Saturday, July 30, 2005

The Mystery of the Bobbleheads: Can someone explain to me why people seem to be willing to pay several hundred dollars a piece for plastic dolls given away for free by a magazine? I am referring, of course, to the Supreme Court bobblehead dolls distrubuted by The Green Bag. I'm a subscriber to and a big fan of The Green Bag, and I can see why a lawyer might want to pay $20 or even $30 for a bobblehead doll of a famous judge. It's an amusing conversation piece, and that's worth twenty bucks. But why are people paying over $300 for these dolls? What am I missing?
Good Question:

I've wondered this too.


Friday, July 29, 2005

How About the Kelo Song?

By Brett Talley.

Related Posts (on one page):

  1. How About the Kelo Song?
  2. "The Interstate Commerce Blues,"
"The Interstate Commerce Blues,"

to the tune of "House of the Rising Sun," by libertarian lawprof Tom Bell.

The Lorax:

Jonathan Adler reconsiders the lessons of The Lorax.

Fantasy Football Widows:

This, from Christine Hurt at Conglomerate, is hilarious. Be sure to read the comments.

And my poor wife--I'm guilty on both counts.

More on Original Understanding of the Bankruptcy Clause:

Professor Bruce Mann has taken issue with my characterization of the original understanding of the Bankruptcy Clause of the Constitution. Having re-read my post, and read his comment, I'm not sure that I understand what he says in his comment that is different from what I said in my post. Perhaps there is a difference in language or emphasis between them, but I'm not sure I see what is "historically inaccurate" about what I said versus what he said.

In my original post I said that the Bankruptcy Clause was both a pro-creditor and pro-debtor provision. My comments in the post were focused on the statement in the article that I linked. The article was about consumer bankruptcy, and it states, "The Founding Fathers believed that bankruptcy relief was every citizen’s right" and then implies that this is the reason it was included in the Constitution in Article I, section 8. In my post, I focused on the pro-creditor aspects of the Bankruptcy Clause because this is the aspect of it that is most unfamiliar to modern readers (and so I thought would be most interesting to VC readers), but I also state that it had pro-debtor aspects.

To the extent that the Bankruptcy Clause was a pro-debtor provision, it is clear that it was intended for merchants, but it was unclear whether it applied to consumer debtors. I clearly note this pro-debtor purpose, especially for merchants, most expressly in the second paragraph of my excerpt from my article on the topic, but elsewhere as well. I understand Mann to be saying the same thing. He writes, "Although bankruptcy in Great Britain applied only to commercial debtors, bankruptcy statutes in the American colonies and states were mixed–some applied only to debtors in commercial occupations, others applied to all debtors." So, in other words, the British definition of the term took the narrower meaning, and some colonies followd the narrower interpretation. I noted the same thing in my post:

[Continue Reading More on Original Understanding of the Bankruptcy Clause under Hidden Text]


Related Posts (on one page):

  1. More on Original Understanding of the Bankruptcy Clause:
  2. Article on Bankruptcy Reform and Original Understanding of the Bankruptcy Clause:
Jonathan Rauch on the Future "Conservative" Supreme Court:

A characteristically thoughtful and interesting piece (excluding from the consideration, of course, the small parts that quote yours truly).

Privilege Claim and Roberts Memos:

An L.A. Times article says:

The White House is citing the attorney-client privilege as the basis for refusing to reveal memos written by Supreme Court nominee John G. Roberts Jr. when he was representing the government before the high court. At the time, Roberts was the top deputy to Solicitor Gen. Kenneth W. Starr.

But it is not clear that this legal privilege shields the work of government lawyers from the eyes of government investigators — thanks to a legal ruling won by Starr himself, when he was independent counsel investigating President Clinton.

Usually, the attorney-client privilege protects private lawyers from being forced to reveal what their clients told them. It also shields their notes and memos from prosecutors. This rule of secrecy is seen as vital to the adversarial process.

But in 1996, Starr challenged the notion that White House lawyers who worked for Clinton could invoke the attorney-client privilege when Starr sought notes they had written.

Starr argued that the lawyers worked for the people of the United States, not for the president.

Democrats are making a similar argument in Roberts' case: that the solicitor general represents the public interest.

The dispute was one of many legal tussles during Starr's six-year investigation of the Whitewater matter. It resulted in a broad appeals court ruling that held that government lawyers did not have the same right to keep secrets as private attorneys did.

"We believe the strong public interest in honest government and in exposing wrongdoing by public officials would be ill-served by recognition of a governmental attorney-client privilege" when prosecutors or congressional investigators are seeking information, the U.S. Court of Appeals in St. Louis said. "Even if we consider a congressional investigation to be an adversarial proceeding, the only harm that could come to the White House as a result of such an investigation is a political harm." . . .

Two questions for our readers:

1. Is the White House really claiming an attorney-client privilege, in the sense of saying that it has a legal right to withhold the documents? I had thought that it was simply saying that such documents shouldn't be turned over, since turning them over would deter some future government employees from giving the most candid possible advice. That's an argument that applies to nonlawyer employees as well as lawyer employees; to the extent it's translated into a legal entitlement, it would sound more like executive privilege than attorney-client privilege; but in any event, it's not an assertion of a legal right to refuse to disclose information (in part because no such assertion of legal right is necessary, at least yet, since there's no actual subpoena from a Senate committee demanding those documents).

But perhaps I'm mistaken — perhaps the White House has indeed said the documents are legally privileged, under the attorney-client privilege. I've seen some press accounts characterizing the White House's actions this way, but I wonder if there are any quotes from White House statements that make this clear.

[UPDATE: Commenter Bryan DB kindly pointed me to the Transcript of the Jul2 6 White House press briefing, which says in part, "MR. McCLELLAN: Well, I'm talking about that this is attorney-client privilege, and it relates to the deliberative process." So the White House is indeed claiming that the documents are covered by the attorney-client privilege; many thanks for the information!]

2. As I read the Eighth Circuit case that the article cites, the court held only that there's no government attorney-client privilege in criminal cases, where information is demanded by the grand jury. The court's reasoning focused heavily on criminal investigations, and it said that it "need not and do[es] not decide" what should happen in civil cases; this suggests that it also didn't decide what should happen in other noncriminal investigations, such as a Congressional investigation that wasn't focused on criminal conduct.

The language that the article quotes about congressional investigations focuses (as best I can tell) on a very different subject: whether the work product privilege (a different privilege) applies under conditions when the work product is generated in anticipation of a congressional investigation.

So while the logic of the opinion might possibly be extended to Congressional subpoenas, even ones that are unrelated to investigation of criminal wrongdoing, it seems to me that the court's holding doesn't really apply here. There was "a broad appeals court ruling that held that government lawyers did not have the same right to keep secrets as private attorneys did," but it was not broad enough to hold anything about rights to keep secrets vis-a-vis Congressional inquiries. Can readers who are familiar with this area of the law, or who have read the Eighth Circuit case, tell me whether I'm mistaken?

I should note that none of this relates to whether it's good policy or good politics for the government to refuse to disclose those memos; I'm speaking here just about (1) whether the White House has stressed a legal attorney-client privilege, as opposed to the executive privilege or policy concerns making the release of the memos improper, and (2) whether the Eighth Circuit decision (or other decisions) really apply to Congressional investigations.

I'd love to hear people's responses in the comments. Thanks to reader Scott Weber for the pointer to the L.A. Times article.

Will the lobbies oppose Roberts?--

At our host,, is by far the best thing I've read on the difficult decision of the left-wing lobbyists over whether to oppose the Roberts nomination. Not only is the implicit analysis in T.R. Goldman's Legal Times article good, but the quotes are revealing:

Some suggest the groups would be better off waiting for another target, perhaps a more abrasive and controversial candidate when the next Court vacancy materializes. Demonizing someone like Roberts, they say, may simply serve to diminish their influence.

"To fly into hysteria over a nominee who is not Judge Bork, if you react at the same decibel level to every putative nominee, it becomes difficult to be heard when necessary," says a staffer at a liberal, Democratic-leaning public policy organization.

So far, however, it seems as if the liberal lobby is determined to hold its ground.

"We're swinging hard right out of the gate," says Ben Brandzel, advocacy director for, the Web-based advocacy group that claims a membership of 3.5 million. "Our credibility is not about getting the Senate to do our bidding. Our credibility comes from fighting for things our people believe in," adds Brandzel, who says Roberts has spent a lifetime "putting corporate power and abuse and partisan politics over the rights of individuals."

Abortion rights groups, including NARAL, NOW and the Feminist Majority, have likewise come out quickly and forcefully against the Roberts nomination, pointing critically to at least two cases Roberts worked on as deputy solicitor general: one which parenthetically stated that the administration opposed Roe v. Wade, the other which took the side of an anti-abortion group, Operation Rescue, in Bray v. Alexandria.

"This is incredibly important. It's life or death," says the Feminist Majority's Eleanor Smeal. "I wish it was hyperbole, but, literally, women's lives are in the balance."

But whether Smeal and others' opposition brings down Roberts' bid makes little difference to them, says University of Connecticut professor David Yalof. Instead, he says, it's about a broader strategy.

"What the liberal interest groups are thinking about is the 2006 and 2008 elections. The traction that these groups hope to gain against Republicans is not possible unless they frame the nomination to their benefit, as an attack on their values. That's what's going on now," he wrote in an e-mail interview.

"Beating Roberts would be nice, but it's not necessary for these groups to stay relevant to the process." . . .

Liberal-leaning interest groups' track record and reputation hit a high point last year, when they played a key role in Senate Democrats' successful filibuster of 10 Bush White House court of appeals nominees, including Miguel Estrada, who eventually withdrew his name from consideration for a coveted D.C. Circuit seat. . . .

The groups were arming for war long before a vacancy on the Court occurred, much less before a nominee was announced.

When speculation was rampant about the expected resignation of Chief Justice William Rehnquist, PFAW made no secret about its efforts to develop a massive, quick-response team devoted to the next nomination, a plan that included a 2,500-square-foot war room with 40 computers and 75 phone banks. . . .

In the end, interest groups maintain they are relevant as long as their members believe them to be. And in that regard, to them, a loss isn't always a loss.

"In the interest group world, a spectacular loss can actually help you," [Richard] Skinner says. "On the one hand, it means you're visible. On the other, if you keep losing, there's a threat, there's a reason to be concerned. People generally give money when they think there's a danger."

Or, as the Alliance for Justice's [Nan] Aron puts it: "Why are people paying dues? Because they know we're out there fighting the good fight along with them."

This is excellent reporting and sophisticated issue-framing. As they say, read the whole thing.

UPDATE: My view is that the release of the Reagan-era internal memos gives the Roberts opposition enough ammunition to mount a set of attack ads that would be superficially effective enough so they will not lose much face by opposing him -- if they choose to go that route. Remember also that there is competition among lobbyists. Which of the two leading left-wing judicial appointment watchdog operations will gain credibility with the potential base opposing Bush's judicial nominees: the Alliance for Justice or the People for the American Way? Or will a new player,, steal their thunder by beating them to punch, as may already be happening? These organizations face credibility issues -- not just with Senators, the press, and the informed public -- but with more ideologically motivated donors and joiners as well.

As for the Senate committee hearings, it is too early to tell, but the Senators' more cautious attack on Roberts is so far shaping up to be three-fold: (1) attack the refusal to release additional internal Roberts memos from later presidential administrations (as they did with Estrada), (2) attack Roberts' refusal to answer most questions about past Supreme Court cases, and (3) assert that (or at least question whether) Roberts is "outside the mainstream" or "outside the conservative mainstream" on important issues.

Colorado Shakespeare Festival:

Colorado is not only abundant in the natural beauty of high mountains, it has plenty of high culture as well. A case in point in the University of Colorado at Boulder’s annual Colorado Shakespeare Festival, which runs through August 13. If you’re in or passing through Colorado, you should certainly take in a performance.

I’ve been attending CSF performances for about a decade; this year’s top-seller, Twelfth Night, ranks at the very top. There are a lot of CSF productions that fall in the B+/A- range, a few that are hideous (Cymbeline a couple years ago), and some that are truly superb. This year’s Twelfth Night hits the peak.

These days, very few directors stage Shakespeare in the period or costume which Shakespeare originally intended. The CSF, for example, has set the Trojan War’s Trolius & Cressida in the American Civil War, put The Taming of the Shrew at a 1950s drive-in, and turned Richard III into futuristic techno-tragedy.

Twelfth Night is originally set in Illyria, and details the adventures of a brother and sister who are separated for years after being shipwrecked off the coast. The CSF production moves them to a Caribbean island in the 1930s, surrounded by calypso music. CSF plays are staged in the outdoor Mary Rippon Theater, under the beautiful Colorado summer sky; the Calypso plus Colorado setting accentuates the script’s sense of placeless fantasy.

The cast, including some members of Actors’ Equity, is outstanding, and uniformly strong. Sarah Dandridge is particularly charming as Viola—the sister who disguises herself as a male servant of the Count of Illyria, falls in love with the Count, yet must carry the Count’s love messages to the Countess Olivia—who in turn falls in love with Viola, thinking her to be a man.

The play is filled with are many other issues of mistaken identity and misplaced love, all of which turns out right in the end. Twelfth Night shows off Shakespeare’s comic powers at their finest, and the excellent CSF cast full exploits the script’s multi-layered verse.

The only real weakness of the production is one which is recurring problem for CSF: the tendency to push Shakespeare’s robustly bawdy scripts far over the edge of vulgarity. For example, Olivia’s pompous servant Malvolio is tricked into believing that Olivia has written him a love letter with the line “some have greatness thrust upon them.” When Malvolio declares his love to the astonished Olivia, as he repeats the “thrust upon them” line, he thrusts his crotch at her face. Please. There’s still supposed to be a difference between Shakespeare and Porky’s.

Also playing in repertory this summer at the CSF are Othello and The Winter’s Tale. I haven’t seen the former, but the latter features a good cast with fine staging. The original script is set in Sicily and Bohemia. The CSF costumes the characters like a medieval fairy tale.

Aimee Phelan-Deconinck, who stars as an excellent Olivia in Twelfth Night, appears here as the Queen Hermione, who is falsely accused of adultery. She’s very good in Winter's Tale too, although the script gives her less to work with.

The big weakness is Shakespeare’s script itself. The first three acts show how Sicily’s King Leontes destroys his family and his kingdom by stubbornly convincing himself that his Queen has been carrying on a affair with his brother, the King of Bohemia. False suspicion of adultery is a powerful motivator in Othello, because the audience can see how Othello’s mind is slowly twisted by Iago. In contrast, King Leontes just comes across as a willful jerk, with almost no explicable motivation for his self-destructive jealousy.

After intermission, acts IV and V take up the story sixteen years later. Various improbable events combine to bring Leontes’ damaged family back to reconciliation. But it’s much harder for the audience to care, because the script is so flat.

If you’re a Shakespeare completist, the CSF version of The Winter’s Tale is worth your while; it’s a strong production of a weak play.

[Puzzleblogger Kevan Choset, July 29, 2005 at 10:52am] Trackbacks
What do Tony Kushner and Oscar Hammerstein

have in common? I'm looking for something very specific and noteworthy (you'll know it when you get it), and while there must be more people who share this with them, I cannot think of any other famous examples.

Once you've collectively figured out the answer, please post any other examples you can think of in the comments.

Jury Nullification: There is an interesting column on by Radley Balko on the provocative subject of jury nulification. Balko raises the issue in the context of two criminal prosecutions for the medical use of illegally possessed drugs.
The doctrine of jury nullification rests on two truths about the American criminal justice system: (1) Jurors can never be punished for the verdict they return, and (2) Defendants cannot be retried once a jury has found them not guilty, regardless of the jury's reasoning. So the juries in both the Rosenthal and Paey cases could have returned a "not guilty" verdict, even though Paey and Rosenthal were undoubtedly guilty of the charges against them.

This may sound radical, perhaps even subversive, but jury nullification serves as an important safeguard against unjust laws, as well as against the unfair application of well-intended laws. It's also steeped in American and British legal tradition.
Balko relies on the excellent book on the súbject by Clay Conrad, Jury Nullification: The Evolution of a Doctrine. Conrad's book is the most important writing on the subject since Lysander Spooner's 1852 book, Trial by Jury (available on line here). I recommend both.

(Hat tip to Glenn Reynolds who also links to his review of Conrad's book)

Update: Clay Conrad has a blog about juries called jurygeek. The reason I recommend his book so highly is that he is very sensitive to the variations on what jury nullification might mean, how it worked historically, the past and present legal treatment of it, and the practical implications of explicitly allowing it.

Guns, Germs, and Steel:

I watched the third and final installment of Guns, Germs, and Steel on tv, about Africa. I found the section on the spread of African societies out of western Africa and the selection of where to establish tribes and villages to be very interesting. So far so good.

But, it seems to me that his argument really kind of fell apart in the last quarter of this last episode. The effort to explain Africa v. Malaysia/Singapore in terms of malaria (germs) exposure seemed to me to be largely question-begging on the role of institutions versus geography. And, although he expresses proper admiration for the complex pre-colonial African societies and germs in repelling European settlers, he again seems to beg his own question, which is why did the Europeans develop the technology and innovation to eventually plunder Africa, notwithstanding the obstacles, rather than the other way around (his question is a positive one, not a normative one about the immorality of the colonial behavior in their treatment of Africans). Not to mention that the pest controls and vaccinations that are needed in Africa have been created predominantly in the West, which again raises the question of why there instead of Africa. Of course, the ability to control pests in Malaysia/Singapore seems to be largely endogenous on having strong legal, political, and economic institutions in place first.

Diamond sems to be arguing tht the "best" way of life in Africa is in small, dispersed highland tribes, insulated from one another to prevent the spread of germs. But, this seems to prevent the accumulation of the population densities necessary to create the sort of material progress that is necessary to spawn guns and steel (and similar technological inventions). Diamond seems to focus only on the benefits of limiting the spread of germs, and suggests that made the African way of life more "fit" for their geography. But perhaps I am misunderstanding him here.

My impression was that in this last episode he seemed like he was really straining to stretch his story to fit his facts. I was also surprised that he also didn't mention the whole controversy of DDT and malaria control, but focused only on the search for a malaria vaccination.

Overall, I enjoyed the series a lot though. I thought the interspersing of old black & white film was an excellent story-telling technique to take the viewer back in time. I wish there was more stuff like this on tv!

I would be interested in everyone's comments again, especially if you have watched the entire series.

ACS Convention Coverage: I'm going to be at the ACS Convention for most of the next two days, so I probably won't be posting anything. If you're curious about the convention, the ACS Blog will be liveblogging a lot of it, and C-SPAN apparently will be covering it, too.

Thursday, July 28, 2005

Questioning Roberts on Overturning Roe:

The question that seems least answerable to me by Roberts in a confirmation hearing is the one in which most people are concerned--whether he would overrule Roe v. Wade. Not because of the issue of whether Roe was rightly or wrong decided in the first place, but rather because there is a separate and independent question of parsing the Supreme Court's confused and confusing stare decisis jurisprudence (although, having read the cases, I'm not sure that the Supreme Court actually has any sort of coherent "jurisprudence" of stare decisis in terms of predicting when it will actually overrule precedent).

What does seem clear about the Supreme Court's stare decisis framework is that it is actually a fact-intensive inquiry that depends very much on the factual record in a given case. Mind you, this is not the typical factual record, but it seems that it would require the Court to consider sociological, scientific, political, and medical data in determining whether to overrule Roe. This question about whether to overrule Roe is much more difficult to answer in the abstract or hypothetical than the question of whether Roe was correctly decided in the first instance.

A good example of the difficulties of the stare decisis inquiry is provided by Judge Edith Jones's concurring opinion in McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004). Published news reports generally suggested that Jones's opinion was critical of Roe as a matter of first impression (such as this one from the Washington Post which says, ambiguously, that she "called into question the reasoning behind the Roe v. Wade abortion ruling").

In reality, Jones's opinion is about stare decisis regarding Roe and Casey, not Roe itself. The point of her concurrence is to note the anomaly of the way in which the mootness doctrine operates to prevent the Court's from being able to create a factual record on the types of facts that are necessary to apply the Supreme Court's stare decisis jurisprudence. In fact, the case there was dismissed because it was moot, thereby prohibiting courts from considering the type of evidence that they are required to consider under the Supreme Court's jurisprudence. She writes:

I agree that Ms. McCorvey's Rule 60(b) case is now moot. A judicial decision in her favor cannot turn back Texas's legislative clock to reinstate the laws, no longer effective, that formerly criminalized abortion.

It is ironic that the doctrine of mootness bars further litigation of this case. Mootness confines the judicial branch to its appropriate constitutional role of deciding actual, live cases or controversies. Yet this case was born in an exception to mootness and brought forth, instead of a confined decision, an "exercise of raw judicial power." Roe v. Bolton, 410 U.S. 179, 222, 93 S.Ct. 762, 763, 35 L.Ed.2d 147 (1973) (White, J., dissenting). Even more ironic is that although mootness dictates that Ms. McCorvey has no "live" legal controversy, the serious and substantial evidence she offered could have generated an important debate over factual premises that underlay Roe.

She notes that the decision for the Supreme Court to reconsider precedent under its own precedent is highly fact-instensive and requires the development of a substantial factual record on a wide-ranging inquiry*:

McCorvey presented evidence that goes to the heart of the balance Roe struck between the choice of a mother and the life of her unborn child. First, there are about a thousand affidavits of women who have had abortions and claim to have suffered long-term emotional damage and impaired relationships from their decision. Studies by scientists, offered by McCorvey, suggest that women may be affected emotionally and physically for years afterward and may be more prone to engage in high-risk, self-destructive conduct as a result of having had abortions. Second, Roe's assumption that the decision to abort a baby will be made in close consultation with a woman's private physician is called into question by affidavits from workers at abortion clinics, where most abortions are now performed. According to the affidavits, women are often herded through their procedures with little or no medical or emotional counseling. Third, McCorvey contends that the sociological landscape surrounding unwed motherhood has changed dramatically since Roe was decided. No longer does the unwed mother face social ostracism, and government programs offer medical care, social services, and even, through "Baby Moses" laws in over three-quarters of the states, the option of leaving a newborn directly in the care of the state until it can be adopted. Finally, neonatal and medical science, summarized by McCorvey, now graphically portrays, as science was unable to do 31 years ago, how a baby develops sensitivity to external stimuli and to pain much earlier than was then believed.

In sum, if courts were to delve into the facts underlying Roe's balancing scheme with present-day knowledge, they might conclude that the woman's "choice" is far more risky and less beneficial, and the child's sentience far more advanced, than the Roe Court knew.

Notably, Jones does not prejudge the likely outcome of this inquiry:

This is not to say whether McCorvey would prevail on the merits of persuading the Supreme Court to reconsider the facts that motivated its decision in Roe. But the problem inherent in the Court's decision to constitutionalize abortion policy is that, unless it creates another exception to the mootness doctrine, the Court will never be able to examine its factual assumptions on a record made in court. Legislatures will not pass laws that challenge the trimester ruling adopted in Roe (and retooled as the "undue burden" test in Casey; see Casey, 505 U.S. at 872-78, 112 S.Ct. at 2817- 21).

No "live" controversy will arise concerning this framework. Consequently, I cannot conceive of any judicial forum in which McCorvey's evidence could be aired.

The problem she was addressing, therefore, was the fact-instensive question of whether the Supreme Court should overrule Roe, not whether Roe was correct in the first instance. To the extent that the Supreme Court has given us guidance in this area (such as its discussion of overruline Lochner versus upholding Roe), it seems to turn on precisely these sorts of broad questions that are simply impossible to answer in a hypothetical without a full factual record.

As Jones further notes, however, this is precisely the sort of factual inquiry that seems to be foreclosed by the interaction of Roe with the mootness doctrine, unless the Court makes an ad hoc exception to mootness. So, even if the Judiciary Committee wants to ask him about overturning Roe, I don't see how he can reasonably answer in the absence of a richer factual record.

In general, the news coverage I saw during the period when Jones was thought to be under consideration fundamentally failed to grasp this distinction between what she actually said in the opinion about precedent versus what people thought she said about Roe v. Wade.

The key point here, though, is that there is a big difference between whether to uphold precedent, versus deciding whether a case was correctly decided in the first place. The former seems to be exactly the sort of question that can't be answered in the abstract. Given that, I don't see how Judge Roberts could meaningfully answer that particular question based on the lack of a solid factual record.

Also, I think its kind of funny to think about the Court's "precedent precedent" (i.e., when to overturn a given case)--sort of a "metaprecedent" I guess.

I express no opinion on what other questions are in-bounds or Roberts should be expected to answer. For instance, I'll confess that I haven't made up my mind on Vik Amar's argument that even if Roberts can't be asked about future cases, he could be asked to comment on how he would have decided cases that have already been decided. It is an interesting argument that I have to think about more.

Professor Andrew Samwick seems to think Amar's proposal is ok and gives his answers if he were in the hotseat here.

*I added some paragraph breaks in some of the block quotes for readability here; I have not altered the text.

Gun Laws of America:

The 2005 edition of Alan Korwin's excellent book Gun Laws of America has just been published. The book contains the full text of every gun-related federal statute, along with plain English explanations. The book is a very valuable reference for any lawyer or scholar who works on gun laws, and also a useful resource for citizen activists. Korwin's press, the Bloomfield Press, also has an extensive series of books on state-level gun laws. But my favorite Bloomfield book is Supreme Court Gun Cases, which I co-authored, and which compiles everything the Supreme Court has ever written about the Second Amendment, self-defense, or gun policy. It turns out that the Supreme Court has written quite a bit more than is commonly recognized, and that the great weight of the Supreme Court's jurisprudence favors individual rights and self-defense.

Airport Security:

Having just endured another flight through America's airports, I swallowed the bitter irony of reading this article on plane, "How one airport keeps its security lines short." The answer seems to be that San Francisco's airport security has remained in private hands, which has generated more workforce flexibility and technology innovations:

San Francisco is one of five U.S. airports where security is not provided by the federal agency created after the Sept. 11 attacks. As the debate continues over whether the nation's airports should use a private or government security force, San Francisco is an example of how private security can make a difference — if implemented well.

Security waits at San Francisco were longer than 10 minutes only 2% of the time from June 2004 to mid-May, a USA TODAY analysis of federal records shows. At other large airports, lines exceeded 10 minutes nearly four times as often.

"It's an efficient airport," says passenger Luke Alexander of San Jose, Calif., who regularly takes international flights from San Francisco.

After Sept. 11, the Transportation Security Administration took over passenger screening from airlines, which had security companies plagued by high turnover. The law creating TSA let five airports have private security with TSA oversight to provide a comparison.

Despite San Francisco's experience, TSA says there's no clear evidence that private management shortens lines. (TZ: A shocking conclusion by TSA).

A TSA-commissioned study in April 2004 found that passengers "experienced shorter wait times" at San Francisco's checkpoints and that security there was no more or less effective than at other large airports.

Also, personally, one of my least favorite things in the world is having to take my shoes off when walking through the metal detector, especially because I had understood that removing shoes is not required by law. (If you need another reason other than inconvenience and the feeling of being treated even more like cattle, read this article "Airport shoe inspection raises risk of foot fungi". Blech.) I even wore sneakers on the flight to try to avoid having to take them off. No luck.

So, since I arrived early for my flight, I decided I would find out what would happen if I didn't remove my shoes. Then I entered the strange world of modern airport security. I was confronted by a TSA officer who told me, "If you don't remove your shoes, you will be pulled aside for a special check." I said "ok." They then led me to another cattle pen where--and I swear I am not making this up--a TSA official stood directly in front of me, ignoring me and staring at the work schedule grid for almost five minutes (mind you, all it was was a matrix of the 10 or so security officials and what time they would be working this week, so I'm not sure what was so complicated). Meanwhile, 4 other employees stood around seemingly doing nothing (compare that to San Francisco airport). Then after five minutes of ignoring me, the person in front of me finally noticed me and said, "We need to get a male screener over here." I'm not sure why she didn't mention that while she was figuring out the scheduling grid.

I was confused, because I thought that all they would need to do was screen my shoes in some way. Nope, they then did a full-body wand and patdown, ran my boarding pass through a computer, and then finally took a dust swab off my shoes to run through a computer. (Whew, I passed!!).

Why they need to do a full-body patdown, as opposed to just a scan of your shoes when you decide not to remove your shoes when you go through the metal detector is not clear to me. The only explanation that I can think of is to raise the cost and inconvenience to those don't want to remove their shoes so as to deter people from refusing to remove their shoes.

[Puzzleblogger Kevan Choset, July 28, 2005 at 10:43am] Trackbacks
More on Presidential Life Spans:

As a follow-up to yesterday's post, here are some questions on Presidential births. (You might want to try to answer all the questions before looking at any of the answers, since some answers may give away other ones.)

We all know that the Presidents who died closest in time to each other were John Adams and Thomas Jefferson, who both died on July 4, 1826. What two U.S. Presidents were born closest in time to each other?


What two consecutive U.S. Presidents were born furthest apart in time?


What is the longest stretch of time during which no Presidents were born? (Note that this is different from the question above. There may have been a long gap between the birth of consecutive Presidents during which some other President was born. For example, while 15 years separated the births of consecutive Presidents McKinley (1843) and Teddy Roosevelt (1858), there were, indeed, other Presidents born during that gap: Taft (1857) and Wilson (1856).)


What Presidents was born the most time before his immediate predecessor?


What President was born before the most of his predecessors?


I Have the First Pick in My Fantasy Football Draft:

We are probably doing our FFL draft this weekend (early, yes, but that's what schedules seem to permit). I have the first pick in the draft (10 team league, serpentine draft order). I'm leaning strongly towards taking Manning. ESPN reports that in all of its leagues last year, 42.9% of the winning teams in its leagues had either Manning or Culpepper. My intuition is that even though Tomlinson seems to be thought to be the consensus number 1, the drop-off from Manning and Culpepper is so large compared to the drop-off from Tomlinson to about 12 other RB's, that it is worth burning the number 1 pick on Manning.

Last year my draft didn't turn out so great--I drafted Portis, Barlow, Steve Smith, Anquan Boldin, Jeremy Shockey, and David Boston with 6 of my first 7 picks (I also got Favre and Walker later, but that didn't help much). I don't recommend having your wide receiver corps completely decimated by halftime of the first week of the season. Anyway, Manning's consistency is looking pretty attractive right now too--and I'm a bit sour on the "stud RB's theory" as you might guess after "building" my team around Portis and Barlow last year.

Given that we have the smartest Comment board in town, I'll also ask if anyone has any sleeper recommendations. Also, does anyone know if Tatum Bell been given the starting job in Denver?

Also, congratulations to John Charles Bradbury, a GMU Economics PhD from a few years ago who now teaches at Sewanee (I served as the outside reader on his dissertation committee--a cool dissertation on bicameralism). More importantly, however, he makes an appearance in ESPN's Fantasy Football preview magazine as one of ther "Wise Guys," who are guys who provide advice in the issue on how to use statistics to draft more effectively. His advice: "When in doubt, default to facts, not premonitions" and gut feelings.

Wish I had read that last year before drafting Barlow in the second round...


Wednesday, July 27, 2005

Ed Brayton on the Ninth Amendment: Ed Brayton on Positive Liberty has an excellent post on the Ninth Amendment (on which he partially relies on my work). He is responding to the argument, expressed by a law professor on a listserve, that was recently put forth in the Texas Law Review by Professor Kurt Lash of Loyola-Marymount. Professor Lash's thesis has received wide attention, especially among those who seek to deny and disparage the Ninth Amendment--which he himself does not.

I will be soon responding to his argument myself in the most comprehensive and detailed treatment of the original meaning Ninth Amendment I have written to date. As I previously mentioned here, it is entitled "Five Originalist Models of the Ninth Amendment" and should be ready for public circulation and comment on SSRN sometime in August before I head to Georgetown for my visit this fall.

I am not activating comments on this post, because this matter can only ultimatly be settled by evidence; not the sorts of speculations one finds on blogs or in casual conversations, even among law professors, and because I won't be offering any analysis of the available evidence until my paper is released. Presentation of evidentiary matters of this type require traditional legal scholarship, not blogging--though blogging is an excellent way of bring this scholarship to the attention of those who may be interested.
Miranda Warning: In the free section of today's, Manny Miranda takes the Bush staffers to task for their shoddy handling of the "Federalist Society´issue."
Judge Roberts's ties with the Federalist Society are not the story. If Judge Roberts is not a member, he's not a member. But the White House should not be in the business of appearing to disassociate itself from its friends. By running to correct media reports last week that Judge Roberts was a member of the Federalist Society, the White House created an issue where none existed. It should have left it to the press or Democrats to unveil this great mystery. . . .

Why should the White House have stayed silent? Several reasons. As we should know by now, the left loves to come up with conspiracy theories; responding to them only encourages this kind of scare-mongering. Also, by responding to the reports, the White House legitimized an attack on good people who may include future judicial nominees, including the president's next Supreme Court pick.
In addition, it harms a GOP-friendly society of lawyers that depends on membership dues for support. Students and lawyers with visions of future confirmation hearings dancing in their heads may now think twice before joining the Federalist Society. (I am sending in my application and dues today and I urge others to do the same.)

But there is an even better reason for why the White House should have stayed quiet: loyalty. . . .
Printer Fingerprints:

PCWorld reports:

Next time you make a printout from your color laser printer, shine an LED flashlight beam on it and examine it closely with a magnifying glass. You might be able to see the small, scattered yellow dots printed there that could be used to trace the document back to you.

According to experts, several printer companies quietly encode the serial number and the manufacturing code of their color laser printers and color copiers on every document those machines produce. Governments, including the United States, already use the hidden markings to track counterfeiters.

Peter Crean, a senior research fellow at Xerox, says his company's laser printers, copiers and multifunction workstations, such as its WorkCentre Pro series, put the "serial number of each machine coded in little yellow dots" in every printout. The millimeter-sized dots appear about every inch on a page, nestled within the printed words and margins. . . .

The dots' minuscule size, covering less than one-thousandth of the page, along with their color combination of yellow on white, makes them invisible to the naked eye, Crean says. One way to determine if your color laser is applying this tracking process is to shine a blue LED light--say, from a keychain laser flashlight--on your page and use a magnifier. . . .

Oh, and here's a rather ambiguous item:

Lorelei Pagano, a counterfeiting specialist with the U.S. Secret Service, stresses that the government uses the embedded serial numbers only when alerted to a forgery. "The only time any information is gained from these documents is purely in [the case of] a criminal act," she says.

Well, which is it -- only when alerted to a forgery, or only when investigating any criminal act?

Thanks to reader Richard Gould-Saltman for the pointer.

LawProfs Rick and Nicole Garnett are guestblogging over at PrawfsBlawg. Rick has already posted; Nicole should be posting soon. Both are prolific and very interesting scholars, so be sure to visit during their guest stint.
More Unsound Criticism of Judge Roberts:

This is from a column by lawprof Goodwin Liu:

What we already know from Roberts's record is cause for concern. His legal career is studded with activities unfriendly to civil rights, abortion rights, and the environment.

Last year, for example, he wrote an opinion rejecting the civil rights claims of 12-year-old Ansche Hedgepeth, who was arrested, searched, handcuffed, booked, and detained by police for eating a single french fry in a subway station in violation of D.C. law. Although an adult committing the same infraction would have received only a citation under D.C. law, Roberts said the police's treatment of Hedgepeth served the "goal of promoting parental awareness and involvement with children who commit delinquent acts."

What, though, was the precise "civil rights claim[]" that Judge Roberts was responding to here? It was Hedgepeth's argument that the government policy unconstitutionally discriminated based on age. But of course the Supreme Court has generally held that age discrimination is constitutional if it's rationally related to any legitimate government interest -- the most deferential of the equal protection tests. Here's Judge Roberts' argument in context (some paragraph breaks added):

Rational basis review applies and we accord the challenged policies a strong presumption of validity. We will uphold them "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." FCC v. Beach Communications, 508 U.S. 307, 313, 113 S.Ct. 2096, 2100-01, 124 L.Ed.2d 211 (1993). What is more, "those attacking the rationality of the legislative classification have the burden 'to negative every conceivable basis which might support it.'" [Id.]

We therefore need not review all the reasons given by the defendants in support of the challenged distinction between children and adults; it is enough that we find one reason rational. We conclude that the no-citation policy for minors is rationally related to the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts.

Issuing a citation to a child is complicated by the fact that there is often no ready way to ensure that the child is providing truthful or accurate identifying information. A child often will not be carrying a form of identification, and there is nothing to stop one from giving an officer a false name -- an entirely fanciful one or, better yet, the name of the miscreant who pushed them on the playground that morning. In this situation parents would be none the wiser concerning the behavior of their children.

The correction of straying youth is an undisputed state interest and one different from enforcing the law against adults. Because parents and guardians play an essential role in that rehabilitative process, it is reasonable for the District to seek to ensure their participation, and the method chosen -- detention until the parent is notified and retrieves the child -- certainly does that, in a way issuing a citation might not.

The district court had and we too may have thoughts on the wisdom of this policy choice -- it is far from clear that the gains in certainty of notification are worth the youthful trauma and tears -- but it is not our place to second-guess such legislative judgments.

Given the Supreme Court's rulings that age is not a "suspect" or "quasi-suspect" classification, and therefore age classifications are permissible whenever they're rationally related to a legitimate government interest, it seems to me that Judge Roberts' decision was perfectly sound -- and that a contrary decision on the equal protection issue would have been inconsistent with the Supreme Court caselaw that Judge Roberts was required to follow. (As to why Judge Roberts' decision was also correct, and mandated by the Supreme Court precedents, as to the Fourth Amendment, see this post below).

Thanks to commentator "french fry fan" for the pointer to the Liu column.

[Puzzleblogger Kevan Choset, July 27, 2005 at 2:37pm] Trackbacks
Living Ex-Presidents

There are currently four living ex-Presidents (Ford, Carter, Bush, Clinton). Who was President the first time there were four living ex-Presidents?


What is the highest number of ex-Presidents to be alive at one time, and when did this happen?


As with the post on Living Ex-Justices, my question for you is: When were there were no living ex-Presidents?

UPDATE: I accidentally listed one of the answers to the second question as an answer to the first question (as some comments correctly pointed out). The answers above are correct as listed, I believe.

Checking in on Wikipedia's Patriot Act Entry: Last October, I blogged a bit about the remarkably bad entry for the USA Patriot Act on the free on-line encyclopedia Wikipedia. Since then, I've checked in on the entry occasionally to see how it is morphing over time. The Wikipedia folks ended up marking the entry as one that needed rewriting, and in recent months the entry has been substantially reworked. I've read the new entry, and it is, well, still remarkably bad.

  Here is the current overview section of the Patriot Act entry, which should give you a feel for the (poor) quality of the entry as a whole:
  Enacted by the U.S. Congress after the September 11, 2001 Terrorist Attacks, the act enhances the authority of U.S. law enforcement for the purported intention of investigating and preempting potential terrorism. Because the USA PATRIOT Act is a revision of the Foreign Intelligence Surveillance Act (FISA), this enhanced legal authority is also used to detect and prosecute other alleged potential crimes. Expanding on FISA, the USA Act defines terrorism as an activity that meets all of the following three criteria:

  1. It intimidates or coerces the government or civil population
  2. It breaks criminal laws
  3. It endangers human life.

This definition is adopted in the USA PATRIOT Act. Critics claim the Act is unnecessary and enables U.S. law enforcement to infringe upon free-speech, freedom of the press, human rights, and right to privacy. It is most controversial among critics for its section 216, which allows judges to grant government investigators ex parte orders to look into personal phone and internet records on the basis of being "relevant for an on going investigation", rather than probable cause as outlined in the fourth amendment.
  Almost every sentence in this description is inaccurate or doesn't make sense. Some of the sentences have only minor errors, but others are way off. To pick just a few examples, the Patriot Act is not a revision of FISA; it contains revisions of FISA, to be sure, but the FISA revisions are only about 5 percent of the act. Second, the definion of "domestic terrorism" (not just "terrorism") in the Patriot Act is not an important part of the Patriot Act, as I explained in depth in a post you can access here. Third, I haven't heard criticism of Section 216 of the Patriot Act in years. It used to be controversial because early critics simply misunderstood what it did, but as I detailed in this law review article, Section 216 was actually pretty friendly to civil liberties concerns. And keep in mind, this is just the overview.

  Of course, the fact that Wikipedia's Patriot Act entry is so bad doesn't mean that everything on Wikipedia is bad. I have found Wikipedia entries to be quite helpful when the topic is something esoteric. It seems that when fewer people care about a topic, the better the entry tends to be. When lots of people care about something, lots of people think they know something about it — or at least more people feel strongly enough that they want to get their 2 cents worth into the entry. When lots of people have strong opinions about a topic, even uninformed ones, the Wikipedia entry for that topic ends up being something like Tradesports betting odds on who Bush would pick to replace Justice O'Connor. It's an echo chamber for the common wisdom of the subset of people who use the site more than anything else. And if the views in the echo chamber happen to be way off, then so is the entry.

  Anyway, when I blogged on this topic last fall, I received a bunch of e-mails from the Wikipedia faithful explaining that universal law mandated that all Wikipedia entries were on an inevitable path to encyclopedic perfection. Now that we're enabling comments, I hope the faithful will offer some thoughts in the comment section on why perfection seems to be taking an unusually long time in the case of the Patriot Act entry.
Does Rhode Island State Judge Stephen Fortunato

not know the Supreme Court's Fourth Amendment jurisprudence, or does he just not care? Or does he just think that lower court judges should ignore Supreme Court precedents?

Justice Fortunato wrote an article criticizing Judge Roberts' decision upholding the D.C. government's policy of arresting children for eating on the subway. Here's the criticism:

As statutes and constitutions are often marked by a lack of specificity, and thus allow for divergent interpretations by different judges, it is instructive to examine how Judge Roberts analyzed the Fourth Amendment declaration that people have a right "to be secure in their persons" and to be free from "unreasonable searches and seizures" when he was confronted with the claim of 12-year-old Ansche Hedgepeth that she had been unlawfully arrested and detained by undercover police officers in October of 2000.

Her crime? Eating food, specifically one French fry, at a Washington, D.C., subway stop, in contravention of a local ordinance.

For her gustatorial effrontery, police officers took her into custody, handcuffed her behind her back, searched her body and her backpack, removed her shoelaces, and then transported her in a windowless van to a facility for processing and fingerprinting. Throughout this ordeal, the child was sobbing. She was released to her distraught mother three hours later.

When Ansche's mother brought suit, the question presented to Judge Roberts and his colleagues on the U.S. Court of Appeals for the District of Columbia Circuit — which legal commentators maintain is the second most powerful court in the country — was whether Ansche's right to be free from unreasonable searches and seizures had been violated.

Judge Roberts noted the right and responsibility of courts to "inquire into the reasonableness of the manner in which an arrest is conducted," before he went on to rule that the police officers had done nothing unconstitutional in dragooning little Ansche.

We may fairly ask what Judge Roberts thought was reasonable about the scope and nature of the search and temporary incarceration of this child? Did he think that the girl was concealing contraband ketchup? Or an unpatriotic bottle of French wine to quaff with her fried spud? Perhaps there was something about her and her overt display of a French fry that led the officers to conclude that she had a hand grenade in her knapsack.

This outrageous decision is instructive. First, it teaches that a Harvard law degree and a professional lifetime representing corporate clients and the U.S. government are no guarantee that one comprehends the Bill of Rights. . . .

The view that it's generally unreasonable to arrest people for very minor criminal offenses — eating food in the subway, driving without a seat belt, and the like — is perfectly plausible. But it was squarely rejected by the Supreme Court in Atwater v. City of Lago Vista three years before Judge Roberts' decision (as Judge Roberts' opinion expressly discussed). Likewise, one could argue that it was unreasonable for the police to search the backpack, or Ansche Hedgepeth's person — but the Supreme Court has consistently held that the police have the right to search people and their nearby belongings incident to an arrest.

Hedgepeth did argue that Atwater was distinguishable, but I think Judge Roberts was quite right in explaining why her arguments were unpersuasive; the Court's ruling in Atwater did quite clearly control this case. And in any event, Justice Fortunato's op-ed never mentioned Atwater, or explained why Justice Fortunato thought the case didn't control. It left readers with the false impression that Judge Roberts was deciding the matter based on his own views of the Fourth Amendment, with no acknowledgment that he might have felt bound by the Supreme Court's decision.

It seems to me there's nothing outrageous about a lower court judge following the Supreme Court's precedents in this context. But there is something quite troubling about a state judge's publicly criticizing a person, while not revealing to his readers that person's s strongest — and quite likely dispositive — defense.

Thanks to How Appealing for the pointer to Justice Fortunato's op-ed.

UPDATE: I originally mischaracterized Justice Fortunato as a justice of the state Supreme Court; he's a judge on the state Superior Court -- i.e., the trial-level court -- though the honorific that such judges are given in Rhode Island is "Justice." Many thanks to Charles Lovell for the correction. The substance of my criticism remains entirely unaffected.

The War on Terror is Over: Well, sort of.

Tuesday, July 26, 2005

Talk About A Prophetic First Day on the Job: As you know, John Roberts has been nominated to replace Justice Sandra Day O'Connor at the U.S. Supreme Court. What you might not know is how John Roberts spent his first day of his first job following his clerkship with now-Chief Justice William Rehnquist. The year was 1981, and Roberts was a 26 year-old Special Assistant to Attorney General William French Smith.

  How did Roberts spend his first day at the Justice Department? According to a very interesting story in tomorrow's New York Times, he spent the day helping Sandra Day O'Connor prepare for her confirmation hearings:
  In a memorandum [filed at the time], Judge Roberts noted that he had spent his first day at the Justice Department helping Sandra Day O'Connor prepare for her confirmation hearings. In a line that will perhaps resonate as his own Supreme Court confirmation hearings draw near, he wrote: "The approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the court, but demonstrating in the response a firm command of the subject area and awareness of the relevant precedents and arguments."
State v. Scopes: I recently finished reading Summer for the Gods, a history of the famous Scopes "monkey" trial by Prof. Edward Larson that won the Pulitzer Prize for history in 1997 (and was recently recommended by Glenn Reynolds).

  Although it's a bit dry at times, on the whole the book was fascinating: it turns out that the history of the Scopes trial is very different from the myths. As a law professor, I was particularly interested in understanding the legal side of the case. I wondered how the judicial system ended up being a forum for debating such non-legal questions as whether evolution is consistent with the Bible. The answer turns out to be pretty interesting.

  While Larson doesn't focus on the legal side of the case in particular, here is the picture I was able to put together:

  1. In 1925, Tennessee passed a state law that made it a misdemeanor punishable by a fine of up to $500 "to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man had transcended from a lower order of animal." No one expected any one to be prosecuted under this law; it was designed to be symbolic. But the nascent ACLU decided to try to challenge the law to establish the right of schools and teachers to control the school curriculum. The challenge wasn't supposed to be about religion or evolution; the issue was academic freedom.

  2. The ACLU placed advertisements in local Tennessee papers looking for someone who would challenge the law. Local citizens of Dayton, Tennessee saw the advertisment, and realized that a prosecution under the law in Dayton would help the local economy by making people come to Dayton for the trial. A local prosecutor agreed to bring a prosecution if they would find a local teacher who would go along. John Scopes agreed to be the defendant for the test case. Scopes wasn't actually a biology teacher, but he had taught a biology class as a substitute teacher, and had used a state-assigned textbook that taught evolution. The "prosecution" was designed to be a friendly affair. The ACLU would get its test case to bring before the appellate courts, and Dayton's economy would benefit from all the attention brought by the trial. Scopes would face a fine in theory, but it was understood that he wouldn't actually have to pay it.

  3. The announcement that a teacher was being prosecuted for teaching evolution drew a tremendous amount of press attention, and the attention of both former Presential candidate and popular speaker William Jennings Bryan and famed defense attorney Clarence Darrow. Darrow's involvement was not exactly welcome; he was an atheist, and saw the Scopes case as an opportunity to challenge religious fundamentalism in court. He ended up wrestling control of the case from the ACLU. Whereas the ACLU wanted the case to be about academic freedom, and primarily an issue for appeal, Darrow wanted to "put religion on trial."

  4. The defense strategy in the Scopes case was two-fold. First, the defense had a statutory claim designed to permit the defense to put on expert witnesses about religion and evolution. The statute was terribly written, and as written it wasn't clear if it banned the teaching of evolution or teaching that conflicted directly with the Bible. The government argued that the law only banned teaching evolution, and thus that Scopes had clearly violated it. The defense argued that the law prohibited teaching that conflicted with the Bible, which would have let the defense put on lots of expert witnesses to testify about modern scientific theories of evolution and whether they were consistent or inconsistent with the Bible. The constitutional case was largely based on state constitutional law; this was before most of the Bill of Rights had been incorporated and applied to the states. The federal constitutional case was based on several Lochner-esque Due Process arguments, including that controlling state educational curricula exceeded the police power.

  5. The trial judge ruled that as a matter of statutory interpretation, the government was right that the statute merely prohibited the teaching of evolution. No experts were needed, and Scopes was obviously guilty. Darrow argued to the trial judge that he needed to build an appellate record anyway, in case the Tennessee Supreme Court disagreed with the trial judge's interpretation of the statute. The trial judge went along, at least at first, and allowed Darrow to offer both affidavits and live testimony (without the jury present) on the question of whether evolution was inconsistent with the bible.

  6. The confrontation between Darrow and Bryan was Darrow's idea. Darrow was permitted to put on live witnesses who were experts in the Bible, and Darrow came up with the clever idea of calling William Jennings Bryan as a Bible expert. It was basically a stunt, as Bryan was acting as one of the prosecutors and could have simply declined. But Darrow accurately predicted that Bryan would be too proud to turn down the opportunity to testify as a Bible exoert. Darrow then proceeded to grill Bryan about the meaning of the Bible for two hours. Following Bryan's testimony, the trial judge changed his mind and decided that all of the evidence offered by Darrow for the appellate record was irrelevant. He had all of that evidence (including Bryan's testimony) stricken from the record.

  7. To make sure that Bryan wouldn't get the last word, Darrow waived his closing argument. Darrow basically agreed to the court that Scopes was guilty. The jury took 9 minutes to return a verdict of guilty; most of that time was time leaving and returning to the court room.

  8. The lead lawyer at that point for Scopes, a former law professor named Neal, missed the filing deadline needed to challenge trial errors. This included the judge's evidentiary ruling that no expert witnesses were needed, which had been based on the construction of the statute. This meant that the ACLU could only challenge the constitutionality of the statute, not the evidentiary rulings. Scopes appealed to the Tennessee Supreme Court, but the Court ruled that the failure to file a Bill of Exceptions to the trial in 30 days waived any appeal on those issues. See Scopes v. State, 152 Tenn. 424, 278 S.W. 57 (Tenn. 1925).

  9. When the challenge to the constitutionality of the statute was filed, the Tennessee Supreme Court upheld the statute but vacated the conviction in a divided opinion. See Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (Tenn. 1927). The conviction was vacated on a somewhat forced technicality; the jury was supposed to set the amount of the fine, but had forgotten to do so, and the judge had simply picked an amount with the consent of the parties. The Tennessee Supreme Court ruled that this was improper, such that the conviction was invalid, and strongly hinted that the government should not bring the prosecution again. Here is the end of the Court's opinion:
  Since a jury alone can impose the penalty this act requires, and as a matter of course no different penalty can be inflicted, the trial judge exceeded his jurisdiction in levying this fine, and we are without power to correct his error. The judgment must accordingly be reversed. Upchurch v. State, 153 Tenn. 198, 281 S. W. 462.
  The court is informed that the plaintiff in error is no longer in the service of the state. We see nothing to be gained by prolonging the life of this bizarre case. On the contrary, we think the peace and dignity of the state, which all criminal prosecutions are brought to redress, will be the better conserved by the entry of a nolle prosequi herein. Such a course is suggested to the Attorney General.
  This resolution was pretty sketchy, but it served a purpose. The Tennessee Supreme Court upheld the popular statute, Scopes was off the hook, and the ACLU did not have anything to appeal to the United States Supreme Court. The government took the Court's advice and did not recharge Scopes. The legal case ended as a draw.

  Anyway, that's my understanding of the case from Larson's book. If any readers have a different understanding, I hope you'll consider leaving a comment in the comment section.
Bush vs. the Sagebrush Solution:

Some environmentalists would rather pay ranchers to give up ranching than try and regulate or litigate them out of existence. As John Tierney explains in today's NYT, groups like the Grand Canyon Trust want to purchase and retire grazing permits owned by ranchers. It's a win-win approach to environmental protection, as environmetnalists get what they want (less grazing on federal lands) and ranchers get what they want (compensation for selling their rights). Alas, the Bush Administration is standing in the way.

If the Bush folks wonder why they have such a bad environmental reputation, policies like this are part of the reason why. Here is an environmental policy that is wholly consistent with the conservative principles of property rights and voluntary market exchange. Yet the administration still opposes it. I think the Bush Administration's environmental policies are often subject to unwarranted criticisms, but cases likes this make the administration hard to defend.

Note: Then-Interior solicitor WIlliam Myers III was partially responsible for this sorry policy. This is one of the reasons I criticized his nomination to the U.S. Court of Appeals for the Ninth Circuit last year.

Canadian Aboriginal Leader Fined for Anti-Semitic Remarks:

It's hard to feel any sympathy for this guy, especially when, instead of apologizing, he claims he's being persecuted for being a Native Canadian. But Canada would still be better off with more robust protection for freedom of speech.

As an aside, I've been wondering lately whether "group libel" laws, that required proof of (a) falsity and (b) intentional or reckless disregard for the truth, as under N.Y. Times v. Sullivan for public figures, would have much of a stifling effect on freedom of speech. The Sullivan standard does not seem to meaninigfully interfere with criticism of public figures; would such a standard applied to minority groups meaningfully interfere with criticism of those groups? Perhaps the problem would be that "anti-defamation" groups would use the threat of costly litigation to stifle discussion on controversial issues, regardless of whether they could actually win the case? I'm not advocating group libel laws, but with hate speech laws increasingly in vogue around the world, perhaps the requirements of falsity and reckless or intentional disregard for the truth would serve a good part of their potentially legitimate purpose, while mitigating their harm.

ACS National Convention: The American Constitution Society is holding its 2005 National Convention later this week in Washington, DC. The very impressive schedule of events is available here. I'll be participating in a breakout session panel on Racial Inequality in the Criminal Justice System on Friday from 11:30 to 1pm, and I plan to spend most of Friday and Saturday at the convention. I hope to run into some VC readers, too; if you're there, please feel free to introduce yourself.
[Puzzleblogger Kevan Choset, July 26, 2005 at 2:48pm] Trackbacks
Lines Intersecting States:

Reader Corey Lanum poses the following question: There are many places in the US where the shortest line between two points in the same state passes through another state. E.g., a straight line from Duluth to Rochester, MN, passes through Wisconsin. There is one place in the country where you can draw a straight line between two points in the same state and pass through four other states. There is one place where you can pass through three states, and there is another place where you can pass through more than three states. Where are these places?

(There's no funny business like going from Kansas City, Kansas to Topeka, Kansas, by going east and passing through Missouri, Illinois, Indiana, etc., the Atlantic Ocean, Europe, and Asia, before coming back through the Western US. I'm talking about the shortest path between two places.)

Eugene on the Federalist Society:

Pejman Yousefzadeh recalls this Washington Post op-ed on the Federalist Society -- what it is and isn't -- by our own Eugene Volokh.

Build It!

I'm with Althouse. Build it (and I hope they will come to live there).

Freakonomics and the Car Seat Debate:

I'm rapidly becoming addicted to the Freakonomics blog. The latest brouhaha on child safety seats, airbags vs. seat belts, etc., is quite interesting. Levitt argues that the data fails to support the hypothesis that car seats are safer than seat belts for children over the age of 2 years who are involved in an accident. He was criticized by a letter in the New York Times as being "irresponsible and dangerous" for publishing this conclusion and the fear was expressed by the letter-writers that they hope this "misleading article does not cost a child his life."

Also, see Alex Tabarrok's take on the child seat debate, criticizing the subordination of the scientific issue to activist conclusions.

Mike Rappoport sees something similar in legal scholarship, but I think there is one difference--I think that law professors may be more comfortable with intellectual disagreement (having been weaned nursed on the adversary system) and so that in theory there may be more of a check on the potential negative efffect of "activist scholarship" than perhaps for medicine/public health. I have the utmost respect, admiration, and deference to the medical profession, but would I be rocking the boat too much to raise the possibility that those from that world sometimes can be, shall we say, perhaps a bit paternalistic and a bit impatient with those who question their authority? I remember one medical person telling me that the very idea that there could be such thing as "lower-risk tobacco" (such as chewing tobacco vs. cigarettes) was like saying that someone could be "a little pregnant." (I reminded this person that at the very least she had to admit that the second-hand smoke risks associated with chewing tobacco are somewhat lower than for cigarettes.) The idea that Levitt's scientific conclusions from the data on car seats could be "irresponsible and dangerous," as opposed to perhaps "incorrect" or "unsupported," is really sort of a peculiar and unhelpful way to think about what is, after all, a positive empirical question, not a normative question.

Not to mention that the letter's kicker, "We hope that this misleading article does not cost a child his life," completely misconceives the public policy question. Again, I don't know if Levitt is correct. But if he is, then this means there are people who unnecessarily spend money on car seats (say to replace a broken car seat when a kid gets old enough to ride with a seat belt instead), who could otherwise spend that money on something else that benefits their kids' health (food, medicine, doctor's appointments, etc.), or other good things for their kids (books, exercise). In which case, Economics 101 tells us that laws that force people to spend money on unnecessary car seats also have the inevitable effect of leading to childrens' deaths as well. In a world of scarcity there is never a free lunch. Passing laws that forbid people to take car rides of more than 8 hours or prohibit driving over 30 miles an hour or prohibit people from driving small, light fuel-efficient cars might also reduce the number of casualties to chldren. But there are obvious social tradeoffs on safety, economics, and other concerns for each of these policies. The question is which policy is going to result in fewer overall casualties.

There are plenty of situations where what was originally thought to be true turns out later to be incorrect (Russ Roberts reports that 1/3 of medical conclusions turn out to be incorrect), or where efforts to regulate generate unintended consequences and incentives that defeat the regulation or cause unanticipated side-effects. So we gain little, and potentially lose a lot, when we shut down scientific inquiry on the basis that we are concerned that the public may misuse the information that results.

Let me emphasize--I don't know wither Levitt is correct. But conflating statistical analysis with activist demagoguery and inflammatory rhetoric that his research is going to kill kids isn't going to help us figure out the best policy here.

Nice Debate About Confirmation Questioning: There is a nice debate on LegalAffairs Debate Club between Erwin Chemerinsky and Brannon Denning on the sorts of questioning that Senators should engage in during Supreme Court confirmation hearings. Brannon is off to a strong start. Here is his closing shot:
However, as I am sure you would agree, it is often quite difficult to answer constitutional questions in the abstract. Indeed, you wrote that "[a] nominee should not say how he or she [would] vote on a particular issue because . . . that will be a product of the specific case and the arguments presented." But it seems to me difficult to relate abstract views "on crucial constitutional issues of the day" to a nominee's likely performance in the context of a specific case. Thus, recent Supreme Court confirmation hearings have a Kabuki quality about them. Senators ask vague, abstract questions; nominees attempt to respond in a manner calculated to communicate the least information without offending the questioner. As a result, recent nominees to both the Supreme Court and the courts of appeals all admire Justice John Marshall Harlan II, judicial restraint, and all agree that Korematsu, Plessy v. Ferguson, Lochner, and Dred Scott are the worst Supreme Court decisions ever handed down. And senators have demonstrated a reluctance to be satisfied with nominees' attempts to differentiate their personal views on a matter, like abortion or gay rights, with their acceptance of the court's decisions in these areas as a matter of law. Some senators, in fact, have even shown a reluctance to accept the distinction you proffer between stating one's views and not committing one's self to declaring an intent to vote one way or the other.

Thus, I'd ask what kinds of questions would you propose that could plumb a nominee's views without asking him to commit, in advance, to particular positions? And what sorts of answers should be seen as disqualifying
The debate will last all week. Some may also be interested in reviewing my debate with Cass Sunstein on the so-called "Constitution-in-Exile" movement--which is not irrelevant to today's debate--which you can find here.

Monday, July 25, 2005

Wayne Allard will not seek re-election:

So predicts my dad, Jerry Kopel, in his most recent column. My dad, who served in the state legislature with Allard, notes that Allard was always a man of his word, and Allard has repeatedly pledged adherence to a two-term Senate limit. Another recent article by my dad looks at Governor Owens' veto of a bill which would have stopped the General Assembly from raiding dedicated trust funds, in order to pay for general spending.

Mauro on Roberts: In today's Legal Times, Tony Mauro takes a very interesting look at how John Roberts might influence the other Justices if he is confirmed by the Senate.
Roberts and the Federalist Society:

The media's new obsession over whether John Roberts is or was a member of the Federalist Society is pretty foolish. I know members whose political views range from moderate conservatives (more moderate than, say, O'Connor or Kennedy) to Christian rightists to libertarian anarchist individualists. Judicial philosophy ranges from Borkean anti-judicial review views to Randy Barnettian presumptions of liberty. In short, membership in the Federalist Society tells you nothing about a nominee except that he or she is not "on the left", which one presumes would be true about any Bush Supreme Court nominee.

Polsby and Rosencrantz on Rumsfeld v. FAIR:

Dan Polsby, author of the amicus brief in the Rumsfeld case mentioned here recently, and FAIR's lawyer Josh Rosencrantz, discuss the brief in "The Wisdom of Solomon?"

Letter to the Post: Give Us Liberty: My son Gary, who is interning this summer at the Cato Institute, had his letter to the editor published today in The Washington Post. I believe this is a first for an offspring of a Volokh Conspirator.
Sean Sirrine's Blawg Round-Up:

Sean Sirrine's always useful and informative Blawg round-up (#16) is now available here. The Alabama castration bill was one that I hadn't heard about.

The Legal Realities Behind the Blogging Revolution: Here is announcement from the Boston University Journal of Science and Technology:
Boston University Journal of Science and Technology Law announces a Colloquium, to be held February 11, 2006, to consider the legal complexities facing the growing blogging community. Our goal is to collect a body of scholarship on the legal issues bloggers face in order to provide courts with some guidance as cases are litigated in these areas. We therefore welcome submissions from a broad and diverse range of voices and research areas: practitioners, judges, activists, and academics.

Some questions to consider:
• Are bloggers journalists? If so, what liabilities and privileges do they have?
• How do intellectual property laws affect what bloggers can or cannot post?
• What are the ethical issues bloggers need to consider?
• Can bloggers be fired for blogging?
• How does the First Amendment apply to blogging?
• How do jurisdictional boundaries, international and domestic, affect the legal issues
potentially raised by blogging?
• How do any of these issues change with the introduction of syndication, inline advertisements or tip jars, podcasting, or multiple authors on a single blog?

Paper proposals should include an abstract of no more than 1200 words, as well as the author’s curriculum vitae. Please send proposals via e-mail in Word document format to by September 1, 2005. Your subject line should read: Colloquium Paper Proposal: [Title]. The
Journal will announce its decisions by October 1, 2005. Papers from the Colloquium will be published in Volume 12 of the Boston University Journal of Science and Technology Law.
To learn more about and contact the Journal, click on the link above or send an email to jstl (at) bu (dot) edu.
Article on Bankruptcy Reform and Original Understanding of the Bankruptcy Clause:

Very informative and balanced article by Julie Reynolds in the latest issue of the DC Bar Magazine here. She interviewed me for the article.

My only quibble with this excellent piece is that there is a common mistake at the outset, which is that the Bankruptcy power in Article I, sec. 8 of the Constitution was not actually put into the Constitution just to help debtors. This is usually quite surprising to most people. It was actually put there in large part to help creditors as well--like the Contracts clause, Fair Faith and Credit, and prohibition on state issuance of paper money, Congress's power to "enact uniform laws on the subject of bankruptcies" was designed to enable creditors to collect interstate debts more easily and to eliminate the power of state legislatures to try to discharge the debts of their residents (as often was the case during the Articles of Confederation era). In particular, states used their laws to pass pro-farmer laws that interfered with the ability of banks to collect on farm loans and vesting the Bankruptcy power in the federal government was an effort to restrict the excesses of state legislatures under the Articles.

So, while to modern sensibilities we have come to think of bankruptcy as being primarily about the benefit of the discharge to debtors, under the original understanding of the Bankruptcy clause, it was to a large extent a pro-creditor provision as well. To the extent that it benefited debtors as well, it was primarily intended for commercial debtors such as New England merchants, not what we would today call consumer debtors. In fact, some states retained debtors' prisons for consumer debt well into the 19th century.

The argument is actually more complicated that that and turns to some extent on an interesting linguistic debate over the meaning of the term "bankruptcy," which may have had a very specific meaning at the time, applying only to business, not personal insolvency. For centuries, under English common law, only merchants and traders could be declared “bankrupt,” which enabled them to have their debts discharged upon the satisfaction of certain requirements. By contrast, non-merchants had to seek refuge under “insolvency” laws, which did little more than to release a debtor from debtor’s prison but did not discharge the debtor from his indebtedness. Thus, many understood the Constitution’s grant of power to Congress to regulate “bankruptcies” as creating federal power to regulate only with respect to merchants and traders and not with respect to those individuals traditionally subject to “insolvency” laws, which remained under State control. Others argued that this traditional distinction between had disappeared by the mid-Eighteenth century, such that by the time of the Constitution, the terms became interchangeable so as to give Congress the power to regulate all insolvent debtors.

So for originalists, the open question is whether the traditional distinction was still valid at the time of the Constitution. For the Supreme Court, by contrast, the issue was resolved in 1819 when it ruled that the term "bankruptcy" was not a term of limitation, thus Congress could regulate in both realms (although Congress chose to do so only sporadically during the 19th century, leaving debtor-creditor relations mainly to the states).

I actually have a short essay coming out on the original understanding of the Bankruptcy Clause (as well as the Coinage Clause) but the volume in which it is to be published has been long delayed. Here's an excerpt from that essay on the original understanding of the Bankruptcy Clause:

The Bankruptcy Clause of the Constitution was one Congress’s several delegated powers in Article I, Section 8 that were designed to encourage the development of a commercial republic and to temper the excesses of pro-debtor State legislation that proliferated under the Articles of Confederation. Under the Articles of Confederation, the States alone governed debtor-creditor relations, and that led to diverse and contradictory State laws. It was unclear, for instance, whether a State law that purported to discharge a debtor of a debt prohibited the creditor from trying to collect the debt in another State. Pro-debtor state laws also interfered with the reliability of contracts, and creditors confronted still further obstructions in trying to use State courts to collect their judgments, especially when debtors absconded to other states to avoid collection.

A coherent and consistent bankruptcy regime for merchants was also required for the United States to flourish as a commercial republic. The Bankruptcy Clause helped to further the goals of uniformity and predictability within the federalist system. As James Madison observed in Federalist Number 42, “The power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different States that the expediency of it [i.e., Congress’s power to regulate bankruptcy] seems not likely to be drawn into question.” As Madison suggests, there was little debate over and little opposition to the bankruptcy clause at the Philadelphia convention. Although State law continued to govern most routine debtor-creditor relations, Congress had the authority to override State laws dealing with insolvency.


To clarify the federal-state balance perhaps contemplated by the originalist theory described (which, as noted, remains open to contention)--under this theory Congress could enact "bankruptcy" laws (dealing with discharge of debt) and the states would remain in charge of enacting "insolvent" laws (which historically dealt with release of debtors from debtor's prisons). In Sturges v. Crowninshield (1819) Justice Marshall basically punted the originalist question and held that even if the dividing line between the two was contemplated in Art. I sec. 8, it would be too difficult for the Supreme Court to enforce the line judicially.

Related Posts (on one page):

  1. More on Original Understanding of the Bankruptcy Clause:
  2. Article on Bankruptcy Reform and Original Understanding of the Bankruptcy Clause:
Housing Bubble Update:

Two interesting items:

(1) I rent a townhouse in Arlington, VA. When I rented it in June 2000, the management company held a two-hour open house, and within two days had received thirteen contracts. Five years later, with local housing prices have almost tripled, the house is back on the rental market at an 18% higher rent. It's been on the market for a week, but only five people have come to look at it. If the bubble is not a bubble, but is purely driven by increased demand for housing, I don't see how one can explain this anomaly.

(2) The local Arlington newspaper reported this week that condo sales last month were down 33%. Condo sales is the most speculative, and overpriced, part of the local market. A very large percentage of condo buyers have no intention of occupying the condos, but instead plan to rent for a short time (or not at all) and then "flip" their condo. The severe decline in condo sales suggests that flipping is becoming increasingly difficult, which means that the most speculative part of the market seems to be cooling down.

UPDATE: (3) Just heard on the radio that last month housing inventories (number of houses for sale) in the D.C. area rose last month from 23,000 to 35,000.

Good Luck on the Bar:

A reader writes:

The class of 2005, about to take the bar exam, is the first class that had your blog all through law school -- aren't we? That is, if your blog were a law student, it would have graduated in our class and would be taking the bar right along side us. So won't you wish us luck this week?

You bet -- best wishes on the bar, and on what comes after!

Supreme Athletes:

Everyone knows that Justice Byron White was a noted professional football player; but now I learn from a reader that when Chief Justice John Marshall was a young lieutenant during the Revolutionary War, he was known for his "athletic prowess in footraces and jumping contests" and was supposedly able to "leap over obstacles six feet high." (See Joseph Ellis, His Excellency 199 (2004).) The latter assertion strikes me as pretty improbable, but I pass it along for whatever it's worth . . . .

[Puzzleblogger Kevan Choset, July 25, 2005 at 11:14am] Trackbacks
What do these people

have in common? (An easy one to start out the week...)

Elton John

Larry David

Babe Ruth

Marc Anthony

Have You Ever Been a Member of the Federalist Society?

I don't think the Senate Judiciary Committee will have to go so far back to find a script for questioning Judge Roberts about his alleged connection to the Federalist Society. This is one issue they're quite good at investigting already. For instance, when Judge Edith Brown Clement was nominated to the U.S. Court of Appeals for the Fifth Circuit, Senator Leahy asked her the following questions (submitted in writing):

  • Describe the Federalist Society's Advisory Council and your role as a member of it.

  • Describe the Federalist Society activities (including activities of the Advisory Council) in which you have participated as a federal judge.

  • Describe the Federalist Society activities (including activities of the Advisory Council) in which you have participated as a federal judge.

  • Describe the ways in which your membership in the Federalist Society and/or its Advisory Council has influenced your decisions as a judge.

  • Are there any cases or categories of cases in which your membership in the Federalist Society would cause you to recuse yourself?

  • What does it mean to be a member of the Federalist Society as a judge?

  • Do you share a judicial philosophy with the Federalist Society?

  • With what (if any) Federalist Society positions do you disagree?

  • Describe the Federalist Society activities in which you participated as an attorney.

  • Did you consider resigning from the Federalist Society when you became a judge? If not, why not?

And who can forget Senator Dick Durbin's grilling of Viet Dinh over whether he was a member of the Federalist Society and was familiar with the phrase "the Constitution in Exile." Don't worry, Orin, they'll get to the bottom of this.

UPDATE: Let me add a clarification of my own. I am more bemused than alarmed by the line of questioning above — as I am by all the speculation about whether Judge Roberts was ever a Federalist Society member. As Marx observed (and I paraphrase): history repeats itself — first as tragedy, then as farce.

UPDATE: The Federalist Society is not the only group to receive this treatment of late. In March 1998, Senator Leahy noted that Clinton judicial nominee Susan Graber had been grilled about her connection to the ACLU:

At her confirmation hearing, she was interrogated about two briefs that she had filed a number of years ago, in 1982 and 1984, in connection with cases being pursued by the ACLU. She was asked whether she is now or ever has been a member of the ACLU. She was asked whether she personally agreed with a number of positions taken recently by the ACLU. I objected to this line of questioning at the hearing and caution the Senate that we are headed down a road toward an ideological litmus test that does not well serve the Senate, the courts or the American people.

Is Roberts a Fellow Traveler?: The Washington Post has a front-page story today reporting that John Roberts was listed in a 1997 document as a member of the steering committee of the Washington DC lawyer's chapter of the Federalist Society. Being on the steering committee was apparently an honorary position and didn't require Federalist Society membership, but the revelation that Roberts may be a fellow traveler has some urging the Senate to get to the bottom of his connection with the Federalists. (If anyone in the Senate needs a script, I recommend that they try to avoid this one.)

  UDPATE: I have reworked the last sentence to minimize the risk that a reader would assume I am equating this issue with the McCarthy hearings, which at least one commenter seemed to believe.
Alumni Democracy in Hamilton College Trustee Election:

Hamilton College is having its first Trustee election in 30 years this year. From what I understand, typically their Alumni Council nominates a slate, and if there is no opposition, there is no election. This year, however, a group of intrepid alumni have used a long-dormant petition process to get their names on the ballot and spur an election. I don't know any of the petition candidates, but from what I can gather, the restrictions on candidate speech appear to be quite severe. The candidates also have specified a number of very specific concerns about Hamilton that animated their candidacy, including their own Ward Churchill imbroglio and hiring Susan Rosenberg to teach a class (events which FIRE describes and has some links). FIRE and ACTA discuss the Hamilton situation.

The Hamilton College Alumni for Governance Reform has established a blog or bulletin board of sorts to cover election events. Interested Hamilton College alumni might want to check it out. I understand that balloting ends on August 15, and balloting there seems to be by paper ballot only.

I obviously have no opinion on the merits of this race and don't know or endorse any of the candidates. But, needless to say, I am intrigued by efforts at other colleges to open up the alumni trustee election process, especially through use of the ballot petition process.

QUESTION THE COURT: Blogging is likely to remain light as I teach at an IES seminar here in Gummersbach, Germany, but you never know.

In the meantime, Ryan Sager has an interesting column on the confirmation process in the New York Post called Question the Court. Here is how it begins:
Either judges are fallible human beings, prone to substituting their own biases for sound constitutional reasoning at the clack of a gavel, or they're cool-blooded automatons, applying the Constitution to specific cases in a way not dissimilar to old punch-card computers.
If they're computers, a check of the specs should do just fine for vetting a nominee to the Supreme Court like Judge John Roberts (Harvard, check; appearances before the Supreme Court, check).

But if they're human beings — as President Bush and many in his party have made clear when criticizing "activist judges" and a runaway judiciary over the years — then it matters quite a bit what a nominee actually thinks.

About Roberts, so far the American people have been told . . . not much.
Here is how it ends:
Roberts may have more solid "conservative" credentials than, say, David Souter did. But that's hardly enough reason for the Senate to confirm, essentially, a blank slate.

Roberts should be grilled.

He should be asked his views on everything — from the Second Amendment to the Commerce Clause to the Takings Clause.

And he should answer. We're not buying a computer. We're trusting a human being with the care of our Constitution.
What is in between is interesting too.


Sunday, July 24, 2005

Article on Bolling v. Sharpe:

SSRN has posted my article, "Bolling, Equal Protection, Due Process, and Lochnerphobia," forthcoming in the Georgetown Law Journal. Here is the abstract:

In Brown v. Board of Education, the United States Supreme Court invalidated state and local school segregation laws as a violation of the Fourteenth Amendment's Equal Protection Clause. That same day, in Bolling v. Sharpe, the Court held unconstitutional de jure segregation in Washington, D.C.'s public schools under the Fifth Amendment's Due Process Clause. Fifty years after it was decided, Bolling remains one of the Warren Court's most controversial decisions.

The controversy reflects the widespread belief that the outcome in Bolling reflected the Justices' political preferences and was not a sound interpretation of the Due Process Clause. The Bolling Court stands accused of inventing the idea that due process includes a guarantee of equal protection equivalent to that of the Fourteenth Amendment's Equal Protection Clause.

A careful analysis of Bolling v. Sharpe, however, reveals some surprises. First, the almost universal portrayal of Bolling as an opinion relying on an equal protection component of the Fifth Amendment's Due Process Clause is incorrect. In fact, Bolling was a substantive due process opinion with roots in Lochner era cases such as Buchanan v. Warley, Meyer v. Nebraska, and Pierce v. Society of Sisters. The Court, however, chose to rely explicitly only on Buchanan because the other cases were too closely associated with Lochner.

Another surprise is that the proposition that Bolling has come to stand for, that the Fifth Amendment prohibits discrimination by the Federal Government, was not simply made up by the Supreme Court, but has a basis in longstanding precedent.

Finally, Bolling is an important example of the distorting effect of Lochnerphobia on Supreme Court jurisprudence. Bolling would have been a much stronger opinion had it been willing to explicitly rely on Lochner era precedents such as Meyer, and to employ a more explicitly Lochnerian view of the Due Process Clause.