal opinion is purely strategic rather than sincere, perhaps to dress up the Court's personal predilections in the guise of legal authority. I am not aware of any principle that the Court has articulated which would permit litigants or the public to predict when international law or practice would be relevant to the interpretation of the U.S. Constitution. Nor am I aware of any scholar who has defended reliance on international sources who has tried to distinguish when international law is relevant to constitutional interpretation versus when it is not.

Update:

A reader has offered the amendment that the term "foreign law" rather than "international law" is the more accurate term to use here. I think the context makes clear what I had in mind, but if not, I offer this amendment as well.

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Tyler Cowen is appalled by this:

Major League Baseball hasn't narrowed the list of the eight bidders seeking to buy the Washington Nationals and some Republicans on Capitol Hill already are hinting at revoking the league's antitrust exemption if billionaire financier George Soros, an ardent critic of President Bush and supporter of liberal causes, buys the team.

"It's not necessarily smart business sense to have anybody who is so polarizing in the political world," Rep. John E. Sweeney (R-N.Y.) said. "That goes for anybody, but especially as it relates to Major League Baseball because it's one of the few businesses that get incredibly special treatment from Congress and the federal government."

Rep. Tom M. Davis III (R-Va.), who was a strong supporter of bringing a baseball team to Virginia, told Roll Call yesterday that "Major League Baseball understands the stakes" if Soros buys the team. "I don't think they want to get involved in a political fight."

Here is the full story.  I am also amazed but not surprised that this kind of political threat is not viewed as a) a major scandal, and b) headline news. 

More on "Divisiveness":

From the Washington Times today:

A 70 percent majority

Seventy percent of Americans would have no objection to posting the Ten Commandments in government buildings, and 85 percent would approve if the Commandments are included as "one document among many historical documents" when displayed in public buildings, according to a survey conducted for the First Amendment Center. The State of the First Amendment survey, conducted since 1997, samples the American public's opinion each year on a variety of First Amendment issues. The U.S. Supreme Court ruled Monday on two cases, from Kentucky and Texas, concerning Ten Commandments displays. In a case involving Kentucky courthouse displays, it said county officials crossed a constitutional line and were, in effect, endorsing religion even though other documents were added. But in the Texas case, the court approved an outdoor display where the commandments are part of a larger exhibit on the grounds of the Statehouse that recognized the history of the nation's legal system and religious heritage.

The full survey is available here (the 10 Commandments questions are at pages 10-11).

Overall, if the divisiveness of religious displays is the test, this doesn't seem very divisive to me, especially when compared to much political rhetoric. Nor does this survey evidence bear out the assumption that the "greater diversity" of American religious belief today makes these displays more divisive or controversial than traditionally. And one suspects that if the survey results were broken down by geographic region, it would be even less divisive in many red states. Having lived in red states most of my adult life (unlike most members of the Court, I suspect), I can tell you from personal experience that these sorts of displays simply are not controversial or divisive in any meaningful way, especially when compared to other elements of the public dialogue.

So while America's legal and intellectual class seem to believe that public religious displays are unusually divisive or offensive in modern America, there seems to be little evidence to support that view. Indeed, I would be hard-pressed to come up with any other proposition in the public debate today (tax cuts, social security reform, war, etc.) that would meet with public approval of 85% of the public that they would "strongly" or "mildly" agree that a public official could take a particular action.

My personal view is that the Court should probably just scrap any further discussion of the purported divisiveness of religious displays and stick to law, rather than second-rate sociology. I don't see that it really adds much to the analysis in the first place, so not that much would be lost and perhaps some intellectual integrity would be gained. The divisiveness inquiry is utterly intellectually vacuous, unsupported by any serious social science evidence of which I am aware, and for most of the country, by common, everyday experience. Indeed, as Eugene has noted, it is quite probable that the Court's efforts to try to police the proper boundary lines of divisiveness probably has created more divisiveness on religious issues than it has solved. On the other hand, if the Court (and academics and commentators) want to stick with the argument that religious displays are unusually "divisive" relative to other elements of public discourse,they should actually come up with some empirical evidence to back it up, rather than pretending that it is anything more than their personal bias and experience.

Related Posts (on one page):

  1. More on "Divisiveness":
  2. The "Divisiveness" of Religious Displays:
Are Internet Gambling Businesses Illegal?: The Internet gambling giant PartyGaming went public in London this week, and the IPO was a big success. The current stock price values the company in the neighborhood of $10 billion. PartyGaming is an odd company, at least in a geographic sense. It is based in Gibraltar and went public in London, even though most of its customers are in the United States. The reason the company isn't based in the United States is pretty simple: the business may very well be illegal under U.S. law. Indeed, it turns out that the legality of most Internet gambling businesses under U.S. law hinges on an interesting and unsettled question of statutory interpretation.

  First, a bit of background. Most gambling law in the United States is state law. Each state gets to decide whether gambling is legal or illegal within that state. Nevada can legalize most gambling, and other states can ban it outright. The result is a patchwork of state laws, and it means that at least in theory, the basic answer to whether Internet gambling is illegal turns out to be mostly a question of state law. In practice, however, states have relatively little means of regulating online gambling. Their powers to investigate activity beyond the geographic confines of their states is quite limited, and efforts to regulate gambling activities outside their boundaries are likely to run into legal problems under the dormant commerce clause. So while state laws regulate Internet gambling in form, it's the federal laws that matter more in the real world. (A possible exception is New York law, as New York state AG Eliot Spitzer has been interested in this issue for a while now.)

  The primary federal gambling law is the Wire Act, 18 U.S.C. 1084, which states:
  (a) Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers, shall be fined under this title or imprisoned not more than two years, or both.
  (b) Nothing in this section shall be construed to prevent the transmission in interstate or foreign commerce of information for use in news reporting of sporting events or contests, or for the transmission of information assisting in the placing of bets or wagers on a sporting event or contest from a State or foreign country where betting on that sporting event or contest is legal into a State or foreign country in which such betting is legal.
  The general regulatory strategy behind the Wire Act is to regulate only the business of betting, not betting itself, and to provide an exception when a wire communication is used between between two jurisdictions where that betting is legal.

  Notably, however, the text of the Act is ambiguous in an important way. We can break down the three prohibitions in 18 U.S.C. 1084(a) as follows:
Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility
  [1] for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or
  [2] for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or
  [3] for information assisting in the placing of bets or wagers.
  Here's the question: Should the limitation "on any sporting event or contest" in [1] be read to extend to prohibitions [2] and [3] above, or is it limited only to [1]? If the former, then the law only prohibits sports betting businesses, and Internet sites that offer poker and other casino games do not violate federal law. If the latter, then the law generally prohibits Internet gambling businesses of all types because the prohibitions in [2] and [3] are general to "bets and wagers" rather than specific to bets and wagers on sporting events.

  So which interpretation is correct? A district court in the Fifth Circuit concluded that the former interpretation is correct in a civil case brought by gamblers against credit card companies for facilitating their Internet gambling practices. On appeal, the Fifth Circuit agreed, albeit only in a very cursory analysis:
The district court concluded that the Wire Act concerns gambling on sporting events or contests and that the Plaintiffs had failed to allege that they had engaged in internet sports gambling. [FN20 — In re MasterCard, 132 F.Supp.2d at 480 ("[A] plain reading of the statutory language [of the Wire Act] clearly requires that the object of the gambling be a sporting event or contest.").] We agree with the district court's statutory interpretation, its reading of the relevant case law, its summary of the relevant legislative history, and its conclusion.
In re Mastercard International, 313 F.3d 257, 262 (5th Cir. 2002).

  Why doesn't that settle the matter? Because the Justice Department looks at this differently. DOJ believes that the Wire Act does not only regulate sports betting, but also regulates Internet gambling more generally. In other words, DOJ reads the limitation of [1] as applying only to [1], and not extending to [2] and [3]. Because the Wire Act is a criminal statute, DOJ can bring a criminal prosecution outside of the Fifth Circuit for running an Internet gambling site and it won't be settled whether DOJ or the Fifth Circuit's interpretation applies until the appeals are settled years later.

  PartyGaming's response to this uncertainty is to acknowledge both the potential illegality of its operation in and the difficulty of enforcing those laws so long as PartyGaming keeps its key players and assets outside the United States. From a press report:
[I]n its offering documents, PartyGaming makes no secret of the fact that even if the company's view of the law proves wrong, it is banking on its executives' belief that there is little that law enforcement can do - or will do - to prosecute. "In many countries, including the United States, the group's activities are considered to be illegal by the relevant authorities," PartyGaming says in its offering document. "PartyGaming and its directors rely on the apparent unwillingness or inability of regulators generally to bring actions against businesses with no physical presence in the country concerned."
  No doubt they are also relying on the possibility that Congress will change the law in the future and make clear that their service is not illegal — something that a $10 billion publicly-traded company can try to bring about more effectively than a secretive group operating out of a closet in Antigua.

  UPDATE: More from Christine Hurt.
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Samuelson--"Europe is the citadel of hypocrisy" on Kyoto:

Great column by Robert Samuelson today captures the continuing debate over Kyoto and greenhouse gas emissions:

Almost a decade ago I suggested that global warming would become a "gushing" source of political hypocrisy. So it has. Politicians and scientists constantly warn of the grim outlook, and the subject is on the agenda of the upcoming Group of Eight summit of world economic leaders. But all this sound and fury is mainly exhibitionism -- politicians pretending they're saving the planet. The truth is that, barring major technological advances, they can't (and won't) do much about global warming. It would be nice if they admitted that, though this seems unlikely.

Europe is the citadel of hypocrisy. Considering Europeans' contempt for the United States and George Bush for not embracing the Kyoto Protocol, you'd expect that they would have made major reductions in greenhouse gas emissions -- the purpose of Kyoto. Well, not exactly. From 1990 (Kyoto's base year for measuring changes) to 2002, global emissions of carbon dioxide (CO2), the main greenhouse gas, increased 16.4 percent, reports the International Energy Agency. The U.S. increase was 16.7 percent, and most of Europe hasn't done much better.

Here are some IEA estimates of the increases: France, 6.9 percent; Italy, 8.3 percent; Greece, 28.2 percent; Ireland, 40.3 percent; the Netherlands, 13.2 percent; Portugal, 59 percent; Spain, 46.9 percent. It's true that Germany (down 13.3 percent) and Britain (a 5.5 percent decline) have made big reductions. But their cuts had nothing to do with Kyoto. After reunification in 1990, Germany closed many inefficient coal-fired plants in eastern Germany; that was a huge one-time saving. In Britain, the government had earlier decided to shift electric utilities from coal (high CO2 emissions) to plentiful natural gas (lower CO2 emissions).

On their present courses, many European countries will miss their Kyoto targets for 2008-2012.

Kyoto is nominally an environmental treaty--although the effect on global warming is thought to be very small, perhaps on the order of a reduction in temperature of 0.15 degrees C in 2100, or putting off the same warming trend by 6 years. But once you look into the details of the treaty, at this point it seems clear that its primary purpose as drafted (and why Europe is so keen on ratification by the U.S.) is economic, and, in particular, for Europe to gain economic advantages versus the United States.

Many scholars have discussed the costs that the United States would incur in order to achieve these modest results. But there is an additional cost that is often ignored--the rent-seeking costs of self-interested actors using collective decision making processes to redistribute wealth to themselves.

Collective action, whether by national or international bodies, has both benefits and costs. The potential benefit is that the jurisdiction of the regulatory body can match up more closely with the scope of the problem to be regulated. The problem is that any collective decision-making process is subject to rent-seeking, meaning that well-organized interest groups can travel under the banner of the regulatory body in order to tap into others' pockets in order to enrich themselves. It has been long recognized that within the United States alone, environmental regulation has been used by rust belt states to impose competitive disadvantages on growing states in the South and West through a variety of regulations that disproportionately impact new businesses in less-developed regions of the country.

As Bruce Yandle has observed, rent-seeking explains many of the details of Kyoto, which have little to do with environmental improvement and much to do with economic advantage (including such seemingly mundane issues of the choice of 1990 as the baseline for emissions targets). Yandle notes that these rent-seeking pressures are reflected in a variety of provisions in the treaty that would provide European countries with competitive economic advantages versus the United States. In other words, its not just that the costs of the treaty may exceed the benefits, the treaty is written in such a manner that the costs will be larger for the United States relative to Europe, giving Europe a comparative economic advantage.

Moreover, this assumes that both the U.S. and Europe are equally committed to complying with the treaty. In fact, one reason the United States has probably been reluctant to enter into Kyoto is because it would probably actually abide by its terms, unlike the Europeans. As Samuelson suggests, the "sophisticated" Europeans by contrast, probably do not intended to comply with Kyoto, and it is questionable whether they ever intended to meet their targets from the very beginning.

Of course, the fact that rent-seeking is an inherent part of any collective decision-making does not mean that particular collective decisions should not be taken. Instead, it simply means that we should recognize the omnipresence of rent-seeking in all collective bodies, and take that into account not only in designing institutions ex ante, but in evaluating the decisions produced ex post. The goal should be to design policies that solve the collective action problems while minimizing the rent-seeking costs. I have called this the trade-off between "environmental externalities" and "political externalities," (an insight that I first drew from Buchanan and Tullock's analysis in the Calculus of Consent).

So it seems perfectly appropriate to me to say that global warming can only be addressed through international collective action, but that as a result of poor institutional design, poor bargaining, or the poor enforcement (i.e., the unlikeliness of Europe's compliance with the treaty), the rent-seeking costs of Kyoto exceed the small environmental benefits the treaty might generate. It is also perfectly appropriate to conclude the opposite. Different people can reasonably disagree about how to trade off these costs and benefits, as well as the trade-off between political and environmental externalities. (This, of course, focuses just on the wisdom of pursuing an emissions-reduction policy, as in Kyoto, rather than a completely different policy, such as adaptation and amelioration of the effects, or providing compensation for any harms caused by emissions.) And if the costs of international collective action become too high, it is perfectly appropriate for individual countries to act unilaterally or bilaterally to bring about constructive results with lower economic and rent-seeking costs.

Samuelson concludes:

What we have now is a respectable charade. Politicians and advocates make speeches, convene conferences and formulate plans. They pose as warriors against global warming. The media participate in the resulting deception by treating their gestures seriously. One danger is that some of these measures will harm the economy without producing significant environmental benefits. Policies motivated by political gain will inflict public pain. Why should anyone applaud?

Tuesday, June 28, 2005

A Day Late, and A Dollar Short on Bendectin:

There was once a safe and effective prescription remedy for morning sickness called Bendectin (Debendox in other countries). After a great deal of "phantom risk" hysteria, Bendectin was driven off the American market by thousands of lawsuits, unsupported by valid scientific evidence, claiming it caused birth defects. The litigation continued well after a consensus formed in the scientific community that Bendectin does not cause birth defects, and the evidence has since continued to accumulate that Bendectin is perfectly safe.

With Bendectin off the market, the rate of hospitalizations for morning sickness has doubled, and hundreds of thousands of pregnant women annually face "unwarranted and preventable suffering."* The withdrawal of Bendectin from the market, was, as one article puts it, "an American tragedy"**--Bendectin was never taken off the market in other countries or, as in Canada, quickly returned to the market after a short hiatus; you can easily get it in generic form from Canada or elsewhere (you can also make a home version from nonprescription ingredients, but physicians are understandably reluctant, given the litigation history of the drug, to recommend this). Meanwhile, Bendectin and other litigation fiascoes related to women's reproductive health has severely discouraged pharamceutical companies from researching new morning sickness drugs, contraceptives, etc.

No plaintiffs' attorney is more identified with the Bendectin litigation than former ATLA president Barry Nace [by the way, consider what it says about ATLA's members that they elected him president long after he helped drive Bendectin off the market]. He had many Bendectin cases, and was the one who took Daubert v. Merrell Dow Pharmaceuticals, which revolutionzed the rules for the admissibility of expert testimony, to the Supreme Court (though he hired Georgetown professor Mike Gottesmann to argue the case before the Supremes). At some point, Nace decided that one of his Bendectin cases wasn't worth pursuing, and his client sued him.

In August 1998, his attorney in this case filed a brief in support of a motion for summary judgment, in which he argued, among other things, that Nace wasn't liable to the client because "courts soundly and uniformly reject the notion that Bendectin causes birth defects."

Two years later, Nace told the New York Times that he still believes that Bendectin causes birth defects. I guess he forgot to tell his lawyer.

Update: Kaimi Wenger points out that Nace's attorney is likely arguing only that courts have ruled that Bendectin doesn't cause birth defects, not that it actually doesn't. I initially read the brief (as did the source who sent it to me, and the source who sent it to him) as denying that Bendectin causes birth defects, not simply that many courts have rejected causation evidence. The wording of the entire paragraph is awkward and somewhat ambiguous. The argument also isn't very persuasive without the concession that Bendectin doesn't in fact cause birth defects; without the concession, the argument is that because many other courts that the New Jersey trial court, in a summary judgment context, where all facts are construed against the party who wants the case dismissed, should reject the notion that evidence that Nace originally planned to present would have been admitted. This despite the fact that the issue had never come up before in New Jersey, and New Jersey's admissibility test was, at best, consistent with but not identical to the test in other jurisdictions. But, on rereading the brief, I think it is just a bad argument, not (intentionally) an explicit argument that Bendectin doesn't cause birth defects. Nevertheless, one would have thought that Nace would be reluctant to have his attorney argue that his experts' testimony that Bendectin causes birth defects wouldn't be admissible in New Jersey which, in practice, is among the most plaintiff-friendly jurisdictions in the country.

* Paolo Mazzotta, et al., Attitudes, Management and Consequences of Nausea and Vomiting of Pregnancy in the United States and Canada, 70 INT’L J. GYNECOLOGY & OBSTETRICS 359 (2000).

** Melanie Ornstein, et al., Bendectin/Diclectin for Morning Sickness: A Canadian Follow-up of an American Tragedy, 9 REPRODUCTIVE TOXICOLOGY 1 (1995)

A Taking for an Excellent Public Purpose: This is from a press release from Freestar Media (an entity I know nothing about):
Weare, New Hampshire (PRWEB) Could a hotel be built on the land owned by Supreme Court Justice David H. Souter? A new ruling by the Supreme Court which was supported by Justice Souter himself itself might allow it. A private developer is seeking to use this very law to build a hotel on Souter's land.

Justice Souter's vote in the "Kelo vs. City of New London" decision allows city governments to take land from one private owner and give it to another if the government will generate greater tax revenue or other economic benefits when the land is developed by the new owner.

On Monday June 27, Logan Darrow Clements, faxed a request to Chip Meany the code enforcement officer of the Towne of Weare, New Hampshire seeking to start the application process to build a hotel [on] the present location of Mr. Souter's home.

Clements, CEO of Freestar Media, LLC, points out that the City of Weare will certainly gain greater tax revenue and economic benefits with a hotel on [this property] than allowing Mr. Souter to own the land.

The proposed development, called "The Lost Liberty Hotel" will feature the "Just Desserts Café" and include a museum, open to the public, featuring a permanent exhibit on the loss of freedom in America. Instead of a Gideon's Bible each guest will receive a free copy of Ayn Rand's novel "Atlas Shrugged."

Clements indicated that the hotel must be built on this particular piece of land because it is a unique site being the home of someone largely responsible for destroying property rights for all Americans.

"This is not a prank" said Clements, "The Towne of Weare has five people on the Board of Selectmen. If three of them vote to use the power of eminent domain to take this land from Mr. Souter we can begin our hotel development."

Clements' plan is to raise investment capital from wealthy pro-liberty investors and draw up architectural plans. These plans would then be used to raise investment capital for the project. Clements hopes that regular customers of the hotel might include supporters of the Institute For Justice and participants in the Free State Project among others.
You can read the developer's (possibly tongue-in-cheek) fax to the Town of Ware here . Perhaps this taking can also be justified as part of a "comprehensive plan" to restore the meaning of the Takings Clause. (Hat tip to Matt Rustler.)

Update: I had posted this link facetiously but see that some commentors, both pro and con, are taking it more seriously. Retaliating against a judge for the good faith exercise of his duty is not only a bad idea, it violates the holding of Kelo itself, for the intent would be to take from A to give to B, in this case to punish A. I had considered deleting this post altogether--and perhaps this would still be a good idea--but, since other blogs had linked to it, decided instead to add this postscript.

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Volokh Conspiracy Gets Results!

One post, and there you go:

Russia's state prosecutor announced Tuesday afternoon that he is canceling an investigation into claims that a 19th century abridged code of Jewish law (halakha) contains incitement against non-Jews.

The preliminary investigation of the Jewish umbrella organization for distributing a Russian translation of the text has also been dropped. . . .

Thanks to fellow lawprof Craig Oren for the pointer.

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The "Divisiveness" of Religious Displays:

More generally, both the New York Times and Washington Post editorials are very taken with (one might even say that they "adored") Breyer's comment that ordering the removal of the Texas monument could "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid," suggesting that both Editorials believe that the touchstone for interpreting the Establishment Clause is the potential for "divisiveness." I have heard esteemed constitutional law scholars make this argument as well.

Leaving aside for the moment whether the opinions were correctly decided or not, or whether the purpose of the Establishment Clause is to minimize social divisiveness, the idea that the Supreme Court has any idea what could make for more or less divisiveness on this issue is, quite frankly, preposterous.

Eugene questions whether Supreme Court intervention in this area has actually tended to reduce rather than increase divisiveness.

I think there is a more important point here--how can the Supreme Court possibly know what exact type of religious display may actually be more or less divisive? More or less divisive than the alternative? Well, who in the heck knows--but that is the point isn't it? How can the Supreme Court possibly know what the most divisive policy is with respect to these hair-splitting distinctions.

If the Supreme Court is going to leave the realm of constitutional principle and engage in the policy analysis of social divisiveness, surely it has some obligation to have some foundation deeper than hunch and guesswork, doesn't it? It seems like it has to at least have some empirical foundation for its judgments.

Now, I have not seen a shred of serious empirical evidence that would answer Eugene's question or provide any guidance whatsoever about the degree of "divisiveness" of a given opinion. And isn't it obvious that the purported divisiveness of a given display will differ very much from one location to another? It is bad enough that the Supreme Court thinks it is qualified to engage in this sort of hair-splitting without any empirical evidence to support it ("not removing this one is divisive, removing that one would be more divisive than the divisiveness it is supposed to cure"); it is even worse when it is pretended that this is proper jurisprudence.

In fact, I'll bet that on an actual "divisiveness" scale, both displays rated pretty low--I'll bet few people really cared much about them one way or the other. And I'll bet that the communities in these cases reached a fairly consensus agreement on what they would be willing to tolerate.

Compare the mythical nature of the likely divisiveness in these cases with, say, the recent political comments by Karl Rove and Senator Durbin. Yet nobody thinks that the divisive nature of those comments has anything to do with whether they are constitutionally-protected. If so, then public divisiveness doesn't seem to get us very far as a constitutional concept. And if it does, then let's apply the concept where it really matters.

In sum, the whole discussion of the supposed "divisiveness" of religious displays seems silly to me. No serious empirical evidence is offered to back it up, and there is no reason to think that the Supreme Court has comparative advantage in weighing degrees of "divisiveness." It seems far better for the Supreme Court to actually try to make principled rulings rather than to pretend like they actually have some empirical data to back up what amounts to personal, uninformed hunches of nine inside-the-beltway lawyers.

Related Posts (on one page):

  1. More on "Divisiveness":
  2. The "Divisiveness" of Religious Displays:
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Thomas Kelo Dissent T-Shirts & Mugs: Lisa Binder has arranged with CafePress to sell t-shirts and mugs with Justice Thomas's soon-to-be famous line from his dissenting opinion in Kelo:
"Something has gone seriously awry with this Court’'s interpretation of the Constitution."
Order yours here while they are hot.

If your taste runs more towards Justice O'Connor, a quotation from her Kelo dissent is available here.

Update: All profits go to Lisa.

More on the New York Times Hypothesis:

And for those running a mental regression on the New York Times Hypothesis, its not clear how to code this outcome:

The Supreme Court reached opposite results yesterday in a pair of cases involving the Ten Commandments, upholding a display of the commandments on the grounds of the Texas Capitol, while striking down displays in Kentucky courthouses. The rulings will be criticized from all sides; we would have preferred the Texas case to have come out the other way. But taken together, they are an important reaffirmation of the nation's commitment to separation of church and state.

And just to clarify--the precise hypothesis, as I understand it, is that the best predictor of the outcomes in Supreme Court cases is the preference of intellectual and societal "elites." Because the preferences of this group is difficult to measure, if one were to run a regression, the operational variable that one could use to proxy for this variable would be the views of the New York Times Editorial Board.

So the hypothesis is that the prevailing views of the country's elites is the best predictor of outcomes in Supreme Court cases, as opposed to other variables (such as political ideology, general public preferences, etc.). The 10 Commandments case would be hard to code on that basis. (The Washington Post is similarly equivocal, "The court's approach may not be philosophically satisfying, but in practical terms, it isn't a bad way to evaluate public religious monuments.").

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The Founders' Wall (?):

From today's New York Times Editorial:

With the religious right clamoring for more religious iconography in public spaces, it is understandable that the court might have shied away from a dramatic ruling that would have heightened what is already a strong antagonism toward the judiciary among some conservative groups. Ceding some ground on Ten Commandments displays may seem like a way to keep the peace. But as our country becomes more religiously diverse, putting one faith in a privileged position is likely to create more religious strife, not less. As with so much else, the founders, who came up with the idea of a clear wall of separation between church and state, had it right.

Its one thing to agree with the opinion and make an argument that the interpretation of the First Amendment should change with the ages, but no one seriously believes that it was the founders who "came up with the idea of a clear wall between church and state" do they?

Related Posts (on one page):

  1. Not the Founders' Wall.--
  2. The Founders' Wall (?):
59 Comments
Grokster Decision, Second Thoughts:

The unanimous Supreme Court decision holding Grokster & StreamCast liable as contributory copyright infringers for distributing peer-to-peer file-sharing software turns out, on close examination, to be not nearly the victory for the entertainment industry it might have seemed at first glance. [This, interestingly, repeats a pattern in these cases – Sony v. Universal Studios (the Betamax case) was not (nearly) as big a loss for Hollywood as it appeared, nor, as I have argued elsewhere, was the Napster case as big a win).

The Court’s holding has two parts. First, on the law: You are liable for the copyright infringements of others if you “intentionally induce or encourage” that infringing behavior. The Betamax case stands only for the proposition that if you “distribute an article [that] is good for nothing else but infringement,” we will presume that you have such an intent, or impute it to you. If, on the other hand, you are selling a “staple article of commerce” – “an item with substantial lawful as well as unlawful uses” (like the VCRs in the Betamax case) – we won’t make that presumption; plaintiffs can prevail in that case, but only if they prove, with direct evidence of your “statements or actions directed to promoting infringement,” that you had the requisite intent to encourage others to infringe.

So far, so good. Not much new here, actually; we kind of knew all that last week. Had I shown the preceding paragraph to someone on either side of the case a week ago, I don’t think they would have batted an eye.

On, then, to the second part of the holding, the application of that law to these facts. No need to decide whether the Grokster or StreamCast systems were in fact “staple articles of commerce,” because here the “record is replete with . . . evidence that Grokster and StreamCast, unlike the manufacturer and distributor in Sony, acted with a purpose to cause copyright violations.” In other words: we don’t have to see whether a presumption of intent is or is not warranted; here’s there was actual proof of such an unlawful intent – “words and deeds [that] show [defendants’] purpose to cause and profit from third-party acts of copyright infringement.” These included:

  • each company showed itself “to be aiming to satisfy a known source of demand for copyright infringement, the market comprising former Napster users,” including “beam[ing] onto the computer screens of users of Napster-compatible programs ads urging the adoption of [defendants’] OpenNap program, which was designed, as its name implied, to invite the custom of patrons of Napster, then under attack in the courts for facilitating massive infringement”;
  • each of the defendants “communicated a clear message [of encouragement] by responding affirmatively to requests for help in locating and playing copyrighted materials”;
  • there were “unequivocal indications of unlawful purpose in the internal communications and advertising designs aimed at Napster users”

Here’s where things get weird: the defendants didn’t really dispute this either. [No wonder the decision was unanimous!]. As I tried to explain a couple of months ago, Grokster and StreamCast didn’t argue that they hadn’t “intentionally induced” infringement; they argued instead that the question of whether they had or had not induced infringement wasn’t properly before the Court, that none of the evidence on which a finding of inducement could be based was properly presented to the Court on appeal.

This was always going to be a tricky procedural argument to make, and, obviously, the Court didn’t buy it, dismissing the argument in a footnote:

“Grokster and StreamCast contend that any theory of liability based on their conduct is not properly before this Court because the rulings in the trial and appellate courts dealt only with the present versions of their software, not ‘past acts . . . that allegedly encouraged infringement or assisted . . . known acts of infringement.’ This contention misapprehends the basis for their potential liability. It is not only that encouraging a particular consumer to infringe a copyright can give rise to secondary liability for the infringement that results. Inducement liability goes beyond that, and the distribution of a product can itself give rise to liability where evidence shows that the distributor intended and encouraged the product to be used to infringe. In such a case, the culpable act is not merely the encouragement of infringement but also the distribution of the tool intended for infringing use.”

[Incidentally, there’s almost always some odd procedural glitch like this whenever a unanimous Supreme Court decision overturns a lower court ruling. Appellate judges are not, generally speaking, stupid; it’s not that likely that they’ll get a judgment so wrong that all nine Justices will see things the other way]

What does this all mean for the future of copyright law and peer-to-peer file-sharing? On the one hand, a “work-around” here seems pretty straightforward: If you are developing and distributing file-sharing or file-copying or file-distributing software, avoid “words and deeds going beyond distribution as such [that] show a purpose to cause and profit from third-party acts of copyright infringement.” I doubt that will prove an insurmountable hurdle for the software and systems developers of the world. Shut up about infringing uses.

The more interesting, and more difficult, question is the one the Court didn’t answer here: what happens if you do shut up? If there is no proof of bad intent? What if you’re just distributing software, with no evidence that you “actively encourage” your users to infringe you (though many do so); what happens then? We know that the requisite bad intent can be imputed to you if your software has “no substantial non-infringing uses”; but how can we tell whether that is or is not the case? If Grokster/StreamCast had not been so overt in their encouragement of infringement (as the next generation of developers will, surely, not be) could an intent to infringe been imputed to them based on the fact that most of what their users were doing was infringing? What constitutes “substantial non-infringing uses,” anyway?

There’s a real split on this one. The opinion for the Court is silent on the question; there’s no need, it says, to resolve this question now, given that there was evidence of bad intent in this case.

But three Justices (Ginsburg, Rehnquist, and Kennedy), concurring, do take a position: the Grokster/StreamCast software was not a “staple article of commerce” having “substantial non-infringing uses,” and it would therefore have been appropriate to presume an unlawful purpose even had there been no evidence of such. Their software was “overwhelmingly used to infringe,” “infringement was the overwhelming source of revenue from the products,” and there was no “reasonable prospect that substantial or commercially significant noninfringing uses were likely to develop over time.”

Three Justices disagreed (Breyer, Stevens (author of the Sony opinion), and O’Connor). “The evidence now before us shows that Grokster passes Sony’s test” – it is “capable of substantial or commercially significant non-infringing uses.” The evidence showed that 10% or so of the files shared over these networks were non-infringing; this figure, “if fixed for all time, might well prove insufficient,” but here there was a “reasonable prospect of expanded legitimate uses over time, . . . a significant future market for noninfringing uses of Grokster-type peer-to-peer software”: “swapping research information (the initial purpose of many peer-to-peer networks); public domain films; historical recordings and digital educational materials; digital photos; shareware and freeware; secure licensed music and movie files; news broadcasts past and present; user-created audio and video files; and all manner of free open content. works collected by Creative Commons.” Even without considering the “now-unforeseen noninfringing uses that develop for peer-to-peer software . . . the foreseeable development of such uses, when taken together with an estimated 10% noninfringing material, is sufficient to meet Sony’s standard.”

So it’s 3-3, with 3 abstentions, on that question – the question we all thought was at the heart of the case and which we expected the Court to resolve here.

"Exotic Mortgages" and The "Housing Bubble":

There has been much criticism lately about so-called "exotic mortgages" that are creating a "housing bubble" ((expressed by David, among others).

Although often lumped together, the two are distinct. And I'm not sure I see what the problem is here. I want to focus on the supposed harm of exotic mortgages, especially interest-only mortgages (which are said to create the housing bubble by allowing people to borrow "too much" and forcing up home prices).

The concern, as I understand it, is that people who have interest-only loans (for instance) are going to be hurt if home prices fall (although it is not clear why they would, if everyone is adopting the new mortgages--but I digress). The idea is that if housing prices fall, and if they have to sell their house, they will be forced to come up with a big wad of cash to make up for the shortfall. And so these exotic mortgages are said to be "bad." Now here's what I don't get:

Households have three basic sources of capital--human capital, financial capital (stocks and other financial investments), and their homes. For obvious reasons, there is a very high correlation between and individual's human capital and their home values--local real estate markets are tied very closely to local economic conditions (i.e., salaries/human capital). So, for instance, a few years ago, Boston simultaneously suffered a downturn in its high-tech sector, leading to layoffs and pay cuts, while naturally also reducing housing prices. Thus, Bostonians simultaneously suffered dramatic reductions in both the value of their human capital and residential real estate investments.

So, the correct strategy to minimize one's mortgage payment (such as by paying only interest and not making the additional principal payment?) and to instead invest the difference in a diversified financial portfolio of stocks or other financial assets that are not so closely tied to the local economy. It seems to me that it is not correct to pay down the principal on one's mortgage, which would increase the covariance of your human wealth with your home equity. In fact, it is likely that one of the reasons why housing prices have been rising is because the moribund stock market seems to be inducing some people to remove their assets from the stock market and to put them into residential real estate.

Moreover, money paid in as principal on your house (such as a downpayment) is dead capital--and the only way to get it back out to invest is to take out a home equity loan, which usually has a higher interest rate than it would be if you were just paying interest in the get go and using the saved principal payments for other purposes. So because of the time value of money, you are getting poorer when you pay down principal on your loan that does nothing for you, because you aren't getting any interest on this money. And this doesn't even take into account the "home equity trap" that may mean that you can't get approved for a home equity loan when you most need it, such as when you become unemployed.

And the primary wealth accumulation component of a house is the speculation appreciation in value, not the paid-down equity. Thus, that paid-down equity will do little to hedge against the upside or downside risk of property value fluctuations. So it seems to me that we want to encourage individuals to minimize their principal payments on their houses and instead to diversify that money into financial assets that will diversity away from the risk associated with human capital. In other words, rather than encouraging people to make worthless principal payments on their mortgages that do nothing for them, we would be better off encouraging them to invest in financial assets, and if their houses actually fall in value, then they can tap these savings if they need to make up the difference.

So the question of what happens if housing prices fall (or interest rates rise) is only half the question. The other half is what happens if housing prices don't fall that much, or interest rates don't rise that much? In that case, all of those who earned effective negative rates of return on piled-up principle payments on their home mortgages will be the ones who are worse off in an opportunity cost sense as compared to those who invested those funds. Obviously there is a risk issue here either way, as there always is. For instance, just a year or two ago Alan Greenspan was noting that Americans who had entered into 30-year fixed mortgages had paid millions of dollars in higher interest fees than they would have paid had they held variable-rate mortgages that would have allowed them to ride the interest rate market down.

So, it seems to me, rather than hand-wringing about exotic mortgages and housing bubbles in isolation, the relevant question is whether people have properly diversified their wealth holdings in case the housing bubble does burst and in case a fall in housing prices is offset by a rise in the price of financial assets. On that issue, I have seen little intelligent analysis recently.

Update:

Interesting and extended comment on my post at Shivering Timbers, which for some reason the Trackbacks didn't pick up. I commend the entire long version of the post, but here's a summary he sent me:

In summary, I think there are two flaws in your analysis.

First, most people don't think in terms of risk as "deviation of expected return" but rather the odds that an unforeseen event will have a negative impact on their lifestyle. Exotic mortgages (and any other strategy to increase the leverage of one's home) increase this lifestyle risk by increasing the odds that some negative event (job loss, etc.) might cause a forced-sale situation. Most people would consider losing their home a much more negative event than an unrealized decrease in the value of the home.

Second, even though exotic mortgages can be used for good or bad (just like any tool), your analysis supposes that people are using them as part of a well-considered asset diversification strategy. While I'm not aware of any data specifically addressing this point, everything I've seen (such as the dramatic increase in the percent of homes bought purely for investment) suggests that this tool is in practice being used to buy more home(s) than people could otherwise afford, in the hope of future asset appreciation. In other words, the leverage is being employed to increase asset concentration, not decrease it. This is classic bubble behavior.

Private Schooling in the Developing World:

Fascinating story by James Tooley describing the research he and Pauline Dixon are doing on the growth of private schools for the poorest of the poor in the developing world. The research, and the efforts it describes, are among the most fascinating and important efforts to improve the plight of the poor around the world:

The accepted wisdom is wrong. It ignores the remarkable reality that the poor in Africa have not been waiting, helplessly, for the munificence of pop stars and western chancellors to ensure that their children get a decent education. Private schools for the poor have emerged in huge numbers in some of the most impoverished slums and villages in Africa. They cater for a majority of poor children and outperform government schools, for a fraction of the cost.

My research has found this in Kenya — where the international community might excuse the inadequacy of state education as a blip while free primary education beds down. But it’s as true in Ghana and Nigeria too — where free primary education has been around for a long time, supported by generous handouts from the British government and the World Bank.

Monday, June 27, 2005

Blogger Phil Carter Recalled to Active Duty:

Phil Carter (Intel Dump), a blogger and a former student of mine:

On Thursday, I received orders from the Army mobilizing me for Operation Iraqi Freedom. These orders followed an earlier set, cut on Tuesday, which transferred me from the Army's individual ready reserve into the 101st Airborne Division. I'm scheduled to report for active duty in a little under 3 weeks to Fort Campbell, Kentucky. After some period of pre-deployment training and preparation, I will deploy with my unit to Iraq.

All my best wishes to Phil -- do good, and stay well.

Phil will keep posting to Intel Dump, though he'll also bring in cobloggers.

1 Comments
Russia Investigating Whether Book Containing Jewish Law Is Illegal:

Ha'aretz reports:

The Moscow district prosecutor has ordered an examination into the Shulhan Arukh -- a code of Jewish halakhic law compiled in the 16th century -- to ascertain whether it constitutes racist incitement and anti-Russian material.

The prosecutor ordered the probe against a Jewish umbrella organization in Russia for distributing a Russian translation of an abbreviation of the Shulhan Arukh. . . .

The inquiry was launched following a letter signed by 500 public figures, including some 20 members of the nationalist Rodina party, urging the district prosecutor to outlaw the Jewish religion and all the Jewish organizations operating in Russia. . . .

Related Posts (on one page):

  1. Volokh Conspiracy Gets Results!
  2. Russia Investigating Whether Book Containing Jewish Law Is Illegal:
7 Comments
Burt Neuborne on the Ten Commandments:

A sensible, insightful, and well-written post at SCOTUSblog; I don't entirely agree with it, but it's much worth reading. Neuborne is a former National Legal Director at the ACLU, but this is definitely not the standard ACLU line.

4 Comments
P2P, Alcohol, and Guns:

Rebecca Tushnet has an excellent post on SCOTUSblog that asks: Following the MGM v. Grokster decision, just what may technology companies safely say in their ads, press releases, and the like? And what statements should they avoid, for fear that a jury will eventually find that the statements provide "evidence of stated or indicated intent to promote infringing uses"?

Or say that the same rule ends up being applied to distribution of other products. (Right now it's just a copyright law rule, but courts often create such rules reasoning by analogy; the rule might prove influential in other fields as well.) You're an alcohol manufacturer. You know that some of your product is consumed by underage drinkers. You make money from them, because there's no way you can avoid it.

Most of your buyers use the alcohol legally, not illegally, so in this respect you're likely different from Grokster; but while the Supreme Court discussed how much of Grokster's user base was likely violating the law, intentional promotion liability can apply without regard to whether most users are illegal — intentionally promoting illegal uses by even a minority of users could lead to liability for those uses. What can you safely put in your ads, and what might lead to liability on the theory that it shows an intent to promote underage drinking (even if you personally know you have no such intent)? Remember that the intent needn't be expressly "stated," but may simply be "indicated," as it is in Grokster itself.

Likewise if you're a gun manufacturer. You know some of your guns — a small fraction, but some — are used by violent criminals. (There are about 200+ million guns in the country, and about 400,000 violent crimes using guns per year, so the great majority of guns aren't used to commit a violent crime.) You make money from all buyers, legal or illegal. What can you safely put in your ads, and what might lead to liability on the theory that it shows an intent to promote the buying of guns for illegal purposes (again, even if you know you don't have such an intent)?

UPDATE: Corrected "500,000 gun crimes" to 400,000 — I had been working from memory, and my recollection was from years when crime was higher than in 2002, the latest year for which I found data (see table 66, which reports on robberies, assaults, and rapes, both completed and attempted, and add some 10,000-odd firearms homicides). I also changed "gun crimes" to "violent crimes using guns" to better track my point, which was focused on violent crimes. No-one has any idea how common, say, pure gun law violations (from illegal concealed carry to improper storage while taking the gun to the gun range to failure to properly register) are. My concern here is with violent crime, because that's what most people are really worried about, and what gun manufacturers wouldn't want to be seen as promoting.

Related Posts (on one page):

  1. P2P, Alcohol, and Guns:
  2. Grokster Decision:
12 Comments
Words Straight Guys Don't Use:

I was just reading a very interesting post by a woman lawprof, and I noticed her saying that she "adore[s]" a figure of speech in someone else's post. From her, it seemed perfectly proper, and not even fulsome, just a nice compliment.

But then I wondered: Would I ever use that term? Somehow it seemed like something that men don't say. I'm not saying this reaction is logical; it was just the instant reaction that I got from my internal idiom checker, the sort of thing that tells us what sounds normal and what sounds stilted, no matter how grammatically or semantically valid it might be. I'd be quite willing to say "love," though that's a bit too effusive for me. I'm certainly happy to praise in other ways. But somehow my guide draws the line at "adore."

We ignore at our peril the advice these internal idiom checkers give us -- but maybe I've gotten this wrong. So what do you folks think? Do you have this reaction? Is there a relation to sexual orientation (or, to be more precise, to the distinctive "gay culture" to which not all gays belong)?

Is this just my own idiosyncracy, perhaps because I've heard "adore" more often from women than from men (it's not a very common term of praise, but my mother uses it on occasion), and perhaps on a few occasion from gays I know? Or do others have the same reaction (whether they're straight men, or others who imagine whether they'd find it odd if they heard a straight man say it)?

44 Comments
Justice Scalia and Monotheism:

On many occasions, opinions that aimed to uphold government religious speech against Establishment Clause challenge have stressed that such speech was "nondenominational," or have argued that the Establishment Clause bars discrimination among religions — even in government speech — but not discrimination in favor of religion generally.

But this was always something of a fiction. Every reference to "God" carries a theological view that excludes not just atheists but also polytheists (such as Hindus and Shintoists) and religious people whose religious views don't involve a God (such as Buddhists). There are no nondenominational religious statements, except perhaps in jokes of the "whoever You are, male, female, neuter, animate, inanimate, many, one, existent, or nonexistent" variety.

To his credit, Justice Scalia's dissent in McCreary acknowledges this, suggests a dividing line (endorsement of monotheism is fine, endorsements of specific monotheistic religions is not), argues that this line is supported by original meaning and history, acknowledges that this may offend people who adhere to nonmonotheistic religions, but argues that this shouldn't pose a constitutional problem. Yet the liberals rightly ask: Why does this history so clearly support a constitutional preference for monotheism (which includes Christianity, Judaism, and Islam) but not for Christianity specifically?

Scalia points to a good deal of historical evidence (in my view very powerful evidence) that the Framers and subsequent generations endorsed some government religious speech. And he explains his "monotheism" rule by pointing out that the speech generally referred to "God" or versions of that, and not "Jesus Christ."

But there were quite a few contemporaneous state constitutions that preferred Christians over non-Christians (some preferring Protestants over non-Protestants). There was influential commentary in the 1800s saying that the Constitution tolerated endorsement of Christianity specifically; and Justice Scalia has long stressed the importance of post-enactment interpretations as well as of the original meaning. More broadly, when Christians talk about "God," they may be doing this not because they understand there to be some "endorsement of monotheism OK, endorsement of Christianity forbidden" rule, but because their Christian theologies (or even their esthetics) leads them to use the term "God" in certain contexts more than the term "Jesus Christ."

Jack Balkin cricitizes Justice Scalia on this score, and while I don't entirely agree with his views, it seems to me there is much to them. Certainly an originalist may well conclude that, whether he likes it or not, government endorsement of Christianity is permissible. But Justice Scalia's position that the Establishment Clause tolerates endorsement of monotheism but not of Christianity, while more palatable to many today (likely including Justice Scalia himself), is also less persuasive as an originalist matter.

UPDATE: Rick Garnett defends Scalia at SCOTUSblog.

20 Comments
"I Know It When I See It":

Justice Potter Stewart is famous for having proposed the "I know it when I see it" test about what constitutes obscenity (i.e., constitutionally unprotected pornography). Some have characterized the endorsement test, or the Establishment Clause caselaw dealing with religious speech more broadly, as reflecting the same view.

Many people who know the quote, though, don't know the follow-up: Nine years later Justice Stewart joined the dissent in Miller v. California, and would have thus held that such material is categorically constitutionally protected (at least where no unwilling viewers or underage viewers are involved). And the dissent's reasoning focused largely on the vagueness of the existing tests for what's constitutionally protected and what's not.

So Stewart thought he knew it when he saw it. But after seeing enough cases, it seems that he either lost confidence in his own ability to know what should be protected, or concluded that such a test was in any event no way to run a legal system.

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Breyer's God and Bright-Line Rules:

A New York attorney of my acquaintance observed the following:

At one point in his concurring opinion in the Texas 10 commandments display case, Justice Breyer refers to "the Diety." He spells it "Deity" elsewhere in the opinion. Apparently bright-line rules are not appropriate in this sensitive area.

Sen. Cornyn (R-TX) Proposes Limits on Eminent Domain:

Sen. Cornyn is introducing a federal bill (S. 1313, "The Protection of Homes, Small Businesses, and Private Property Act of 2005") that would bar "economic development" takings:

(a) . . . The power of eminent domain shall be available only for public use.

(b) . . . In this Act, the term "public use" shall not be construed to include economic development.

(c) . . . This act shall apply to (1) all exercises of eminent domain power by the Federal Government; and (2) all exercises of eminent domain power by State and local government through the use of Federal funds.

As I read this, the bill would only apply when states and local governments use federal funds to pay for the taken property (since that's the only time the "eminent domain power" is "exercise[d]" "through the use of Federal funds"); it wouldn't matter whether they use federal funds for the rest of the development project. I suspect that this means the effect on state and local takings will be modest, though perhaps the symbolic impact might be more substantial.

Here's Sen. Cornyn's floor statement and his press release.

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Court Gets Right Result on Cable Case:

The decision in National Cable Telecommunications Assoc. v. Brand X Internet Services, was a victory for technological progress, and for property rights. For nearly a decade, some Internet predators (including, for a while, AOL) claimed that the government should give them the right to sell ISP services delivered on a broadband network which was built by someone else. In other words, if A builds a restaurant, then B claims that he has the right to sell food in A's restaurant, as long as B pays A a "reasonable" fee for access to the restaurant. In a broadband context, the government-abetted piracy was called "Open Access", and claimed as giving consumers more choice. But the more accurate term was Forced Access, since B would use government force in order to intrude B's business onto A's property. In the long run, Forced Access would have drastically reduced consumer choice, since Internet companies would be reluctant to innovate and take risks to build infrastructure, if the government might force an innovative company to share the infrastructure with another company that did not innovate technologically, but did exercise political clout.

The Court's decision today did not address the merits of Forced Access, but instead deferred to the judgement of the Federal Communications Commission in interpretting an ambiguous statute. (Whether broadband is an "information service" or a "telecommunications service.") The F.C.C. did act on a policy basis. Back in 1999, I wrote a lengthy Policy Study for the Heartland Institute warning that a policy of Forced Access could harm the rapid development of broadband connectivity. Fortunately, the covetous companies that demanded Forced Access enjoyed only mild success in their preferred forum (city councils) and their schemes were defeated when the Federal Communications Commission intervened.

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Coming Soon to a Ninth Circuit Near You:

Here's the Ninth Circuit's logo:

The Ninth Circuit is being sued on the grounds that this violates the Establishment Clause, because the tablets allude to the Ten Commandments and thus endorse religion. How will the case come out in light of today's decisions?

Please comment only if you have read the decisions. I'm looking for actual legal analysis (even if it's motivated by a desire to expose the errors in one or another position). No general fulminations about those awful Justices/politicians/whoever (whether Left, Right, or pox-on-both-their-houses), please. Reference to recent lower court cases is perfectly fair game — there was one recent one that is potentially on point — but it would be especially interesting to see how today's cases affect the result.

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Eminently Quotable, But Is It Sound?

Justice O'Connor, concurring in the case that struck down the Kentucky Ten Commandments display (paragraph breaks added, emphasis added), writes:

Reasonable minds can disagree about how to apply the Religion Clauses in a given case. But the goal of the Clauses is clear: to carry out the Founders' plan of preserving religious liberty to the fullest extent possible in a pluralistic society.

By enforcing the Clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat. At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish. The well-known statement that "[w]e are a religious people" has proved true. Americans attend their places of worship more often than do citizens of other developed nations, and describe religion as playing an especially important role in their lives. Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?

I'm sure this will be quoted often — but is it really apt? For much of our nation's history our system has been (by and large) little legal coercion of religious practice, coupled with routine government references to religion, including displays of Ten Commandments memorials; displays of creches; graduation prayers and even daily prayer in school; Presidential preclamations and Congressional acts praising religion; references to God on coinage, in the National Anthem and elsewhere, references that likely contained, at least at the time, some message of endorsement of theism; and more. And this has continued until recently: I suspect that standalone creches were quite common until the 1989 decision striking them down, graduation prayer was quite common until the 1992 decision striking it down, and Ten Commandments displays, even ones that the Court would now consider unconstitutional, were fairly common until today.

What's more, little legal coercion of religious practice, coupled with routine government references to religion is the system that Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas would adopt. Justice O'Connor's system is much less tried and true.

Now Justice O'Connor might well be right on her bottom line: Perhaps barring Ten Commandments displays, and similar government endorsement of religion, would further strengthen American traditions of religious tolerance, and would increase the religiosity of Americans to boot. (Query why increasing the religiosity of Americans should be any concern of the Court's; perhaps as to that, she meant to ask why supporters of religion should want to trade away a system that has served them so well.)

But it seems to me far from clear that her argument for that bottom line works here. That a routine-endorsement-of-religion system has done good things in the past (compared to systems whose flaws went far beyond endorsement of religion) doesn't mean that a no-routine-endorsement-of-religion system would yield equally good results in the future.

2 Comments
Nifty Prose,

from Justice Souter's opinion in the Kentucky Ten Commandments case (paragraph break added):

The Counties' second proffered limitation can be dispatched quickly. They argue that purpose in a case like this one should be inferred, if at all, only from the latest news about the last in a series of governmental actions, however close they may all be in time and subject.

But the world is not made brand new every morning, and the Counties are simply asking us to ignore perfectly probative evidence; they want an absentminded objective observer, not one presumed to be familiar with the history of the government's actions and competent to learn what history has to show. The Counties' position just bucks common sense: reasonable observers have reasonable memories, and our precedents sensibly forbid an observer "to turn a blind eye to the context in which [the] policy arose."

2 Comments
ScrappleFace on the Ten Commandments.

Excellent.

Ten Commandments and Modern Law?

I thought I'd repost something I discussed a couple of years ago, related to one particular argument about the Ten Commandments. This is not a core argument in the opinions in these cases, but it's popular enough that I thought I'd speak to it here.

I have often heard it said that the Ten Commandments are an important part of the foundation of American law, and I think that's true to a point. But here's a quick question for you: How many of the Ten Commandments are actually implemented as legally binding obligations under modern American law? (To avoid confusion, let's focus on the list in Exodus, chapter 20, King James Version, available here.)

It turns out that the answer today is pretty much three, #6, #8, and #9:

1. "I am the LORD thy God, which have brought thee out of the land of Egypt, out of the house of bondage. Thou shalt have no other gods before me." This is fortunately not legally enforceable; in fact, the First Amendment would prohibit the government from enforcing this.

2. "Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth. Thou shalt not bow down thyself to them, nor serve them . . . ." Again, this is fortunately not legally enforceable, neither as to the prohibition on graven images, nor on the visiting of the fathers' sins upon the sons.

3. "Thou shalt not take the name of the LORD thy God in vain; for the LORD will not hold him guiltless that taketh his name in vain." Some states have enacted blasphemy laws in the past, though to my knowledge they've generally been limited to public blasphemy. Fortunately they are not enforced today.

4. "Remember the sabbath day, to keep it holy. Six days shalt thou labour, and do all thy work: But the seventh day is the sabbath of the LORD thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates . . . ." This is generally not the law today; some states still require some businesses to be closed Sundays, but there's no general prohibition on work on the Sabbath -- no-one is going to arrest you for working from home on Sundays, and that too is very good.

5. "Honour thy father and thy mother . . . ." Not legally enforceable.

6. "Thou shalt not kill." Legally enforceable, though of course with the usual qualifiers.

7. "Thou shalt not commit adultery." Not in practice legally enforced today, though I believe that some states do still have criminal prohibitions on adultery on the books. There are plausible arguments for enforcing these prohibitions, and also for considering adultery in various civil contexts (in property settlements in divorce and the like), though I think that on balance the current approach is better for a wide range of practical reasons.

8. "Thou shalt not steal." Legally enforceable.

9. "Thou shalt not bear false witness against thy neighbour." Legally enforceable, at least in a wide range of contexts (such as perjury and libel).

10. "Thou shalt not covet thy neighbour's house, thou shalt not covet thy neighbour's wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor any thing that is thy neighbour's." Not legally enforceable -- can you imagine a law prohibiting coveting?

So there it is: Many of these rules may be morally good, and all may be theologically important to some people. But only three (no killing, stealing, and false witness) are currently enforceable under American law, though there are plausible arguments that adultery should also be included.

25 Comments
Discussion on the Ten Commandments Cases at SCOTUSblog:

I expect the others' posts there to be excellent -- do check it out if you're interested in the subject. I'm posting a bit there myself, as well as here; my apologies for any duplication that you'll see if you're reading both that discussion and this blog.

Divisiveness and the Ten Commandments Cases:

The opinions joined in these cases by Justices Stevens, O'Connor, Souter, Ginsburg, and Breyer routinely stress that Ten Commandments displays and the like often threaten to produce "religious divisiveness," and that the Establishment Clause should be read as making such divisiveness into a reason for invalidating (at least some) government actions. Past Supreme Court cases have made similar claims.

But I wonder: What has caused more religious divisiveness in the last 35 years -- (1) government displays or presentations of the Ten Commandments, creches, graduation prayers, and the like, or (2) the Supreme Court's decisions striking down such actions?

My sense is that it's the latter, and by a lot: All these decisions have caused a tremendous amount of resentment among many (though of course not all) members of the more intensely religious denominations. And the resentment has been aimed not just at the Justices but at what many people see as secular elites defined by their attitudes on religious matter. The resentment is thus a form of religious division, and I've seen more evidence of that than I have of religious division caused simply (i.e., setting aside the litigation-caused division) by the presence of Ten Commandments displays, creches, or even graduation prayers.

Isn't there something strange about a jurisprudence that in seeking to avoid a problem (religious divisveness) causes more of the same problem, repeatedly, foreseeably, and, as best I can tell, with no end in sight?

Now it may well be that the Court's actions are justifiable under some other theory. There may well be some other reason why government use of such religious symbols must be struck down despite the religious divisiveness of such government actions. But it seems mighty odd for the Court to strike the actions down in the name of a goal -- avoidance of religious divisiveness -- that the Court's actions are themselves undermining.

I should stress that I am not trying to take in this post, or other posts, a definitive view on how the Establishment Clause should be read in cases involving government use of religious symbols or statements. Rather, I'm trying to provide what I hope are helpful comments on particular arguments that I've heard -- comments that might be of use to people who are drawn to different bottom lines. I've found somewhat more to criticize in the no-posting-of-the-Ten-Commandments opinions today than in the OK-to-post opinions. But please take my posts for what they are, which is specific comments on specific arguments, not overall judgments on the matter.

29 Comments
"Crossover Sensation, Justice Breyer":

It's one of my favorite lines about Supreme Court Justices, and it seems especially apt today, given Breyer's joining the conservatives minus Justice O'Connor to uphold one of the Ten Commandments displays that the Court was considering. (He didn't fully cross over; rather, he applied what seemed like O'Connor's endorsement test, but reaching the opposite result than O'Connor did. Still, when the name of the game is counting to five, Justice Breyer's vote is crossover enough.)

John Elwood, then at Baker & Botts, deserves credit as the line's author.

Grokster Decision:

It's a unanimous victory for the entertainment industry plaintiffs -- but actually not quite as one-sided as all that. The full court says: even if you meet the Sony standard (i.e., even if you have "substantial noninfringing uses"), you can still be liable for inducing copyright infringement, if there's evidence that you actively encouraged or promoted infringing conduct. And there is such evidence in this case.
More interestingly, though, the Court is split on the question: Caqn you be liable for distributing file-sharing software if you are NOT actively inducing/encouraging/promoting its use for infringing purposes. Three Justices (Ginsburg, Rehnquist, Kennedy) say: Yes, you can, if the product is primarily used for infringement. three of the Justices (Breyer, Stevens, O'Connor) say: No, you can't, as long as there's evidence that the product is capable of being used in a noninfringing way.
So it's a 3-3 split on that question. The other 3 Justices (Scalia, Souter, Thomas) take no position on this (on the grounds that it's not necessary to decide *this* case, where there is such evidence of inducement/encouragement. Though there is a footnote in which they seem to suggest that they're on the Breyer side of the line. Footnote 12 (thanks to Michael Froomkin for pointing this out to me):

"Of course, in the absence of other evidence of intent, a court would be unable to find contributory infringement liability merely based on a failure to take affirmative steps to prevent infringement, if the device otherwise was capable of substantial noninfringing uses. Such a holding would tread too close to the Sony safe harbor."

Related Posts (on one page):

  1. P2P, Alcohol, and Guns:
  2. Grokster Decision:
Terms That Have Become Unmoored from Their Etymology in Our Memory:

The classic examples are "dialing a phone number" (or dial tone), "cc" when used on e-mail (originally "carbon copy"), "it's your dime" (or, older, "your nickel"), and "E-ticket ride" (though that's less common); there surely are many more.

I mention this because I noticed a future candidate: "Stay tuned," used on a blog. It still hasn't fully departed from its original etymology, since many people still use radios. The blog usage is thus just the first step of the process, which is adaptation to a new environment, where the etymological meaning is no longer the literal one. But people will shift more and more to network-based "radio" reception, tuning will become a thing of the past, but "stay tuned" (for text as well as for sound) will remain.

37 Comments
Apparently a Unanimous Loss for Grokster,

says SCOTUSblog -- not what I would have predicted. (I wasn't sure about the bottom line, but I expected at least some votes in favor of Grokster.)

8 Comments
Ten Commandments:

SCOTUSblog reports that the Court has struck down one of the Ten Commandments displays it was considering; no report yet about the other.

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Why Rehnquist Won't Retire:

For what its worth, some frank predictions I have heard as to why Rehnquist won't retire:

"He has been there long enough to know that when you leave the Court you shrivel up and die. He has seen what happened to Blackmun, Marshall, etc. If he leaves, he'll be dead in six months. Without the Court, most Justices have no life."

"Former Supreme Court Justices are nobodies, unlike former Congressmen and Cabinet Secretaries. For someone whose whole life has been built around the Supreme Court and Washington, he can't accept being a nobody. They even kick them out of the Supreme Court Building."

"He's so stubborn, the only way he will leave is when it is clear he is doing it on his terms, rather than being pushed."

On the hand, it has also been observed that these reasons would not apply to O'Connor--who who has a life outside Washington and outside the Court, and could retire to her ranch and grandkids in Arizona.

Disqualifying Gonzales:

Ramesh Ponnuru raises an atypical objection to President Bush nominating Alberto Gonzales to the Supreme Court should a justice retire: He would have to recuse himself in too many cases. Unless Gonzales largely abdicated his responsibilities as White House Counsel and Attorney General (highly doubtful), he could be disqualified from participating in many high-profile and controversial cases arising out of Bush Administration policy.

A Justice Gonzales would have to recuse himself from cases dealing with a wide range of issues — from the Patriot Act to partial-birth abortion — because of his high-level service in the Bush administration.

Federal law is clear: No federal judge, including any Supreme Court justice, may participate in a case if he "has served in governmental employment and in such capacity participated as counsel, advisor or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy." In addition, justices are to recuse themselves "in any proceeding in which his impartiality might reasonably be questioned." Given that Gonzales was Bush's White House counsel for the entirety of his first term, and is now attorney general, that means he will have to decline to participate in a lot of important cases. . . .

Gonzales might be compromised on campaign finance, on Patriot, on affirmative action, on military tribunals for terrorists, and on the disclosure of executive-branch documents. Maybe the Bush administration isn't deeply interested in all of these issues, but it surely wants to maximize its odds of prevailing on some of them. And nobody can know what other issues demanding recusal might come before the Court — or rather, before eight of its justices.

Of course, the primary conservative objection to Gonzales is that he's too "liberal" (or insufficiently "conservative") — or, at least, that there's unsufficient basis upon which to assess his judicial philosophy. The two concerns are related, however. Conservatives want to ensure that the next justice is a solid conservative vote on many issues, particularly if Chief Justice Rehnquist retires. If Gonzales is forced to recuse himself, that is one less potential conservative vote in any given case. So the recusal issue is one more reason why conservatives would be wary of a Gonzales appointment.

Setting aside ideological concerns, I think potential recusal is a serious issue, though I do not think it should be disqualifying. There's a good reason for wanting an odd number of justices -- it avoids tie votes and the doctrinal confusion that can result. So, all else equal, it would be preferable to have a justice who would not be required to recuse himself or herself in a large number of cases. Such a concern would be particularly strong when, as now, one could expect a sizable number of close cases in which the ninth vote could make the difference.

Four-four votes do not particularly cut in one ideological direction or the other because it requires a Court majority to reverse a lower court judgment. A tie vote leaves the lower court's decision undisturbed. Whether this helps or hurts the Bush Administration or any other party to a given case depends on how the lower court ruled.

Potential recusal should not be an automatic disqualier, however. There have been quite a few Justices with executive branch experience, including Chief Justice Rehnquist. That a given nominee might have to recuse in a few cases during his or her first few years on the bench is legitimate concern, but I don't think it should be enough, by itself, to disqualify any nominee.

16 Comments
Conservative Documentarians:

Interesting profile in the NY Times on several new conservative filmmakers, including Evan Coyne Maloney's expose of campus speech codes in "Brainwashing 101."

The Lawsuit of the Rings:

Peter Jackson versus New Line Cinema. Details in the NYT. (Peter Jackson fans take note, the trailer for his new film -- a "King Kong" remake -- debuts this week.)

Kelo Afternath:

Freeport moves to seize 3 properties: Court's decision empowers the city to acquire the site for a new marina:

FREEPORT - With Thursday's Supreme Court decision, Freeport officials instructed attorneys to begin preparing legal documents to seize three pieces of waterfront property along the Old Brazos River from two seafood companies for construction of an $8 million private boat marina.

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The tracts of land would be used for a planned 800- to 900-slip marina to be built by Freeport Marina, a group that that includes Dallas developer Hiram Walker Royall. He would buy the property from the city and receive a $6 million loan from the city to develop the project.

Potentially Troubling, But Hard To Figure Out Without More Information:

Several people pointed me to this story:

In 2001, [William C.] Bradford was hired as an associate professor at Indiana University School of Law-Indianapolis. . . . [H]e's under fire, he said, because his ideas about the war on terror do not conform to views held by [two tenured professors]. . . . Bradford said the two [professors] voted consistently to deny him tenure, despite good academic ratings.

In March 2004, he said, he was told during a review that someone described him as "uncollegial."

That's the new kiss-of-death buzzword. "Faculty seeking to get rid of others claim they are not collegial," Bradford said. . . .

Bradford wrote a defense of the flag after 9/11 — one that hung in the school lobby until some faculty objected.

He refused to sign a letter sent by [one of the professors] defending Ward Churchill. He's the Colorado professor who called victims of 9/11 "little Eichmanns." . . .

The difficulty in this case, as in many others, is that it's so hard to tell exactly what's going on here. Actually, the story isn't even clear on what the current state of Bradford's tenure case is — was he denied tenure? Is the matter still being considered?

It's also not clear how strong the evidence is that the tenure decision was influenced (or is likely to be influenced, if the decision is still in the future) by the perceived lack of collegiality. From the story, it sounds like one stray comment, and it's not clear whether it was linked to political disagreement or just to some personal clash. (For some thoughts on whether true collegiality concerns should be considered in tenure decisions, see this post.) The story also quotes a professor who's saying that people are trying to drive Bradford away, but again it's hard to tell exactly what evidence there is that they're trying to drive him away because they disagree with his ideology (as opposed to, say, thinking that his scholarly work is badly reasoned).

Bradford does have a lot of publications for a junior scholar (the norm is two to five in the years before tenure, and he has much more than that), though I can't speak to their quality or meatiness. But in any event, without knowing more about how strong his tenure case is, how strong the evidence is that it's being blocked for political reasons, or for that matter what the status of his case is, it's hard to pass judgment. I wish that the Star piece gave us a little more to work with.

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Comments Policy:

I'm generally very pleased with our experimental enabling of comments. Nonetheless, I want to stress to people that we reserve the right to remove comments, in our own discretion (and the converse right to be busy enough with other things that we don't bother removing certain comments even if, given enough time, we might have).

Rudeness is obviously one cause for removal; a comment's being off-topic is another. But we may also remove comments in some other situations, for instance, when someone frequently posts things that are chiefly rants, fairly wild exaggeration, or invective (even without the use of major vulgarities).

Our goal is to provide an interesting and pleasant environment that can help inform readers. To do that, we'll occasionally have to exercise our editorial discretion. Naturally, there's always a risk that this discretion will be used erroneously, no matter how well-intentioned the editor. But I think that discussion groups (especially on the Internet, but also off it) generally need an editor who'll occasionally make such judgments.

And, remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.

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Sunday, June 26, 2005

Mind-boggling quote

(of course, if it's accurate; UPDATE: The Age has confirmed that the quote is indeed accurate, and a comment to this post points to an audio file of the interview).

Recall that Douglas Wood is an Australian who had until recently been held hostage in Iraq; after being released, he apparently publicly called his captors "assholes." Here's what the editor-in-chief of the Australian daily The Age (Andrew Jaspan) supposedly had to say about this on Australia's ABC radio:

I was, I have to say, shocked by Douglas Wood's use of the a---hole word, if I can put it like that, which I just thought was coarse and very ill-thought through and I think demeans the man and is one of the reasons why people are slightly sceptical of his motives and everything else.

The issue really is largely, speaking as I understand it, he was treated well there. He says he was fed every day, and as such to turn around and use that kind of language I think is just insensitive.

What sort of person would make an argument like that?

If it turns out the quote is inaccurate or taken out of context, please let me know. Thanks to Tim Blair for the pointer.

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Should "Dangerous" Information Be Censored?

This question is posed by Laura K. Donohue in today's Washington Post. Her answer? No, at least not in the case of biological threats.

Biological information and the issues surrounding it are different. It is not possible to establish even a limited monopoly over microbiology. The field is too fundamental to the improvement of global public health, and too central to the development of important industries such as pharmaceuticals and plastics, to be isolated. Moreover, the list of diseases that pose a threat ranges from high-end bugs, like smallpox, to common viruses, such as influenza. Where does one draw the line for national security? . . .

Terrorists will obtain knowledge. Our best option is to blunt their efforts to exploit it. That means developing, producing and stockpiling effective vaccines. It means funding research into biosensors -- devices that detect the presence of toxic substances in the environment -- and creating more effective reporting requirements for early identification of disease outbreaks. And it means strengthening our public health system. . . .

Keeping scientists from sharing information damages our ability to respond to terrorism and to natural disease, which is more likely and just as devastating. Our best hope to head off both threats may well be to stay one step ahead.

As a general matter, I am inclined to think she is right. Knowledge is difficult to suppress (and that's a good thing!). In all but the most extreme circumstances, I suspect the costs of restraining scientific inquiry and research results are likely to be greater than any consequent risk reduction. Yet as scientific knowledge advances, the pressure to control "dangerous" knowledge will increase, just as the ability to control it declines.

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Assessing the Supreme Court Short List: On Slate, Emily Bazelon and David Newman summarize the records of judges reputed to be on The Supreme Court Short List. (Hat tip Instapundit.) Some useful background information, though the conventional wisdom (CW) about these matters is often wrong. I also think it is going to be very hard to predict whether any particular Bush nominee is going to be a Scalia-type judicial conservative, or a Thomas-type originalist/federalist. Bazelon and Newman (like most everyone else) pay no heed to the difference. Will the President?

By "judicial conservative" I mean a judge who advocates great deference to the majoritarian legislative branches, and who would enforce only enumerated rights. Such a judge might also be reluctant to enforce even enumerated rights against the states.

By "originalist/federalist" I mean a judge who believes in reading the text according to its original meaning whether that leads to upholding or striking down particular legislation. Such a judge might also be more open to the enforcement of the unenumerated rights against the federal government (via the Ninth Amendment) and enumerated and unenumerated rights against the states (via the Privileges or Immunities Clause).

I do not mean to suggest that either Justice Scalia or, especially, Justice Thomas fit neatly or consistently into one of these categories. And I would not place too much stress on the protection of unenumerated rights in distinguishing one type from the other. Many originalist/federalists are pretty conservative about unenumerated rights. What matters most is the majoritarianism of the "judicial conservative" and the originalism of the "originalist/federalist" as well as the latter's willingness to judicially enforce federalism limitations on Congress. Still, in Troxel v. Granville, Justice Scalia dissented from the protection against a state of the unenumerated right of a parent to raise her child as she saw fit, while Justice Thomas was in the majority.

I have enabled comments for those who have a knowledgeable take on any of these candidates, or on Bazelon & Newman's analysis. (This is not the forum to debate the merits of, or relationship between, judicial conservatism and originalism/federalism.) I am especially interested in learning from those who have knowledge of any of these judges if they think the judge they know to be more "judicial conservative" or majoritarian like Scalia or more "originalist/federalist" like Thomas. When a nominee is selected, I am almost certain to be interviewed, as will other law profs on the VC. We could use as much information on which to base an opinion as possible.
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