Saturday, September 3, 2005
Brief Hurricane-Related Thought:
I've read in several places that funding was recently cut for protecting New Orleans from a flood like the one that just occurred. If that's true, it's a damning indictment of the Republicans, especially the Republican Congress. Since 1998, Congress has been on a profligate spending spree unmatched since at least the Johnson Great Society years. There seems to consistently be plenty of money available for all sorts of grotesque pork barrel spending, as in the recent highway and energy bills. Yet, apparently, not enough money for basic government functions. For quite some time now, it's been apparent that the guiding principle of the Republican majority in Congress is "spend and spend, elect and elect," and they deserve to be tossed out on their butts [update: unfortunately, it's not as though the Democrats have shown themselves to be paragons of fiscal virtue--their only response to any Republican actions, other than related to the military, has been "spend even more money"]. For that matter, the president has neither disciplined Congress (no vetoes of any spending bills!) nor tried to restrict the federal government to anything resembling its valid functions (No Child Left Behind, anyone?) On domestic economic policy, at least, I often find myself yearning for Bill Clinton!
UPDATE: Two issues regarding New Orleans: (1) funding for the Corps of Engineers, which was not actually cut, as several readers have pointed out, with sources; (2) a New Orleans flood was identified by government planners as one of the top 3 potential disasters in the U.S., but, despite literally tens of billions in homeland defense spending, I've yet to see any evidence that this was made any sort of priority. Not at all unusual for government to have misplaced priorities, but as co-blogger Randy consistently points out, the more government does, the less it does well. I'm pretty curious regarding the public choice aspects of all this: were New Orleans and Louisiana Congressmen partciularly incompetent or uninterested in advocating for their area? Have they lacked seats on the appropriate committees?
A reader writes:
1) To refer to the funding decisions as "cuts" is slightly misleading. If the Army Corps of Engineers asked for additional funding and got some, but not all, of the increase they asked for, this is not a cut. And indeed, this would seem to be the situation. Overall funding for the Corps has increased every year under the Bushadministration by roughly $200 million per year; their budget rose from $4.1 billion in 2000 to $5.1 billion in 2005. Funding for flood control in the Mississippi and coastal regions (not counting emergency funding) has remained roughly constant at around $320 million per year. The Corps no doubt would prefer a budget twice this size (andsuch might be a good idea), but the fact that they have not received
one does not mean that their budget has been "cut". The proper word would be "increased". (Funding for New Orleans, rather than the region, may have decreased - I keep finding contradictory reports on this - but has clearly gone up elsewhere.)
2) It's ironic that you would praise th Clinton administration. Funding for the New Orleans levees was one of the targets of Clinton's budget balancing efforts, and he "cut" (ie, did not fund at the level the Corps asked for) funding for the project. Not that I blame Clinton! He was merely continuing a very old trend, beginning at
least with Carter, if not earlier. One of the projects the Corps is trying to find funds for was started in 1965, and was supposed to take 10 years. It's been a wee bit more than 10 years, but they're still trying to get the funds out of Congress. (Is it a good and worthwhile use of funds? No idea. But it seems slightly disingenuous to pin the blame for this solely on Bush, or indeed, Republicans, who were not in control of Congress for the entire period.) For examples of Clinton's "cuts", see here.
3) While you certainly didn't say so, I think your post implied that
higher funding by the Bush administration for flood control might have
prevented the disaster. This would seem to be incorrect, since the
levees which failed had just been repaired and upgraded; the "missing"
funding was slated to go to other projects. The levees were designed
to withstand category 3 hurricanes, and there's no reason to expect
they would not have done so, had New Orleans been hit with one. But
it was hit with a much stronger hurricane, and more funding could not
have changed the designed tolerances of the levees. The Corps has
clearly stated that they do not think the lack of funding was the
4) Complete replacement of the category 3 levees with ones designed
for category 5 hurricanes would have helped, and in one of the more
depressing items I've seen, the project was estimated to cost $2.5
billion. It's a tragedy that nobody has funded this, but I don't
quite see why we should blame the current Bush administration and not,
say, the Carter administration - or indeed, why we should blame the
federal government and not the Louisiana state government. I find it
difficult to believe that a state with a yearly budget of $18 billion
couldn't have found $2.5 billion for hurricane-proofing New Orleans
against a category 5 hurricane over the last few decades. What,
precisely, was MORE important?
All that being said, as a fiscal conservative, I've been horrified by
the spending discipline shown over the last few years. I had labored,
during the Clinton administration, under the impression that one could
rely on Republicans for fiscal discipline. The Bush administration
has certainly cleared this up for me, for which I suppose I must thank
them. But funding for the Corps of Engineers is, if anything, an
example of the unrestrained spending increases (up 22.7% in 5 years).
I certainly agree with the overall thrust of your post - but I don't
think funding levels for the Corps represents a "damning indictment"
of the Republican Congress. Then again, I don't think we really need
to look for one, at least on fiscal matters - there's certainly no
William Rehnquist has passed away
according to CNN.
Another Vote for Rudy:
From today's Washington Post:
Gingrich told the Associated Press that the government's performance "puts into question all of the Homeland Security and Northern Command planning for the last four years," and urged Bush to tap former New York mayor Rudolph W. Giuliani (R) to take over the response.
I think that it is a good thing to have Newt agree with me....
Let me add preemptively that that last bit is a joke.
George Mason Law School Hurricane Relief Fund-Raiser:
George Mason Law School students and alumni may be interested in helping out in the following relief efforts, dedicated to one of our own:
!!!ATTENTION - DONATIONS FOR HURRICANE RELIEF FUNDRAISER SOUGHT!!!
The GMU School of Law is working to raise money to donate to the
American Red Cross to benefit the victims of Hurricane Katrina. Our
former SBA President, Todd Heflin, was working as an FBI agent in New
Orleans and has lost his home and belongings. We dedicate these efforts
We will be holding a silent auction on Wednesday, September 7; Thursday,
September 8; and Monday, September 12 with items donated by students and
the community. The auction will be kicked off on Wednesday with a bake
sale. Please come by and bid on items, buy the yummy treats, and
otherwise make a donation to the cause. Donations by check will be tax
Institutions and Katrina:
Lots of interesting commentary on the relationships between economic institutions and Katrina. In addition to Tyler's post yesterday on the economics of levees as public goods, Vic Fleisher asks whether what happened in New Orleans is a natural or man-made disaster. He's right that to a large extent the disaster has been self-inflicted.
And at least some neighboring states that were largely untouched by the natural disaster apparently feel obliged to inflict at least some of the man-made pain upon themselves. Georgia, for instance, has issued an executive order prohibiting "price-gouging" by gas stations that "overcharge" Georgia drivers. I assume that I need not belabor the economic folly of this sort of legislation for our readers (although imposing anti-gouging rules in a state that did not suffer the natural disaster does seem like a new level of political inspiration). But I can't help but note the great irony that the Governor Perdue simultaneously imposed the price caps, thereby eliminate the market forces that provide incentives to conserve fuel, while going on to encourage drivers to conserve fuel by not taking unnecessary trips over Labor Day weekend and by encouraging business to permit their workers to "tele-work" next week. Then, of course, we get to the most amazing part of the announcement:
Perdue said there is no reason to panic about gas shortages and rising prices....
"There does appear to be some spot shortages in unbranded, spot-purchasing service stations," he said. "We expect that to be a temporary problem.
"There is no reason to panic. There is plenty of gas on the way. The only way we would have problems is if people rush out and try to horde and try to accumulate gasoline they won't need for a while."
Well, there is one other way to prevent unnecessary hordeing, as Adam Smith recognized some time ago, but Gov. Perdue seems to think that is the problem, rather than the solution.
On the other hand, seeing pictures of Biloxi and the Mississippi Gulf Coast, we shouldn't forget that there is certainly a pretty big dose of natural disaster here as well. Although I have a question about that as well. Seeing the wrecked casino boats in Biloxi (the fact that they are boats is a function of laws that effectively required them to be built in that fashion) my first impression was that the law magnified the disaster by insuring that the boats would be completely trashed. Now I'm not so sure--while it increased the ex ante risk of destruction of the casinos, I wonder if this will reduce the ex post repair costs, as unlike a traditional building, they can just build these casino boats elsewhere and just ship them back into Biloxi. I honestly don't know how the economic trade-off works here.
I also wanted to recognize Steve Bainbridge's post on "outsourcing disaster relief" which raises some nifty ideas.
Law Profs Letter Opposing Roberts:
Sean Sirrine has a long post critiquing the arguments in the law professors' letter opposing the confirmation of Roberts. I don't agree with all of his critique, but he raises a number of sound questions.
Friday, September 2, 2005
Rudy, George ... Or Someone:
Not to belabor the point, but my point, and I believe Orin's point too, is that there appears to be a leadership vacuum in New Orleans right now. For the past few days it has seemed like no one is in charge, making tough decisions, setting priorities, ensuring accountability, etc. They seem to be simply paralyzed and just responding according to no coherent plan. So regardless of who gets put in charge, the point is that someone needs to be in charge. In part, I think this perception that no one is in charge helps to explain the violence, the video of looting police officers looting, and the rage by the victims that nothing seems to be happening. The point is not to assess blame on anyone, but to simply acknowledge the fact that there seems to be a leadership vacuum that has been generating paralysis and undermining morale among both rescuers and those to be rescued. (One Commenter stated that Haley Barbour is exercising leadership in Mississippi, but I haven't seen enough news coverage of what is happening there to express an opinion.)
I suggested (and still believe) that Rudy is the man to take over the situation in New Orleans, even though I acknowledge those Commenters who note that this is not his home turf and that he does not have the advantage he had in New York of having planned in advance for this. Nonetheless, my instinct is that if anyone could reverse the paralysis and fill the leadership vacuum, it is he. And it is not just public leadership (although as Orin notes, that is an important part of it), it is leadership over the whole process of responding to the situation, such as logistics, decision-making, and accountability.
If the Governor and the Mayor aren't up to the job, maybe Orin is right that by default it becomes the President's job. On the other hand, of course, given the President's other responsibilities, he cannot be the hands'-on guy collecting the information sufficient to make detailed hour-to-hour and day-to-day decisions, although he could provide a public leadership role. My understanding of the bureaucratic chain of command is that this is supposed to be FEMA's job, but FEMA has also demonstrated that it also is not up to the challenge. As I understand it from talking to people in the government, the way this is supposed to work is that FEMA is supposed to direct other federal agencies on how to allocate resources, but has fallen down badly on the job. If FEMA's director can't do the job, get someone in there who can.
Personally, I'm still willing to put Rudy in charge for at least the short term--better late than never. The Governor and the Mayor appear to be down for the count. From what I can tell, is no reason to believe FEMA can collect information about New Orleans logistics better than someone else could, and he sure as heck would provide greater leadership. But, more importantly, Rudy, George, or someone needs to be in charge and exercising both real and apparent leadership right now.
On the other hand, there are now scenes that things are getting back on track. So maybe someone, somewhere is starting to take control of the situation.
Orin on 'Where's George":
It is not my intention to express a strong opinion on the handling of the catastrophe in New Orleans. Like everyone else I only know what I see on TV, and it has been horrific at times. And almost any opinion one now expresses--apart from offering assistance to those in need--can seem like an attempt to exploit this disaster to score a political or ideological point. But I will nevertheless hazard offering two observations.
First, I think we should distinguish attempts at blaming the President for the horrible consequences of the hurricane--as some on other blogs and in the comments are apparently doing--with criticisms of how he is performing NOW in response to events in his capacity as President. I take it that the latter, not the former, was the thrust of Orin's original post. One could completely reject any culpability for these events (via, e.g., theories based on funding for the Corps of Engineers, or National Guard troops diverted to Iraq, etc.) and still be highly critical of the President's current public performance. Whatever one thinks of the former sorts of criticisms, the latter seem perfectly reasonable to offer in a blog--especially from a blogger who might otherwise be more likely to support the current administration. Whatever may or may not be occurring behind the scenes, the President's current public performance is there for all to see and comment on. I cannot say that I have been favorably impressed so far.
Second, government at all levels has obviously not lived up to its promise of being able to anticipate and react to disasters and other social calamities better than nongovernmental institutions. This should not be surprising. Governments are comprised of ordinary human beings with the same limitations of vision and self-interests as those in the private sector (and often, but not always, with far worse incentives)--that is, these human beings confront pervasive problems of knowledge, interest, and power. I have the same reaction every time there are calls for increased government oversight in the aftermath of some failure in the private sector. What gives anyone confidence that government institutions will act with any more prescience? Moreover, it seems often the case that the core functions that are most often used to justify the existence of governments--such as public safety, national defense, and public infrastructure--are often the very tasks that are given short shrift by real world politicians in search of more "elevated," seemingly less pedestrian goals than these. This seems especially the case when the failure to provide these "essential social services" can so often be obscured from public view or, when revealed, responsibility for failure can be shifted to others.
Update: Steve Bainbridge has a nice roundup of other writers who, one way or another, greatly expand on the sentiments of the last paragraph. And it certainly is not "heartless" (in the words of one commentor) to examine the 'root causes' of what seem to be inadequate government responses to this disaster beyond whatever culpability may be attributed personally to George W. Bush.
Update: Lots of good comments in the comment section.
We're now at $40,000 in donations among VC readers, and news of additional $1,000 donations keeps coming in to my inbox. Thanks again to everyone who is participating!
ACS Panel on John Roberts Nomination:
On Wednesday I was on a panel here at Georgetown about the Roberts nomination that was sponsored by the American Constitution Society. It was broadcast live by C*SPAN and is archived and available for viewing on line (using RealVideo) here
. (or click here
and scroll down to program entitled "American Constitution Society Panel on John Roberts Nomination (08/31/2005)") I have not watched it yet myself but am told that I am identified on screen as Marty Lederman at various points in the broadcast. I imagine that this led to Marty getting some irate emails from his fans. I received on email saying that Marty Lederman sure looks a lot like Randy Barnett.
Bush, Blanco, and Blame:
A number of commenters to my earlier post "Where's George?"
raised very good points in response to what was an admittedly inarticulate post. I thought I would respond with two additional (and hopefully clearer) thoughts.
First, I have absolutely no interest in assigning blame. My sense is that the crisis is sufficiently great that we need to be forward thinking right now. Assigning blame looks back; it's something you do when the emergency is over, and you have time to reconstruct what happened and see how you could do better next time. I don't think we're there yet. So for example, while I strongly agree with the many commenters that this should have been a state and local issue, the fact remains that the state and local governments seem to have been overwhelmed by the crisis and are not providing any kind of effective leadership. The key question is what to do next.
Second, a few words about symbolism. A number of commenters argued that whether Bush goes down to Louisiana or stays in DC is merely symbolic, and thus won't actually help anything. I disagree. Symbols matter in times of crisis. Symbols frame mindsets, and mindsets influence conduct. Part of what is so astonishing about the current situation in Louisiana is the sense that no one seems to be in control, or is even willing to take direct responsibility. Right now the home page of CNN is blasting the headline: "WHERE'S THE HELP? STRANDED, SICK, DYING STILL WAITING." I don't know how many days or weeks of such headlines there needs to be before it begins to shake the confidence of the American people in ways that have pretty profound long term implications. But I think someone need to fill the vacuum, even if mostly only symbolically, and I think the only person who can do so right now is the President.
That's my sense of things, at least. I may be wrong; this is far out of my area of expertise, obviously, and I'm just riffing like everyone else. Still, it seems like a very important question so I wanted to address it. Additional comments very welcome.
UPDATE: As of 1:23pm, CNN.com
is now posting what I hope is an important development:
A convoy of military vehicles plowed through the flooded streets of New Orleans on Friday bringing food, water and medicine to the thousands of people trapped at a downtown convention center
Private Use of Deadly Force to Defend Property and Restore Order:
There are certainly many important moral and pragmatic arguments about the propriety of citizens' use of deadly force to defend property or to restore order, especially when the normal go-through-the-proper-channels means of protecting property or deterring crime are absent. Texas law (see secs. 9.41-9.43), for instance gives citizens a fairly broad right to use deadly force to defend both their property and, in many instances, others' property, even under normal conditions.
Based on my quick glance at the statutes, though, I doubt that even the Texas defense would extend simply to shooting looters, chiefly because it requires an attempt to protect or recover (recover for the benefit of the owner, I assume) specific property. The shooting of looters of others' property isn't really aimed at or likely to recover that property for the owner's benefit. Even if the looter can't get away with the TV set, it's unlikely that the owner of the TV set will get it back that way; and shooting for the purpose of generally deterring others' misconduct (as opposed to, for instance, shooting for the purpose of specifically deterring people who are right near the target from looting that particular place) probably isn't covered under Texas law. Moreover, there is still a moral question as to the propriety of such shooting, and the practical matters that Orin raises (and I lean towards sharing Orin's concerns).
But in any event, that's Texas law, not Louisiana law; and it might be worth remembering that, under Louisiana law — which generally (with some exceptions not applicable here) doesn't allow the use of deadly force to defend property — the shooting of looters by private citizens is a crime: the crime of murder. Some might argue that it shouldn't be a crime, either because the Texas rule (or an even broader version of it) is generally right, or because when civil authority collapses citizens have to be able to protect their property (if they're shooting people who are looting their own property) or try to restore order more broadly. And that's all well and good for blogs. But if you are ever put in this position yourself (and I hope none of us ever will be), you might want to keep in mind that, in most states and probably even in Texas, the current criminal law is very much not on your side.
Comments: Please be calm and civil, and if you want to make arguments about the current state of the law, please point to specific legal authorities. In particular, if you want to argue about Texas law, please make sure you have carefully read the statutes I cited.
Related Posts (on one page):
- Private Use of Deadly Force to Defend Property and Restore Order:
- Comment on "Armed Response to Looters":
- Armed Response to Looters:
I think the question for the government response to Katrina is not so much "Where's Rudy?
," as Todd asks below, but rather, "Where's George?
" Rudy Giuliani was an effective leader post-9/11 in part because he assumed control and understood the gravity of the situation. Giuliani was direct, realistic, and 100% focused on the problem, and as the longtime Mayor of the devastated area he was uniquely situated to understand the scope of it.
The devastation of Katrina looks like it is on a larger scale than the devastation of the 9/11 attacks. My sense from news reports is that we're talking about an entire region of the country that is devastated, including a major city lost, at least for now. Plus we're dealing with a problem that is gradually getting worse over a period of days, whereas in the case of 9/11 the incredible devastation occurred quickly and left a problem of response and cleanup. (This is not to minimize 9/11, of course, but rather to point out that the immediate challenge for government here is different, and in many senses more difficult.)
I'm no expert in crisis response, and I don't have any special skills when it comes to putting my finger in the air and getting a sense of the national psyche. But my sense is that given the scale of the crisis, there is really only one person who can take command and be the new Rudy: the President of the United States. And at least so far, President Bush isn't measuring up. The American people want someone who is going to go down to New Orleans and take command and responsibility on the ground, not someone who is going to take an aerial tour of the disaster or have a press conference.
A short history of FEMA:
Courtesy of Kevin Drum, read the whole thing. Hindsight is easy, but what should FEMA be doing?
My view is the following. Many levees are genuine public goods, and should receive government support, from the federal government (e.g., Army Corp; here is a brief history of their involvement) if need be although perhaps not ideally. FEMA should not be in the business of flood insurance, nor should FEMA reimburse local governments for snow plowing. Here is a Cato critique of FEMA. Here is a libertarian article on why a limited governmental response to the Chicago fire was best. Here is another libertarian critique. Here is an AEI article that FEMA invests too much in earthquake safety. Here is an argument that FEMA should not have been made part of the Department of Homeland Security.
Here is a recent piece on cuts to levee subsidies; the news will hurt the Republicans. Here is a short piece on how revenue from airport privatization could have been used to shore up New Orleans levees.
Libertarian readers, do you care to argue the levee should not have been subsidized? Do you favor real privatization, not as a Port Authority or Federal Reserve may be private, but in the true market sense? (Here is a short history of the Louisiana levee authorities; their status has evolved over time.) If you take that position, you have a few alternatives:
1. We rely too much on unreliable levees, and privatization/non-subsidization would reveal their true social costs and induce people to move elsewhere.
2. A privatized, non-subsidized levee would engage in a successful long-term contract with city residents; see the Demsetz-Williamson debate. The government still would have to force residents to make the relevant tax payments, for free rider reasons.
3. A levee contract could be written without use of coercive taxation; see this piece on assurance contracts.
4. A private levee authority would invest in water safety out of fear of being sued. Furthermore these ex post legal incentives would be reliable and would not involve more government intervention than ex ante regulatory incentives.
5. A private levee authority would be forced by its insurance company to build good protection and also hold huge capital reserves. Their cost of capital and costs of production would remain lower than the government's. You can hold this position in conjunction with #3, or believe that coercive taxation would remain necessary. But in any case it probably requires reliance on #4.
I am not willing to defend any of these five positions, but what do you say readers? The current government system, obviously, does not have a sterling record. Comments are open, and note I have placed a similar post at MarginalRevolution.com (with separate comments), Eugene has suggested I do some selective cross-posting.
It now seems evident that state and local officials in New Orleans are not up to the task of dealing with the myriad of problems associated with hurricane relief and response (relief priorities and logistics, crime control, evacuation, etc.). And judging from the various Senators and other empty suits from the federal government who crossed my tv screen last night, it also appears that the feds are not going to provide much help either (Rep. Bobby Jindal was the only one that I saw who inspired any confidence in the slightest).
Given the mounting crisis nature of the situation, the best (only?) solution I can see is to bring in Rudy and put him in charge of coordinating relief efforts in New Orleans. From what I can tell, he is the only one with even the slightest potential of getting control over the situation and bringing order to the place. Call him a federal relief Czar or whatever, but get him down there and put him in charge asap.
Thursday, September 1, 2005
Did Orin Inspire Warrick?
Atlanta Falcons running back Warrick Dunn has challenged every NFL player on every team except for the New Orleans Saints to donate $5,000 to hurricane relief efforts. Speaking on ESPN, he said Atlanta Falcons players alone will contribute at least $260,000. (The NFL itself has pledged $1 million.) This isn't enough to make me a Falcons fan, but it impressed me as a commendable and noble commitment.
Law Schools Open Their Doors to Displaced Law Students:
I'm glad to see this
Katrina Relief Challenge Update:
News of more $1,000 donations keep coming in; by my count, we're now at 32 donations for a total of $32,000 in relief. A number of the donations are group efforts, too. Thanks again to everyone who is participating.
Cheap at Half the Price:
I'm pleased to report that one of amazon's third-party sellers offers a used first edition (not the current edition, which is the second) of my Academic Legal Writing for the low, low price of $56.05. Now that's what an author, who gets royalties from new book sales but not used book sales, likes to see.
McCormick Tribune Foundation Hurricane Relief:
From The McCormick Tribune Foundation Hurricane Katrina Relief Campaign:
The McCormick Tribune Foundation Hurricane Katrina Relief Campaign has
been established as an effort between McCormick Tribune Foundation and many
of its Communities Program Partners to raise money for victims of Hurricane Katrina. The McCormick Tribune Foundation will match the first $2,000,000 contributed to the campaign at 50 cents on the dollar. All administrative costs will be paid by the foundation so that all funds can be distributed directly to disaster relief organizations that provide short and long-term aid to those affected by Hurricane Katrina.
Information on how to contribute here.
CNN is currently reporting that the situation at the New Orleans Convention Center has gotten so bad that they're no longer going to be waiting for buses to bus people out of town. According to CNN, the thousands of people in the Center are going to try to march out of town on foot. Stay tuned.
Comment on "Armed Response to Looters":
In response to David Kopel's post
below, my own view is that encouraging vigilante groups in New Orleans to "shoot on sight" whoever they believe is a looter without a valid necessity defense is tremendously dangerous. Such an approach would only help undermine the social order by turning New Orleans from a looting zone into a shooting zone.
Among the problems is that looters can get guns, too, and presumably will try to shoot on sight the "armed citizens" that are trying to shoot them on sight. For that matter, armed looters will presumably say that they are "armed citizens" looking for looters, and will just shoot "citizens" and claim that be believed that they were looters. Who will be able to tell, given that the other side will by then be dead? The looter/armed citizen line is nice and clear in theory, but things get fuzzy and hard to reconstruct in practice. I would rather not encourage the latter to kill the former as a way of restoring social order.
I strongly believe in self-defense, and this is particularly true in the horror of the developing situation like that in New Orleans. But encouraging armed vigilante groups to "shoot on sight" when they see what they think is "looting of concern" (as opposed to necessity-based looting, which is apparently quite okay and even laudable) in a city that is being evacuated seems to me, well, a really really bad idea. Others may disagree, of course, so I have enabled comments. Please note: I realize that these are particularly anxious times, but I am going to be quite relentless in deleting comments that are not civil, respectful, and on point.
Armed Response to Looters:
I will be on NRAnews today, at 5:20 p.m. Eastern Time, to discuss citizen response to the New Orleans looters, along with some thoughts about the surge in gun ownership that followed 9/11. You can listen/watch on the web, or on Sirius satellite channel 141. My view on the looting is that it is reasonable, under the legal excuse of Necessity, for a person to take food from a store, if no other food is available in the disaster zone. Such a person would be obligated to remember the value of the food, and to make payment for what he took as soon as practically possible. However, the looting of concern in New Orleans isn't Jean Valjean taking bread for his children; the looting involves attacks on hospitals to steal their narcotics, and attacks on stores or homes which have nothing to do with acquiring necessities for short-term survival. Given the absence of a sufficient police presence in order to stop the looters, I strongly agree with Glenn Reynolds that such looters should be shot on sight by armed citizens. A citizen's arrest and detention isn't possible as a practical matter. Shooting the New Orleans looters is, under present circumstances, an appropriate response to the collapse of civic order, and a first step towards the restoration of that order.
New Orleans Lawyers:
The human toll of the hurricane is almost too much for me to even contemplate. But just think about one small bit of it--the effect on New Orleans lawyers and the legal system. Consider this email today from a New Orleans lawyer. I hope that it won't turn out to be this bad, but it is astounding to contemplate to possible effect on the justice system:
5,000 - 6,000 lawyers (1/3 of the lawyers in Louisiana) have lost their offices, their libraries, their computers with all information thereon, their client files - possibly their clients, as one attorney who e-mailed me noted. [T]hey are scattered from Florida to Arizona and have nothing to return to. Their children's schools are gone and, optimistically, the school systems in 8 parishes/counties won't be re-opened until after December. They must re-locate their lives.
Our state supreme court is under some water - with all appellate files and evidence folders/boxes along with it. The 5th Circuit Court of Appeals building is under some water - with the same effect. Right now there may only be 3-4 feet of standing water but, if you think about it, most files are kept in the basements or lower floors of courthouses. What effect will that have on the lives of citizens and lawyers throughout this state and this area of the country? And on the law?
The city and district courts in as many as 8 parishes/counties are under water, as well as 3 of our circuit courts - with evidence/files at each of them ruined. The law enforcement offices in those areas are under water - again, with evidence ruined. 6,000 prisoners in 2 prisons and one juvenile facility are having to be securely relocated. We already have over-crowding at most Louisiana prisons and juvenile facilities. What effect will this have? And what happens when the evidence in their cases has been destroyed? Will the guilty be released upon the communities? Will the innocent not be able to prove their innocence?
It is pretty amazing to think that not only are the files for many cases likely damaged beyond all repair, but unlike more focused disasters, the swath of destruction was broad enough to wreck the back-up files that lawyers and clients might keep in their own offices as well. And this presumably applies to medical files, financial records, etc., as well. Truly staggering.
What a Factoid:
Samuel Dickstein was a Democratic Congressman from New York for over 20 years. In 1934, his concern about pro-Nazi activity in the U.S. led him to help establish what eventually became the House Un-American Activities Committee, which of course moved from investigating fascists and Nazis to investigating Communists.
He is also apparently the only Congressman known to have spied for the Soviet Union while a member of Congress.
Thanks to Prof. Gary Alan Fine (Northwestern University), whose talk pointed me to this story.
Check out my crossword in today's New York Times. You can see the Puzzleblogger's name on it if you look really closely. The theme relates to something that all you puzzle-oriented people should be pretty familiar with.
You can do it online here, but you'll need a crossword account (different from the regular NY Times account). If you can't get it in print or through the Times site, email me at [my last name]@gmail.com and I'll send you a pdf.
I welcome your feedback in the comments.
$26,000 For the Hurricane Relief Efforts:
Great news — twenty-five members and groups of the VC community have pledged to match my donation to the hurricane relief efforts. That means that each of us will be giving $1,000 to the charity of our choice that is helping with the relief efforts, for a total of $26,000. I'll be making my donation to the Red Cross shortly.
Our effort obviously is just a molecule in a drop in the bucket for a tragedy of this size, but at least it's a start. My personal thanks to everyone who has participated. And if you're a VC reader and are interested in matching with a $1,000 donation of your own, please let me know; it would be great if our $26,000 start continues to grow.
More Evidence . . .
. . that the Internet is either the last gasp of civilization as we know it, or proof that mankind's highest calling is to find as many outlets as possible for goofing around. The Fantasy Drafts website,where participants, instead of the usual boring football or baseball fantasy teams, put together teams by drafting States, or Simpsons characters, or or Beatles songs, etc.
International Best of the Blogs Awards:
Deutsche Welle is running the contest, starting today.
Only Two More to Go:
I am delighted to say that 18 VC readers (or, in some cases, pooled groups of readers) have committed to match my donation. I'm pretty confident that we'll be able to find at least two more generous readers who can help push us over the top to each give $1,000. Many thanks to those who are participating already, and thanks in advance to those who plan to join in soon.
The ACLU and Me:
Some bloggers seem to be publicly dropping their links to InstaPundit because of his having worked with the ACLU, and calling "demonizing the ACLU is a bit silly," and saying "I do feel that they've become overly partisan in recent years, but they still do good work". Given this, I think that people ought to know that (1) I am working with the ACLU now on a free speech case in Michigan, (2) I've worked with them on opposing the anti-flagburning amendment and the victims' rights amendment, (3) I have defended them from what struck me as unwarranted attacks here, here, and (4) I have praised their positions here, here, and, I'm sure, elsewhere as well.
I have also criticized the ACLU's positions on other matters in places too numerous to mention (do a search for ACLU on this site and you'll find quite a few), as have my cobloggers. I think demonizing the ACLU, like lots of other over-the-top rhetoric, is indeed a bit silly and counterproductive, and tends to lead the demonizer into factual and logical errors. If you think this puts me in league with the demons, why, you know what to do.
The Washington Post
has a powerful news analysis piece on the future of New Orleans. That future is uncertain, of course, but the Post paints an incredibly sad picture that I don't have reason to question:
First they have to pump the flooded city dry, and that will take a minimum of 30 days. Then they will have to flush the drinking water system, making sure they don't recycle the contaminants. Figure another month for that.
The electricians will have to watch out for snakes in the water, wild animals and feral dogs. It will be a good idea to wear hip boots and take care of cuts and scrapes before the toxic slush turns them into festering sores. The power grid might be up in a few weeks, but many months will elapse before everybody's lights come back on.
By that time, a lot of people won't care because they will have taken the insurance money and moved away — forever. Home rebuilding, as opposed to repairs, won't start for a year and will last for years after that.
Even then, there may be nothing normal about New Orleans, because the floodwater, spiked with tons of contaminants ranging from heavy metals and hydrocarbons to industrial waste, human feces and the decayed remains of humans and animals, will linger nearby in the Gulf of Mexico for a decade.
Wednesday, August 31, 2005
Israeli Cups Used in Saudi Hospital -- Once:
has the story. Don't worry: "the matter is being investigated and action will be taken."
John Roberts Was Member of Columbia House Record Club:
This is a few weeks old
, but pretty hilarious. It's worth a click even for the picture alone.
Almost at $800:
If my count is correct, we're now at 14 matchers (some of them pooled efforts, which is great). One more match will push us to $800. And more importantly, we only need 6 more to get to $1,000 each, for a total of $20,000.
I know a lot of VC readers are law firm associates and partners who are pulling in the big bucks. A few have donated already, but I'd say that the percentage of current matchers coming from megafirm lawyers is much lower than it should be. Does anyone want to step up and correct that? Plus, if we get six more matches I promise to stop annoying you with repeated posts.
Roberts = Bork?
I'm not the only one with a sense of deja vu. Duke law professor Erwin Chemerinsky writes of the Roberts confirmation debate, "the parallels to the fight over Bork are striking." Both Bork and Roberts were nominated to replace "swing" justices (Powell and O'Connor, respectively); both have "impeccable academic and professional qualifications"; and both are quite conservative. For this reason, Chemerinsky maintains, " Democrats must oppose Roberts." The last point is where Chemerinsky and I disagree.
[NOTE: This post has been corrected. I originally wrote Chemerinsky is a professor at USC -- as he was during the 1980s -- when he's actually at Duke. This was an error, and the text has been revised accordingly.]
Jurisprudence of Justice Stevens:
Fordham Law School, in New York, is holding a conference on this on September 30 and October 1. There'll be lots of very interesting academic panelists, and Justice Stevens will be there, and will deliver remarks.
I generally don't post announcements of local conferences, but the topic of this one seems especially interesting. Whether you like Justice Stevens' views or not, they've often been unusual, insightful, and much worth studying.
Up to $600:
We're up to ten matching participants now, so that means we're each in for $600 at this point. Who wants to push us to $800?
The Hurricane's Effects on Lawyers and Clients:
Professor Bainbridge posts an e-mail that discusses this. Naturally, we need to keep this in perspective: Dozens of peoples lost their lives, many more lost their loved ones, and many more still lost a great deal. But it's helpful, I think, to also concretely visualize some of the less obvious effects, effects that might still be quite serious, especially for clients and not just the lawyers.
Circumcision, Male or Female:
A comment to an earlier post raised the question of circumcision more broadly:
Whatever the free excercise clause might mean, I don't think it meant that people could do irreparable physical harm to their children. Likewise, if you have legal guardianship of a child, do you have a legal right to perform other kinds of unnecessary cosmetic surgery? Why stop at circumcision? What is the limit on what harm a parent can do to a child?
We would not accept the mutilation of young girls, no matter how strong the religious convictions of the parent. Why would we accept the mutilation of young boys?
I agree that female circumcision (or, if you prefer, female genital mutilation) should be banned, but that's because it's pretty clearly and severely harmful to the child -- unless I'm mistaken, there's a near certainty of substantial loss of sexual pleasure plus (I think) a substantial risk of other problems.
The matter as to male circumcision, I think, is different. While some people claim that it causes a loss of sexual pleasure, there's a hot debate about this, and there's little reason to think that the loss approaches the loss caused by female circumcision (though it's of course not easy to compare such hard-to-measure matters). There is apparently some evidence that it has health benefits, perhaps modest and perhaps quite substantial. And there's apparently little reason to think that it has significant purely medical risks. Given this uncertainty about (purely secular) costs and benefits, it seems to me that parents should remain free to make this decision themselves. At the very least, the balance is not nearly as stark as it is for female circumcision.
This leaves the argument that the procedure, even if harmless, is an improper imposition on the child, because it's an irreparable (or at least very hard to repair) change to his body, done without his consent. Yet that strikes me as too abstract an objection to be helpful.
Parents do lots of things, physical and otherwise, that can't be easily undone and that the child doesn't consent to (or can't meaningfully consent to). They may perform cosmetic surgery to correct small abnormalities, surgery that they may think is valuable but that the child might one day resent. They may give the child growth hormone to counteract what would seem to be his abnormal shortness. They may decide to get the child's tonsils removed, to avoid recurring but non-life-threatening infections. They may decide to get the child braces, over the child's strong objections.
If these steps seem likely to create significant harms, I can see the need to protect the child from them. But I'm not persuaded that a child has a freestanding right to be free of unconsented-to physical changes by his parents, independently of the harm the changes can cause.
The Jazz World Waits for September 27:
Most jazz fans know that pianist Thelonious Monk and the saxophonist John Coltrane played together briefly in Monk's quartet in 1957. Coltrane had left Miles Davis's quintent in April due in part to Coltrane's herion addiction, and during the summer and fall of that year Coltrane played often with Monk while Coltrane kicked his habit. Coltrane recorded a few tunes with Monk that year; the recordings were assembled and released on the Riverside Label as Thelonius Monk With John Coltrane
. Among jazz lovers, these recordings are prized; Monk is at the peak of his powers, and Coltrane was in an interesting transitional period and is pushed and prodded by Monk to go in all sorts of fascinating directions.
Unfortunately, that one album was the only one Monk and Coltrane made when they were together. The two played together all summer at a New York club called the Five Spot, but no one made a professional recording of the live gigs. Until recently, the only other known recording of Monk and Coltrane together was a recording made by Coltrane's wife one night at the Five Spot using a portable tape recorder and a single mike. It was released in 1993 by Blue Note and is still available as Live at the Five Spot — Discovery!
The music is just marvelous, and very much worth getting, but the recording quality is dismal.
The big news in the jazz world — and the explanation for the title of this post — is that on September 27, Blue Note will be releasing the entire recording of a newly discovered concert with Monk and Coltrane playing together. The recordings were discovered this January in a way that seems straight out of a movie. It turns out that Monk and Coltrane appeared together at a Carnegie Hall benefit concert on November 29, 1957. The appearance was recorded by Voice of America, but everyone forgot about the recording:
The tapes from that evening at Carnegie Hall were inadequately labeled, filed away amongst the Voice of America’s vast collection of recordings, and apparently forgotten until January 2005 when Larry Applebaum, a supervisor and jazz specialist at the Library of Congress, came upon them by accident during the routine process of digitally transferring the Library’s collection for preservation purposes. Applebaum noticed a set of tapes simply labeled “sp. Event 11/29/57 carnegie jazz concert (#1),” with one of the tapes barring the sole marking “T. Monk.”
It's a good story, yes, but what about the music? Well, Blue Note recently made two cuts available on its website for free
— Monk's Mood and Evidence. Listen to them yourself. The music is fantastic, and unlike the earlier known recording, the sound quality is terrific. In a review of the entire album in the New York Sun
, Will Friedwald suggests that the rest of the CD is even better:
. . . [T]he new concert, which amounts to nine tracks and 51 fantastic minutes of music, is a goldmine.
This is the kind of CD that will immediately start turning up on top-10 lists, not only for 2005 but for all time. In the same way that "Kind of Blue" showcases four giants - Miles Davis, Coltrane, Cannonball Adderley, and Bill Evans - in top form, this is a glimpse of two legends at their best.
. . . The music is spectacular - not just as good as the sum of its considerable parts, but even better.
Blue Note has also produced a terrific 8:25 minute video about the album and its discovery that is available here
(click on "Promotional EPK Stream").
UPDATE: I should also point out, for the sake of completeness, that Coltrane also joins Monk on the version of "Monk's Mood" that appears on Thelonious Himself
Some More Thoughts on Deadly Risks to Which Parents Expose Their Child:
I've thought some more about the matter I discussed in my "bloodsucking circumcision" post, and while I still on balance take the view that I described there, I thought it might be helpful to discuss why this question is complex, and what the counterarguments to my view (which is that the practice can and should be banned, if it is indeed dangerous) might be.
1. Magnitude of the Risk: It's impossible, given the data I've seen, to know for sure what the risk of death here is. The New York Times story reports on one death from infant herpes that was apparently linked to the practice of the mohel's sucking the blood from the wound after the circumcision, plus two nonfatal cases, apparently some time between 2003 and 2005. It also reports on New York cases from 1988 and 1998, which apparently weren't fatal (or else I assume the article would have said so).
The article also says the practice is done "more than 2,000 times a year in New York City"; the known death rate thus seems to be about 3 per 100,000 or so, though the true death rate may of course be higher, since it's not clear that all the deaths that might be linked to circumcisions are reported in an easily aggregatable way, or lower, if the practice is more common or if in earlier years there were no deaths (or if it turns out that the herpes in this case stemmed from some other cause).
One possible argument is that the law simply shouldn't protect children against such small risks imposed on them by their parents. Even if it's wrong for parents to expose the children to such risks, at least in some situations, extra regulations of parents have their costs. Just to take one example, say the practice is outlawed, but many parents (though not all) nonetheless continue to knowingly or deliberately use mohels who employ it; and the law is enforced against parents on at least some occasions, usually in cases where the child didn't die (but could have). If parents are imprisoned as a result, the aggregate harm to such parents' other children from the temporary loss of one parent -- and the longterm loss of family assets that would come from the imprisonment -- may ultimately exceed the harm that the law avoids. More broadly, such restrictions on parents aimed at preventing small risks to children may be quite counterproductive; maybe we should forswear governmental power to impose all such restrictions, again when they're aimed at such small risks.
Note, though, that a 3 in 100,000 risk of death from a single act is not chopped liver. Here's an analogy, though you decide for yourselves which way it cuts: In 1981 -- which, to my knowledge, was before infant and toddler car seats got popular -- the yearly risk to babies age 0 to 4 of death in a car accident was 3 per 100,000. If we suppose a requirement that all children under age 5 be put in infant or toddler car seats, and we assume that such seats reduce the risk of death by 20% (I pulled the number from thin air, I confess), that means that the legal mandate of car seats likewise reduces the death rate by 3/100,000/year x 5 years x 20% = 3 in 100,000. Do you think this risk is too small to justify government mandates? I don't know for sure myself, but I leave it to you to consider the analogy. (Note also that the car seat requirement imposes modest financial costs but substantial effort on parents, given that many parents must use the seats nearly every day for 5 years, rather than just one day in the child's life.)
Always remember, of course, that this isn't just a person's deciding to risk his own life. It's a person's deciding to risk someone else's life. As a moral matter, it seems to me that even libertarians should recognize some possible role for the law to step in to prevent such risks, at least at some level (though, as I suggest above, some might conclude that as a practical matter, government intervention may do more harm than good).
2. Religious freedom: But of course there may be more in play here than just the risk the practice imposes on the child, and thus the potential benefit of the law. There's also the potential cost of the law. One reason my reaction is so hostile to the practice we're discussing is that I see it as imposing a modest risk for no benefit. It's one thing when parents impose a risk because there are substantial countervailing advantages to the child, or even to themselves. It's another when the risk seems so pointless.
But of course it's not pointless to many Orthodox Jews -- to them, the benefit, which is obeying God's will, is vast, likely far greater than the danger. This isn't so for all Orthodox Jews, apparently: Many of them think that the important thing is the circumcision, not the particular way the blood is removed; and some others might think that part of God's law is that other laws should be waived to prevent serious risk to life and health (query what the threshold of seriousness is). But other Orthodox Jews do seem to see the practice as religiously mandated. And just as the practice has huge benefits for them, so complying with any ban would impose huge costs for them.
How should the legal system deal with this? One tempting answer is that the legal system must respect the religious group's view of the religious costs. We let parents impose risks on children for certain secular benefits: For instance, if a child has a significant cosmetic defect, I assume we'd think the parents have a right to get the child surgery to correct it, even if the surgery poses some small risk. Likewise, I take it that we wouldn't ban parents from moving to a dangerous part of town, if they feel a need to (for instance, if they are ministers who want to minister to people in that part of town), even if we could show that this would increase the child's risk of being the victim of a homicide over the first 18 years of his life.
Similarly, the argument would go, if we're willing to let people risk their child's life to improve the child's appearance, or to further their own careers or religious callings, we should certainly let them risk their child's life to comply with God's law (which might provide him vast spiritual benefits, though I'm not sure whether that's exactly how Orthodox Jews would characterize compliance with the law).
Yet I don't find that persuasive. We may sometimes let a parent impose even greater risk on a child's life. Say, for instance, that a child is facing a risk of very grave loss of quality of life -- he has a condition that might render him a quadriplegic, or moderately brain damaged. There's surgery available that might avoid this harm, but it involves a 25% chance that the child would die. Naturally, that's a tragic choice, but I doubt that we'd forbid the parent from running that risk (or if you think 25% is too high, think 5%).
Now a religious person says: If I don't expose a child to a 25% risk of death, the child will face not just loss of quality of life, but eternal damnation (loss of quality of afterlife?). I think the child is possessed, for instance, so I need to perform a very dangerous exorcism; or I think that it's necessary for him to drink strychnine in order to be saved. (One religious group did indeed drink strychnine for religious purposes, and this caused some deaths; I'm not sure that they saw such drinking as actually required for salvation, but say they did.) Damnation is a far greater harm in my book than mere paralysis or moderate brain damage. And religious freedom means that the law must treat my estimate of the religious costs of a practice the same way that it treats its own estimates of secular costs.
Can the religious person's argument be right? Surely it can't be, I think; surely we are entitled to prevent him from risking his child's life this way. But that means that the law must explicitly or implicitly ignore his view about the cost of damnation, and the corresponding benefit of the exorcism, and instead limit itself to secular costs and secular benefits (as in the operation-to-avoid-quadriplegia hypothetical).
3. A combination: This leaves one other possibility: Maybe the law should value religious freedom to some extent, but not too much. If the benefit of a law is eliminating a 3 in 100,000 chance of death, and the cost is nil, then the law should be enacted (subject to the practical questions I noted above). But if the benefit is eliminating the 3/100,000 risk, and the cost is interference with religious freedom, then the law shouldn't be enacted. On the other hand, if the benefit is eliminating a 3/10 risk or a 3/100 risk or even a 3/1000 risk, and the cost is interference with religious freedom, then the law should be enacted. The parents' freedom to do what they think their religion commands, and what they likely see as being for the religious benefit of the child as well as for their own religious freedom, thus counts for something but not for everything.
There's underniable appeal to this, it seems to me -- but is it just the appeal of compromise for the sake of compromise, or does it actually make moral sense? For instance, how do we figure out whether religious freedom should be valued at 5% of life, 0.5%, or 0.05%? Also, why should the parents' religious views justify the imposition of even modest burdens on the children, who may ultimately have their own views, and who now have no religious views (at least from our secular legal system's perspective)?
In any case, all this leads me to still tentatively think that the practice probably should be banned, if it does indeed pose a risk to infants' lives. But I hope it helps illustrate why the matter is more complex than it may at first appear.
Incidentally, if you're wondering, the reasons that I take a different view with regard to parents' potentially harmful teachings of children -- even when the teachings may eventually (and not just imminently) lead the children into dangerous behavior -- are described in Part III of my Parent-Child Speech and Child Custody Speech Restrictions.
Related Posts (on one page):
- Some More Thoughts on Deadly Risks to Which Parents Expose Their Child:
- "Bloodsucking Circumcision,"
Up to $400:
Eight VC readers (or pooled groups of readers) have now agreed to match, so the donation amount has been bumped from $200 to $400. Who else is in? Given that the VC gets about 1,000 visits per hour, many by high-income professionals, I can't believe that there are only a handful of people willing to join in. Two more pledges and we'll bump up to $600 each.
Clarifying My Post on Helping the Relief Efforts:
My apologies for the lack of clarity in my initial post about helping the relief efforts. Three points to clarify:
1) While I think it's great that lots of people are willing to give $200, and I urge you to do so, what I am really looking for is readers who are willing to give an amount up to $1,000, depending on how many readers are participating. That is, each of us will give $200 if there are six or fewer of us (counting myself); we'll each give $400 if there are between seven and eleven of us, etc.; $600 if there are twelve to sixteen; $800 if there are seventeen to twenty one; and $1,000 each if we can get more than twenty-one of us to give. How much we're each going to give depends on how many of us are participating.
2) If a gift of this size is beyond your reach, feel free to find friends and pool together funds. For example, if you're a law student and find 9 friends to join in and divide your gift evenly, you'll be committing to give anywhere from $20 to $100. When you have your group together, just let me know by leaving a comment or by e-mail.
3)Each of us will be responsible for giving on our own to the Katrina-related charity of our choice.
Also, thanks to the handful of people who have already agreed to participate. It's much appreciated.
A Break From Math:
What do the following books have in common? (No googling.)
Infinite Jest, David Foster Wallace
The Dogs of War, Frederick Forsyth
Something Wicked This Way Comes, Ray Bradbury
Brave New World, Aldous Huxley
Pale Fire, Vladimir Nabokov
Who Will Join Me?:
The damage from Katrina is just off the charts
, and the relief efforts are going to take months and years and will require tremendous resources
. Who will match me in giving to the relief efforts?
If I can find between one and five VC readers who will agree to match me dollar for dollar, I'll give $200 to the relief efforts today. If I can find between 6 and 10 people who will match me, I'll up my donation to $400. If I can find 11-15 people, I'll give $600; 16-20 people, I'll raise the donation to $800; and if I can find more than 20 VC readers will match me dollar for dollar, I'll give $1,000.
If you're a VC reader and you want to match me, your donation will be anywhere from $200 to $1,000, depending on how many VC readers agree to join us. So who is in? If you are, either leave a comment or send me an e-mail at orinkerr (at) yahoo.com so I can get a head count and know how much to give.
Tuesday, August 30, 2005
Most people are aware that the post-Katrina situation in New Orleans and elsewhere is pretty bad, but it just seems to be getting worse and worse. The latest
New Orleans resembled a war zone more than a modern American metropolis on Tuesday, as Gulf Coast communities struggled to deal with the devastating aftermath of Hurricane Katrina. This video
Deteriorating conditions in New Orleans will force authorities to evacuate the tens of thousands of people at city shelters, including the Superdome, where a policeman told CNN unrest was escalating.
The officer expressed concern that the situation could worsen overnight after three shootings, looting and a number of attempted carjackings during the afternoon.
is also amazing, via Brian Leiter
. As noted earlier, you can donate to the Red Cross relief efforts here
The Danger of Counting Heads as Evidence of Discrimination:
Compare these two arguments — first,
"All you have to do is look at the faculty list for the law or communications schools at Cleveland State University to see impact of clearly racist hiring practices . . . . Fully 90% of the communications department faculty is white, and the department chair has always been held by a WASP. Almost all the law school faculty is white. . . . There isn’t a Mexican-American on either faculty, despite the large, multi-generational Mexican-American community in the Cleveland area."
"All you have to do is look at the faculty list for the law or communications schools at Cleveland State University to see impact of clearly racist hiring practices . . . . Fully one third of the communications department faculty is Jewish, and the department chair has always been held by an American Jew. Almost half of the law school faculty is Jewish. . . . There isn’t an Arab-American on either faculty, despite the large, multi-generational Arab-American community in the Cleveland area."
The first quote is hypothetical; it's a version of the second quote with group identities and numbers changed to take account of the different sizes of different groups. (Given that 2% of the U.S. population is Jewish, and 70% is white, providing a comparably stark disproportion with respect to whites required me to change "one third" and "one half" to "90%" and "almost all," and I used "Mexican-American" instead of black or Hispanic since I wanted a group that was comparable in size to Arab-Americans in Cleveland, which they seem to be, at least as of 1990.)
The second quote is an actual quote from Prof. Edward Abboud, who had been an adjunct instructor at Columbus State Community College, and who says he's been denied further employment because of his ethnicity (and possibly because of his anti-Israel views). The e-mail containing that quote is excerpted here (and thanks to CampusJ for the pointer). I also have a forwarded copy of that e-mail, which I've checked myself. (The e-mail's return address is at the seeming vanity press and public relations company that publishes Prof. Abboud's book, so I assume the quotes are authentic.)
Now I don't think that either quote requires the speaker to be actually anti-Semitic or anti-white. Whether or not Prof. Abboud is anti-Semitic, his arguments could certainly be made by someone who isn't.
But I think both quotes make the same mistake of inferring that racial or ethnic disproportion means "racist hiring practices." If you think there are nonracist explanations for why Jews (or Asians or other groups) are overrepresented in certain fields, then it seems likely that there are similar explanations for why other groups are underrepresented in certain fields. (Note, incidentally, that I'm not sure that Arab-Americans are indeed underrepresented relative to the hiring pool at Cleveland State, but that's irrelevant for the purposes of my argument.)
Moreover, if you really do oppose ethnic or racial disproportion for its own sake -- if you want a "university that looks like America" (or like Cleveland), then you do have to ask yourself: Does a law school faculty that's nearly half Jewish (like ours is here at UCLA) really look like America? In 2004, 34% of freshmen admitted to the UC were Asian, and my recollection that in the past (and perhaps even now) UC Irvine was over 50% Asian; does that really look like America or like California? If the answers to these questions are "no," then either you need to impose quotas on Jews or on Asians, or you need to conclude that it's quite proper for institutions to not mirror the racial proportions of the population.
Parent-Child Speech and Child Custody Speech Restrictions:
Just finished up a law review-ready draft -- I'll be sending it out shortly -- and posted it here. Here's the Introduction, without the footnotes (which are available in the PDF file I linked to):
Percy Bysshe Shelley was a poet and a cad. He married his wife, Harriet Westbrooke, when she was 16, but left her for Mary Wollstonecraft Godwin three years later. When he left, his and Harriet’s daughter was a year old, and Harriet was pregnant with their son.
Two years later, Harriet committed suicide. When Shelley decided to raise the children himself, Harriet’s parents refused to turn them over, and Shelley went to court. Though fathers had nearly absolute rights under then-existing English law, Shelley became one of the first fathers in English history to lose custody of his children.
Percy Shelley was also an avowed atheist -- and the Court of Chancery mostly relied on this, not on his infidelity or unreliability. Shelley shouldn’t be put in charge of the children’s education, the Lord Chancellor reasoned: Shelley endorsed atheism and sexual freedom, and would teach his children to do the same. Twenty years later, Justice Joseph Story likewise wrote that a father could lose his rights for “atheistical and irreligious principles.”
Shelley’s case may look like something out of another time and place. That time and place, it turns out, is 2001 Mississippi, where the state supreme court upheld an order giving a mother custody partly because she took the child to church more often than the father did, thus providing a better “future religious example.” Presumably an outright atheist would be at even more of a disadvantage in a Mississippi child custody dispute.
And if he wasn’t denied custody, he might be ordered to take the child to church each week, as a Mississippi court ordered in 2000, reasoning that “it is certainly to the best interests of [the child] to receive regular and systematic spiritual training.” Arkansas, Louisiana, Michigan, Minnesota, Pennsylvania, South Carolina, South Dakota, and Texas courts also authorize judges to favor more religious parents over the less religious or the irreligious; there are similar cases in 1970s Iowa, Nebraska, North Carolina, and New York.
Likewise, through the past decades, parents have had their rights limited or denied partly based on their racist views, advocacy of Communism, Nazi sympathies, advocacy of pacifism and disrespect for the flag, advocacy of polygamy, defense of the propriety of homosexuality, defense of adultery, advocacy of (or inadequate condemnation of) nonmarital sex, fundamentalism, teaching of religions that make it hard for children to “fit in the western way of life in this society” or that are “non-mainstream,” and teaching of religious intolerance.
The Pennsylvania Supreme Court is now reviewing the polygamy advocacy case, framing the question as “To what extent can the courts limit parents from advocating religious beliefs that, if acted upon, would constitute criminal conduct?” -- a question that could equally apply to parents’ teaching their children the propriety of refusing to fight in unjust wars, the propriety of civil disobedience, and the like. All this is done under the rubric of the “best interests of the child” standard, the normal rule applied in custody disputes between two parents, which leaves family court judges ample room to consider a parent’s ideology.
Courts have also ordered parents not to swear in front of their children, and to install Internet filters. They have also considered, as a factor in the custody decision, parents’ swearing, exposing their children to R-rated movies, exposing their children to pornography, and exposing their children to photos of men in women’s clothing.
Likewise, Texas law leaves custody decisions to juries, and lets jurors consider a parent’s religious “beliefs, teachings, or practices” as part of the best interests inquiry, if the jurors conclude that those “beliefs, teachings, or practices are illegal, immoral, or demonstrated to be harmful to the child.” “[W]hat is immoral or harmful” is to be “left to the jury to apply community standards,” and may include “gambling, playing a lottery, drinking to excess, homosexual conduct, or abortion.” Presumably constitutionally protected speech, if seen as an “illegal” or “immoral” “belief” or “teaching,” could be considered, just as constitutionally protected abortions might be. Many judges and juries are doubtless reluctant to use the best interests standard this way, especially where religious or political teaching is involved. But others are quite willing.
In a second category of cases, courts restrict custody or visitation based partly on a parent’s having said bad things about another parent, or order a parent not to say such things. Sometimes, the parent’s speech might seem like simple badmouthing, perhaps even constitutionally unprotected slander.
But at other times, the restrictions are based on a parent’s expressing broader viewpoints that also expressly or implicitly condemn the other parent. One parent, for instance, was ordered to “make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic,” because the other parent was homosexual. Parents have lost rights based partly on telling their children that the other parent was damned to Hell, or on otherwise criticizing the other parent’s religion. A court could likewise restrict a father’s teaching his children that women must be subservient to men, since such speech might undermine the mother’s authority.
Some restrictions in this category have been based on a parent’s revealing facts that undermine the child’s relationship with the other parent, for instance when a mother accurately told her 12-year-old daughter that her ex-husband, who had raised the daughter from birth, wasn’t the girl’s biological father. And some court orders prohibit the parent from telling the children anything about such orders, presumably on the theory that such discussions are likely to remind the children about tension between the parents, or are likely to be accompanied by explicit or implied criticism of the other parent.
In a third category of cases, some courts have restricted a parent’s religious speech when such speech was seen as inconsistent with the religious education that the custodial parent was providing. The cases generally rest on the theory -- sometimes pure speculation, sometimes based on some evidence in the record -- that the children will be made confused and unhappy by the contradictory teachings, and be less likely to take their parents’ authority seriously. In one case, a court actually ordered “that each party will impress upon the children the need for religious tolerance and not permit any third party to attempt to teach them otherwise,” though it’s not clear how such a vague order could be enforced.
Are these speech restrictions constitutional?
In Part IV, I’ll argue that they generally aren’t, except when they’re narrowly focused on preventing one parent from undermining the child’s relationship with the other. But the observations that lead to this proposal should, I think, prove more interesting to readers than the proposal itself. Here is a brief summary:
1. As I described above, the best interests test leaves courts free to make custody decisions based on parents’ speech, and to issue orders restricting their speech. Courts have taken advantage of this freedom, and will surely do so again. The losers vary depending on which ideology is disfavored at the time in that place: Sometimes they are atheistic and sometimes fundamentalist, sometimes racist and sometimes pro-polygamist, sometimes pro-homosexual and sometimes anti-homosexual. But whoever the losers are, these cases should lead us to take a hard look at this doctrine. And though child custody speech restrictions on ideological speech aren’t routine, upholding them may lead them to become more common.
2. The First Amendment is implicated not only when courts issue orders restricting parents’ speech, but also when courts make custody or visitation decisions based on such speech. Just as the Equal Protection Clause bars child custody decisions that discriminate based on race, so the First Amendment presumptively bars child custody decisions that discriminate based on a parent’s constitutionally protected speech.
3. Even when the parents’ speech is religious, the Free Speech Clause is probably more important than the Religion Clauses, though nearly all the scholarship and most of the litigation has neglected the Free Speech Clause.
4. If parents in intact families have First Amendment rights to speak to their children, without legal prohibitions on speech that is supposedly against the child’s “best interests,” then parents in broken families generally deserve the same rights, except when the speech undermines the child’s relationship with the other parent.
5. Parents in intact families should indeed be free to speak to their children -- but not primarily because of their self-expression rights, or their children’s interests in hearing the parents’ views. Rather, the main reason is that today’s child listeners will grow up into the next generation’s adult speakers: That next generation is entitled to hear a broad range of ideas, without government interference. Restrictions on ideological parent-child speech are a powerful way for today’s majorities or elites to entrench their ideas, and to block their ideological rivals from being heard in the future. The First Amendment is a necessary check on this entrenchment.
6. It may seem appealing to protect speech but only if it doesn’t imminently threaten likely psychological harm to the children, but such an approach will likely prove unhelpful.
Another Anti-Roberts Advertisement:
A new TV ad is out opposing John Roberts, available here
. The voiceover makes the basic point:
In 1991, John Roberts argued for public school-sponsored prayer at graduations, claiming that ceremonies shouldn’t be considered mandatory. Do you believe in an America where Christian students in Dearborn could be forced to read from the Koran, Muslim students in Brooklyn could be forced to pray from the Torah, or Jewish students in Utah could be forced to recite Mormon prayers? Tell your Senators to make sure John Roberts’s America doesn’t become our America.
The case at issue is Lee v. Weisman
, which involved a nonsectarian prayer at a junior high school graduation. I think it's a bit of a stretch to say that Roberts "argued" for the prayer. Roberts was one of five lawyers whose name appeared on the government's amicus brief
supporting the constitutionality of the prayer in that case. The case was argued for the U.S. by Ken Starr, not Roberts.
More broadly, if you read the brief it's pretty clear that it does not endorse forcing students to read from the Koran, pray from the Torah, or recite Mormon prayers. To the contrary, the whole point of the brief was that coerciveness should be the test, and that the government should not be permitted to coerce students but should be permitted to invoke religion in some circumstances in noncoercive environments. The brief argued that permitting a nonsectarian prayer to be read at a ceremony like graduation was usually permissible because there was a basic distinction between coercive environments such as classrooms and noncoercive environments where the invocation of religion was likely to be only ceremonial. In the context of a graduation, the brief argued, the Establishment Clause was more forgiving and "as a general matter" permitted "ceremonial acknowledgments of religion in civic life" so long as they were non-coercive:
The graduation setting at issue here differs markedly from the classroom setting. In the classroom, the school carries out an avowedly instructional mission, and school officials are the sole authority figures. Graduations, in contrast, are ceremonial affairs, and the parents themselves are present to act as a natural bulwark against risk of official coercion. Because graduations are designed not only for students but also for their families and friends, the graduation setting does not warrant an approach different from that applied in other ceremonial settings.
I assume that defenders of the new ad will point out that, read literally, the advertisement does not directly say that Roberts would allow students to be forced to pray from the Torah, etc. My sense is that the ad is designed to leave that impression, though, and to the extent it leaves that impression it seems to me a pretty false one.
Hat tip: Dave Hoffman
Sandefur on Balkin:
On Positive Liberty
, Tim Sandefur has a characteristically thoughtful response to Jack Balkin's Slate essay
. Read the whole thing, but here is a taste:
The fact is, liberal talk of the “living” Constitution is not talk of a living Constitution at all, but talk of a dead Constitution—a Constitution whose clauses are to be manipulated, bent, stretched, or ignored outright so as to allow the regulatory welfare state to accomplish its aims. And if there are phrases like “herein granted” or “public use” (let alone “due process”) that must be ignored in the process, why then, that’s just fine. Is that living Constitutionalism? Or is it dead, null, and void Constitutionalism?
At a recent program at the Heritage Foundation, I heard Ed Meese make the exact same terminological point about a "living" versus "dead" Constitution, and it appealed to me then. It still does.
I hope all VC readers will consider donating to the Red Cross relief efforts
(or some other worthy charity) to help out with much-needed relief following the destruction of Hurricane Katrina. Thanks to Stephen Aslett
for the gentle reminder.
Hundreds of thousands of people in Gulf Coast states are without homes or power in the wake of Hurricane Katrina, and aid agencies are warning the situation might not improve for weeks, maybe months.
Veteran staff members from the Federal Emergency Management Agency who have surveyed the destruction said the flood damage is the worst they have ever seen, the head of the agency said.
"This is truly a catastrophic event," Michael Brown told CNN.
"A Brief History of Cyberlaw":
My guestblogging stint over at Balkinization
started yesterday with this post
offering "A Brief History of Cyberlaw."
The Old Woman and the Airplane:
There is an airplane with 100 seats, and there are 100 passengers each of whom has an assigned seat on the plane. The passengers line up in a random order to get on the plane. The first woman on line is a confused old lady who doesn't know how to find her proper seat. She just sits in a random seat. When each person after her gets on the plane, they look to see if their assigned seat is available. If it is, they sit in it. If it is not (i.e., if the old lady or someone else before them has sat in it), they sit in a random seat. What are the odds that the 100th person sits in his/her proper assigned seat?
There are two very different ways to do this. The brute force long equation way, and the cute, sneaky, but simple way. Hopefully we'll get both on here.
The Erotic and the Clinical:
Meghan O'Rourke has a fascinating and thoughtful Slate item on some men's reactions to the prospect of watching their wives give birth. I don't share the reactions that she describes in her piece, but I thought her discussion of why they may occur was very insightful.
Monday, August 29, 2005
Deja Vu All Over Again?
This all seems familiar. The Senate Judiciary Committee is preparing to hold hearings on a prospective Supreme Court justice nominated by a conservative, tax-cutting president with sagging approval ratings who is derided as unintelligent by his critics. The nominee, a judge on the U.S. Court of Appeals for the D.C. Circuit, has impeccable credentials and an impressive intellect, but nonetheless is opposed by various liberal interest groups warning he could turn back the clock on civil liberties and equal protection.
Like the politics, aspects of today's music scene have a distinctive 1980s feel. There has been a marked resurgence in 1980s-style alternative pop music in bands like The Killers, The Bravery, Franz Ferdinand, The Stills, VHS or Beta, Razorlight, and Kasabian, among others. These bands were heavily influenced by 80s acts like The Cure, New Order, Echo & the Bunnymen, and the Smiths. There was even a massive transcontinental benefit concert featuring classic band reunions and Duran Duran is on tour. How much more '80s can you get?
Of course, the parallel is less-than perfect. Among (many) other things, Republicans control the Senate, the Cold War is over, no one buys Michael Jackson albums anymore, and I think we're safe from thin leather ties and ozone-depleting hairstyles. I also expect Judge Roberts will be confirmed, perhaps proving that history never really repeats itself.
Related Posts (on one page):
- Roberts = Bork?
- Deja Vu All Over Again?
Are We All Living Constitutionalists Now?
Jack Balkin tries to make the case
in a provocative essay over at Slate
. I think the essay is less an argument for a living Constitution than an argument against originalism, but it's an interesting read either way.
Clayton Cramer on the Ninth Amendment:
I am very appreciative of the comments I have received so far on my paper, "The Ninth Amendment: It Means What it Says
," especially by my co-blogger Jim Lindgren. While I do not intend to respond to these comments as they appear, Clayton Cramer has published his lengthy reactions to my paper in the comment section, as well as on his blog
, that I suspect might confuse those who had not read the paper. Without going point-by-point, perhaps a few comments can clear up three potential misunderstandings.
First and foremost, Cramer appears to miss the place in my paper (p. 14) where I deny that the original meaning of the Ninth Amendment--the exclusive subject of this paper--says anything about the scope of state powers:
Lastly, it would be mistaken to characterize the individual natural rights model as entailing federal restrictions on the powers of states. The Ninth Amendment, like the rest of the Bill of Rights, originally applied only to the federal government. True, natural rights could also limit the just powers of state governments, but this would be because of their independent force rather than the textual existence of the Ninth Amendment, which would not by itself justify federal protection against the violation of natural rights of individuals by their state governments. It was only with the passage of the Fourteenth Amendment—in particular the Privileges or Immunities Clause—-that the federal government obtained any jurisdiction to protect the unenumerated retained natural rights of the people from infringement by state governments.
The meaning of the Fourteenth Amendment is beyond the scope of this particular paper.
Second, the "Presumption of Liberty" I have proposed is a constitutional construction--like the opposing "presumption of constitutionality"--that is a way of putting into effect (as regard to federal
restrictions on liberty) the meaning of the Ninth Amendment's injunction against denying or disparaging the rights retained by the people. That these rights were individual rights, rather than either "collective rights" or the the rights of states, is a conclusion warranted by the evidence I examine in the paper, and cannot repeat here.
Third, I do not claim that all the Founders were "libertarians," but (as I discuss in my book but not in this paper) neither were they democratic majoritarians. The evidence does show, I think, that the rights "retained by the people" was a reference to individual natural rights (and that these rights were best understood as "liberty rights"). Perhaps here is a way to formulate the individual natural rights model of the Ninth Amendment that will clarify it for Clayton: The Ninth Amendment extended the same protection against federal abuses of other liberties as the Second Amendment extended to the individual right to keep and bear arms.
(Those who want extensive evidence that the Second Amendment protected an individual right can click here
Related Posts (on one page):
- Clayton Cramer on the Ninth Amendment:
- The Ninth Amendment Means What it Says:
as Slate characterizes it; according to this New York Times article,
A circumcision ritual practiced by some Orthodox Jews has alarmed city health officials, who say it may have led to three cases of herpes -- one of them fatal -- in infants. But after months of meetings with Orthodox leaders, city officials have been unable to persuade them to abandon the practice.
The city's intervention has angered many Orthodox leaders, and the issue has left the city struggling to balance its mandate to protect public health with the constitutional guarantee of religious freedom. . . .
The practice is known as oral suction, or in Hebrew, metzitzah b'peh: after removing the foreskin of the penis, the practitioner, or mohel, sucks the blood from the wound to clean it.
It became a health issue after a boy in Staten Island and twins in Brooklyn, circumcised by the same mohel in 2003 and 2004, contracted Type-1 herpes. Most adults carry the disease, which causes the common cold sore, but it can be life-threatening for infants. One of the twins died. . . .
The health department, after the meeting, reiterated that it did not intend to ban or regulate oral suction. But Dr. Frieden has said that the city is taking this approach partly because any broad rule would be virtually unenforceable. Circumcision generally takes place in private homes. . . .
If the practice is indeed potentially life-threatening, it seems to me it should indeed be banned. Despite what I at first thought, it seems that "the most traditionalist groups, including many Hasidic sects in New York, consider oral suction integral to God's covenant with the Jews requiring circumcision," and thus religiously obligated. The prohibition therefore substantially burdens their religious beliefs (whether or not we think these beliefs are sensible).
But, first, it's not clear whether New York law generally provides for religious exemptions from generally applicable laws (see In re Miller, 252 A.D.2d 156 (App. 1998)). And, second, even if it did provide for such exemptions, no exemptions would have to be granted if enforcing the law is the least restrictive means of serving a compelling government interest -- and here it surely is.
Moreover, I would hope that the ban would indeed be enforceable: First, I would think that some mohels would feel some obligation to follow the law (though of course I'd hope that they wouldn't jeopardize children's lives, once they know about the risk). Second, Jewish circumcisions are generally events at which many people, both family and friends, observe. If child gets sick and there's a question about whether the mohel violated the law, I would think that at least some of the witnesses to the ceremony would come forward and be willing to testify in court.
And it seems to me that the ban is perfectly proper, again if the evidence does suggest that there is a material risk here: While people may often risk their lives for the sake of their religions, and should sometimes be allowed to do so, I don't think people should be free to risk their children's lives this way. I realize the risk here isn't vast, but even small risks may be substantial enough to justify a restriction.
According to the Times,
"The Orthodox Jewish community will continue the practice that has been practiced for over 5,000 years," said Rabbi David Niederman of the United Jewish Organization in Williamsburg, Brooklyn, after the meeting with the mayor. "We do not change. And we will not change."
Well, it seems to me that the American community should continue the practice of protecting children from being killed by adults. That may be a younger rule, but it's the right rule, and it should not change. Your views of your obligation to God do not give you the legal right to cause the deaths of others.
Read the rest of the story, which has lots of other important details.
Discrimination Against Atheists:
I've often argued that it's improper for the government to discriminate against religious people and institutions because of their religiosity (see, for instance, my Equal Treatment Is Not Establishment article). But it's equally improper for the government to discriminate against irreligious people and institutions because of their lack of religiosity.
Fortunately, such discrimination is, I think, rarer now than it once was -- recall that until 1961, some states officially excluded atheists from certain jobs, such as notaries public. Yet it persists in some contexts, even overtly, and it's important to condemn this. For instance, though it's an open question to what extent it's constitutional for the government to discriminatorily give religious exemptions from generally applicable laws to religious objectors but not conscientious objectors, I think that the government should treat religious and conscientious objectors evenhandedly even if it isn't constitutionally obligated to. (I set aside here the question of government speech; I think the case for a government power to express itself religiously, at least in some contexts, is much stronger than the case for a government power to discriminate among citizens based on religion, but that's a story for another day.)
Here's an example that I think is particular egregious: The discrimination in favor of religious parents and against irreligious ones, or in favor of more religious parents and against less religious ones, in child custody cases, on the theory that it's in the child's "best interests" (that's the relevant legal test) to be raised with a religious education.
Mississippi is the most serious offender, though I've seen cases since 1990 in Arkansas, Louisiana, Michigan, Minnesota, Pennsylvania, South Carolina, South Dakota, and Texas; there are similar cases in 1970s Iowa, Nebraska, North Carolina, and New York. (I give cites below.) In 2001, for instance, the Mississippi Supreme Court upheld an order giving a mother custody partly because she took the child to church more often than the father did, thus providing a better "future religious example." In 2000, it ordered a father to take the child to church each week, as a Mississippi court ordered in 2000, reasoning that "it is certainly to the best interests of [the child] to receive regular and systematic spiritual training."
This violates the Free Speech Clause: Just as government discrimination against religious viewpoints is unconstitutional, see, e.g., Rosenberger v. Rector, so government discrimination against nonreligious viewpoints is unconstitutional. It violates the Establishment Clause: It coerces religious practice, either directly by ordering a parent to take the child to church, or indirectly by threatening the parent with a diminution in legal rights if he doesn't practice religion; the Court has rightly and unanimously taken the view that legal coercion of religious practice is unconstitutional (see both the majority and the dissent in Lee v. Weisman). It endorses religion (though the prohibition on endorsement is more controversial than the prohibition on coercion). And it discriminates based on religiosity. It may also violate the Free Exercise Clause, if (as I think is the case) the "free exercise of religion" includes the freedom not to have one's rights reduced because one exercises religion solitarily rather than in church, exercises religion less actively and passionately than some others, or has no religion at all. (The freedom of speech has been understood as including the freedom to choose what not to say as well as what to say; it seems to me the same applies to free exercise of religion.)
Finally, I realize that some people think it's in a child's best interests to be raised in a religion, perhaps because it will be more likely to make the child feel deeply about the need to follow some moral code. For all I know, this might be true. But other people equally think it's in a child's best interests to be raised skeptical of all religions, because it will be more likely to make the child into a rational thinker who doesn't take factual assertions on faith, and refuses to believe such assertions (whether about the Virgin Birth or the parting of the Red Sea or the creation of the world by an omnipotent, omniscient, benevolent God) unless he's given solid evidence that they're true. Freedom of religion, and freedom of speech, means that the government shouldn't make custody decisions based on such assumptions -- and of course if it can make custody decisions based on anti-atheist assumptions, it can also make them (and has made them) based on antireligious assumptions.
* * *
Citations for discrimination against the irreligious or less religious: Blevins v. Bardwell, 784 So. 2d 166, 175 (Miss. 2001); Staggs v. Staggs, 2005 WL 1384525 (Miss. App.); Brekeen v. Brekeen, 880 So. 2d 280, 282 (Miss. 2004); Turner v. Turner, 824 So. 2d 652, 655-56 (Miss. App. 2002); Pacheco v. Pacheco, 770 So. 2d 1007, 1011 (Miss. App. 2000); Weigand v. Houghton, 730 So.2d 581 (Miss. 1999); Johnson v. Gray, 859 So. 2d 1006, 1014-15 (Miss. 2003); McLemore v. McLemore, 762 So. 2d 316 (Miss. 2000); Hodge v. Hodge, 188 So. 2d 240 (Miss. 1966); Johns v. Johns, 918 S.W.2d 728 (Ark. App. 1996); Ark. Sup. Ct. admin. order no. 15 (enacted 1999); Peacock v. Peacock, 903 So.2d 506, 513-14 (La. App. 2005); Pahal v. Pahal, 606 So. 2d 1359, 1362 (La. App. 1992); Ulvund v. Ulvund, 2000 WL 33407372 (Mich. App.); Mackenzie v. Cram, 1998 WL 1991050 (Mich. App.); Jimenez v. Jimenez, 1996 WL 33347958 (Mich. App.); Jonhston v. Plessel, 2004 WL 384143 (Minn. Ct. App.); In re Storlein, 386 N.W.2d 812 (Minn. Ct. App. 1986); McAlister v. McAlister, 747 A.2d 390, 393 (Pa. Super. 2000); Thomas v. Thomas, 739 A.2d 206, 213 (Pa. Super. 1999); Gancas v. Schultz, 683 A.2d 1207 (Pa. Super. 1996); Scheeler v. Rudy, 2 Pa. D. & C. 3d 772, 780 (Com. Pl. 1977); Shainwald v. Shainwald, 395 S.E.2d 441, 446 (S.C. App. 1990); Hulm v. Hulm, 484 N.W.2d 303, 305 & n.* (S.D. 1992); In re Davis, 30 S.W.3d 609 (Tex. Ct. App. 2000); Snider v. Grey, 688 S.W.2d 602, 611 (Tex. Ct. App. 1985); In re F.J.K., 608 S.W.2d 301 (Tex. Ct. App. 1980); In re Marriage of Moorhead, 224 N.W.2d 242, 244 (Iowa 1974); Ahlman v. Ahlman, 267 N.W.2d 521, 523 (Neb. 1978); Dean v. Dean, 232 S.E.2d 470, 471-72 (N.C. App. 1977); Robert O. v. Judy E., 90 Misc.2d 439, 442 (N.Y. Fam. Ct. 1977).
Citations for discrimination against people who are seen as too religiously fundamentalist: Collier v. Collier, 14 Phila. 129 (Pa. Ct. Common Pleas 1985); Waites v. Waites, 567 S.W.2d 326 (Mo. 1978); Stolarick v. Novak, 584 A.2d 1034 (Pa. Super. 1991); In re Marriage of Epperson, 107 P.3d 1268 (Mont. 2005).
Political Bias in Academia:
Over the weekend I read through the paper that prompted KC Johnson's column in Inside Higher Ed (discussed by Jim last week). Leaving aside the data issues that the authors raise there, I want to explore the "alternative hypothesis" that the authors there raise as the nondiscriminatory explanation for the observed data. I will follow the convention of referring to all non-left/liberal ideologies as "conservative," however inapt that may be.
Here's the author's alternative hypothesis, followed by my analysis:
[Continue reading under hidden text]:
We offer self-selection as the likely culprit. First, there may be a rural/urban divide driving the relationship. Conservatives may want to live in communities whose ideological climate is more consistent with their own belief structure. Thus, given the strong correlation observable between the metropolitan density of a particualr county and the mean conservatism of its citizens, it would not be surprising if conservatives, academic or otherwise, prefer to work in smaller, more rural areas. ***
Second, regional selection affects hiring... It is no secret that Midwesterners and, especially, Southerners are more conservative, more religious, and less Jewish than Northeasterners. ***
Third, many conservatives may deliberately choose not to seek employment at top-tier research universities because they object, on philosophical grounds, to one of the fundamental tenets undergirding such institutions: the scientific method.... Furthermore, cultural conservatism, as revealed in antipathy toward gay rights, the women's movement, and abortion rights (among other things), has been shown to stem in large part from an embrace of Christian fundamentalism as a dominant worldview. Fundamentalism, by definition, is an absolutist, "faith-based" allegiance to a particular dogma, the veracity of which is considered beyond question or argument. Such worldviews are (again, by definition) antithetical to the philosophy of science, which permotes reason and evidence as the determinants of truth. Challenging entrenched dogma is the essence of science.... In other words, the faith-based reasoning of Christian fundamentalism (and by extension, of most socio-cultural conservatives) is essentially incompatible with the mission of contemporary researc universities. So, in sum, we are suggesting that the relationships [identified] might be a spurious function of self-selection based ona fundamentalist antipahy toward the scientific method and other approaches to revealed "trust"--precisely the busines of "top-tier" research universities.
The authors offer no evidence to support these explanations (they appropriately protest that the authors of the original study have not made their data available to researchers). On examination, however, none of them seem to be persuasive and available evidence tends to contradict their proffered hypothesis. Consider each element in turn.
1. Rural/Urban Divide: The authors argue that conservatives prefer to live in more rural areas and so will be disproportionately found at schools in such areas. If this is so, then an easy test of the hypothesis presents itself--my beloved alma mater Dartmouth College is one of two rural institutions in the Ivy League (along with Cornell). It is also in New Hampshire, historically the most conservative of the northeastern states. If the authors are correct about a rural preference, then we should expect to find more conservatives on the Dartmouth faculty than at urban-situated Ivy League schools, such as Harvard, Columbia, Penn, or Brown. A recent examination of party identification, however, finds that 66% of Dartmouth professors are Democrats and the ratio of registered Democrats to Republicans is 12.5 to 1, comparable to the ratios at urban Ivy League and other elite institutions. This is just one data point, of course, but it casts doubt on the idea that conservative academics have an unusually pro-rural preference. On the other hand, the University of Chicago, a rare institution with a historic reputation for a conservative presence (Strauss, Law & Economics, etc.) suggests that there are counter-examples in the opposite direction as well.
2. Regional selection: The authors argue that the South is disproportionately conservative, and as a result, conservatives might self-select for southern schools. Again, the testable hypothesis here is that elite schools in the South should attract a disproportionate number of faculty conservatives relative to similarly-prestigious schools in more liberal areas of the country. The only report I have seen on this is of Duke University, unquestionably one of the most prestigious institutions in the South. According to one survey of eight of Duke's humanities departments, however, Duke has 142 registered Democrats and 8 registered Republicans (17.75 to 1). The Duke History Department pitched a 32-0 Democratic shutout. Again, this is just one sample and only of humanities departments, but it lends little support for the conclusion that conservative professors are disproportionately drawn from and prefer to remain in the South. More generally, although I have seen no data on this, do we really think that rural midwestern small colleges (the three factors the authors identify) like Oberlin, Grinnell, and Kenyon are overrun with conservative faculty?
3. Willingness to Apply the Scientific Method: The fact that the authors would propose this explanation seemingly with a straight face is evidence of the straw-grasping going on here. But I will treat it as a serious hypothesis for the sake of argument. The authors argue that conservatism draws from fundamentalist religion and this makes them hostile to the scientific method. Again, this is subject to testing. If conservatives are hostile to the scientific method, then the disparity in ideology should be greatest in those fields where the scientific method is strongest--mathematics and hard sciences. By contrast, the gap should be narrower where the scientific method is least relevant, such as in the humanities.
Again, the available data don't seem to support this hypothesis. In fact, the ideological gap is much narrower in those fields where the scientific method is most relevant. Consider this summary of one such study:
I looked at the study itself and found the following for Liberal/Conservative identifications:
Mathematics: 4.1 to 1
Physics: 6 to 1
Chemistry: 2.2 to 1
Biology: 4.4 to 1
Computer Science: 2.8 to 1
Engineering: 2.6 to 1
Economics: 1.4 to 1
By contrast, humanities and social science departments (except economics, which is probably more scientific than most of the other social science departments) have the following divides:
English Lit: 29 to 1
History: 7.7 to 1
Philosophy: 16 to 1
Theology/Religion: 16.6 to 1
Political Science: 40.5 to 1
Sociology: 8.6 to 1
Psychology: 10.5 to 1
So, yes, a gap does exist in the sciences, and it is a rather large one, but not nearly as profound as in the humanities and social sciences (aside from economics).
So, the ideological divide is much narrower in the fields where the scientific method is used (including Economics), and widest where it is most absent.
More fundamentally, the authors are simply incorrect to argue that the religious beliefs of conservatives make them unable to apply the scientific method. As Larry Summers learned the hard way, the modern-day Lysenkoism of political correctness is a faith just as strong, if not stronger, than religious faith. Summers great heresy was to suggest that certain faith-based tenets of the modern academy could be subjected to testing by the scientific method. Make no mistake about it--the orthodoxy of political correctness is just as at odds with the scientific method as traditional religious belief. The only difference, of course, is that traditional religion is shunned in the modern academy, while political correctness is the academy's official religion.
The author's blind spot to this point is almost laughably provided by their own analysis of the situation--"cultural conservatism, as revealed in antipathy toward gay rights, the women's movement, and abortion rights (among other things), has been shown to stem in large part from an embrace of Christian fundamentalism as a dominant worldview." Give me break--if antipathy to these issues comes from religion, from where does the support for them come? Are the authors seriously suggesting that "science" supports gay rights or abortion rights and that opposition is faith-based? Again, we are back to recognizing that support for these rights is grounded in politically-correct faith just as the antipathy to them is as well.
The authors also claim, "It is difficult even to imagine ideological discrimination occurring at the point of hiring." This naivete again demonstrates the authors blind spot occasioned by their own narrow world view. There are a multitude of ways in which ideological discrimination manifests itself in hiring. The most obvious is simply the degree of skepticism that incumbent faculty apply to a given scholar's work. If they disagree with the ideological conclusions of the work, they approach it with greater skepticism and a higher burden of proof, and thereby it is easier to conclude that the analysis is flawed or incomplete. Again, this difference is reflected in the fact that the more subjective subjects (Philosophy, History, English, etc.) have greater ideological disparities than less-subjective subjects where standards of scholarly rigor are better-established and have an independent integrity that separate the craftsmanship of the field from the conclusions. (Some have observed that within political science itself, for instance, the more scientific quantative researchers have less ideological bias as well because of the indepdent standards of analysis applied there.) Other biases easily creep in as well--does the candidate do work that is "relevant" to the interests of the department, "collegiality," or common research interests. To say that "it is difficult to see how ideological bias" could creep into hiring is simply naive and perhaps just evidences the lack of self-awareness by the researchers themselves.
Even if this is self-selection, this is not necessarily responsive--when the elite academy is confronted with other examples of "underrepresented" interests, they do not simply throw up their hands and complain of a shallow talent pool. Instead, at Columbia for instance, the diversity committee is "tasked with finding ways to strengthen the pipeline bringing women and minority students into the University's undergraduate, graduate, and postdoctoral programs" and not merely take what the pipeline produces.
Based on my personal experience having known many bright students in many different fields (I meet many undergraduates and graduate students through IHS Seminars at which I lecture), I would say that if there is self-selection here, it is of precisely one type--libertarian and conservative students self-select out of pursuing an academic career because they are well aware of the political obstacles that will be placed in their way. They know that they will confront ideological bias at every stage of their careers--grad school, grad school mentoring to help get jobs, entry-level jobs, and tenure. Given the numbers reported by Klein and others, they are clearly acting rationally in refusing to invest 5 years of their lives to get a PhD to try to roll this stone up that hill.
Finally--and I'm less confident about this--conservatives may be disproportionately turned off by the fundamental "unseriousness" of the modern academy. Conservatives may simply prefer the real world, with its mechanisms of accountability, merits-based determinations, and focus on solving real problems. The emptiness and triviality of so much modern scholarship (especially in the humanities) and the marbeling of every element of academic culture with the burdens and distractions associated with running the modern university--political correctness and its restraints on free inquiry, the whole edifice of the diversity machine and all it carries with it. The upward struggle to persuade colleagues to judge job candidates fairly and on the merits, rather than through the ever-present lens of political orientation and identity/diversity politics.
So the self-selection, if there is one, may be more along the lines of Michael Barone's distinction between "hard" and "soft" America--perhaps conservatives are more prone to self-select into the "hard" America of the private sector, where accountability is stronger and individuals are more likely to rise or fall on their own individual merits, rather than trying to survive in the bizarre ecosystem of the modern academy.
In conclusion let me add a thought--it seems utterly absurd that people are still making uninformed armchair speculation about the causes of the prevailing ideological imbalance in the academy. Is it self-selection? Conservatives are greedier? Conservatives are dumber? When it comes to addressing the issue of other "underrepresented minorities" on college campuses, the record overflows with high profile blue ribbon panels of leading scholars and administrators. No stone is left unturned and no penny left unspent to try to determine why women are "underrepresented" in teaching math and science, or the underrepresentation of minorities. I think maybe it is time to take even a small percentage of those tens of millions being spent at places like Harvard and Columbia and perhaps do a study of the causes of the ideological disparity in the academy, rather than simply speculate and pontificate. At the very least, such a study would eliminate some of the more preposterous hypotheses (such as the idea that conservatives generically like money more than liberals or that conservatives lack the intellecutal frame of mind to succeed in academia).
A Hat Problem:
There are a hundred people lined up on the steps of a stadium, each on a different step, all looking down toward the field so that they can see everyone in front of them, but can't see anyone behind them. Each person will be given either a red or black hat. We know nothing about the total number of red or black hats. Each person will not be able to see the color of his own hat (or the ones behind him), but will be able to see the colors of all the hats in front of him. Starting in the back, the last person will be asked what color hat he is wearing. If he guesses correctly, he will live; if he guesses incorrectly, he will be shot immediately. We will then proceed to the person second from the back, and so on, until we have reached the person on the bottom step. Each person will be able to hear what all the people behind him say, and will also be able to hear which people behind him were shot.
Before we begin this process, the 100 people may meet to discuss a strategy. They can plan whatever they want, but once the line-up begins, they may no longer confer. At each person's turn, he may only say "black" or "red," and no other words -- if he says anything else, all 100 people will be executed. He may also not use tone of voice, volume, etc., to convey any meaning -- this will be detected and they will all be shot.
What strategy will guarantee saving the maximum number of people? What is this number?
Preliminary Results on Empirical Study of Influence of Chief Justice:
Frank Cross reports some preliminary results on his empirical study of Chief Justices on case results:
I have completed a preliminary analysis of the 2004 term. There appears to
be some result from Rehnquist's absence on outcomes. For example, in the
cases over which Rehnquist presided, he had a 10% dissent rate. In the
cases over which Stevens presided, Rehnquist had a 30% dissent rate. While
this is a fairly small sample, and the changed probability of a Stevens
dissent is much less, this is suggestive that Rehnquist's absence may have
had an effect.
I went by their appearance at oral argument with help from some of your
readers and found 40 cases for Stevens and 30 for Rehnquist, just using
cases with full argument and full opinion.
He also adds a caveat (and invitation):
Posting it would be great, though please caveat that it's
preliminary. It's only going to be a small part of the article, but
getting this out there for discussion might uncover any mistakes I
made. We'll be using a broader database to test the past effect of the
Chief, i.e., what happened when Rehnquist was elevated? Did it affect his
votes or the votes of others?
Sounds like a great research project.
New volume on law and economics:
My colleagues Charles Rowley and Francesco Parisi have just published The Origins of Law and Economics: Essays by the Founding Fathers. This volume includes essays by Gary Becker, Guido Calabresi, Richard Epstein, Richard Posner, James Buchanan, Ronald Coase, William Landes, Gordon Tullock, and many others. You could have a fun time debating who is the least prominent contributor to this book. Many of the pieces come from lectures, and they show a strong interest in the history of the field. Richard Epstein's piece is "The economist in spite of himself." The Landes and Henry Manne pieces are intellectual autobiographies. The volume also reprints Edmund Kitch's excellent 1983 interviews with Friedman, Director, Stigler, Demsetz, Coase, and others on the origins of law and economics at the University of Chicago. I don't know anything else like this book, highly recommended.
Jurist Column On Bankruptcy Reform Legislation:
Perhaps I was the last to know, but last week Jurist ran an op-ed column that I wrote earlier this summer on the Bankruptcy Reform legislation. I knew that it had been delayed for a while, but I didn't realize that they had finally posted it.
It is available here.
The Ninth Amendment Means What it Says:
The Ninth Amendment reads:
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
While many in the blogosphere have debated the original meaning of this amendment, in the end it is evidence that should settle the question. But this requires the more traditional forms of scholarship rather than blogging. For some months, I have been promising a major new treatment of the evidence concerning the Ninth Amendment's original meaning. Finishing it occuppied most of my summer, but now it is available for downloading on SSRN. It is entitled, The Ninth Amendment: It Means What it Says
. Here is the abstract:
Although the Ninth Amendment appears on its face to protect unenumerated individual rights of the same sort as those that were enumerated in the Bill of Rights, courts and scholars have long deprived it of any relevance to constitutional adjudication. With the growing interest in originalist methods of interpretation since the 1980s, however, this situation has changed. In the past twenty years, five originalist models of the Ninth Amendment have been propounded by scholars: The state law rights model, the residual rights model, the individual natural rights model, the collective rights model, and the federalism model. This article examines twelve crucial pieces of historical evidence that either directly contradict the state law and residual rights models, undercut the collective rights model, or strong support the individual natural rights and federalism models. Evaluating the five models in light of this evidence establishes that the Ninth Amendment actually meant at the time of its enactment what it appears now to say.
I am activating comments for anyone who reads the paper and has comments or suggestions for its improvement. These can also be sent to me by email. (If you spot any typos, please send tell me about them by email rather than in comments.)
Related Posts (on one page):
- Clayton Cramer on the Ninth Amendment:
- The Ninth Amendment Means What it Says:
My blogging has been virtually nonexistent in the weeks running up to my visit this fall to Georgetown. (In the spring semester, I return to Boston.) I have been preoccupied with getting a number of projects completed and with the logistics of the move.
Now I am here in DC. What a gorgeous campus the Georgetown Law Center has built. The Law Center has long been away from the main campus, a couple blocks from Union Station. Now the completely renovated main building is flanked by two grassy quads. To the North is a new library building. To the south is an international law building a four story glass-fronted fitness center, and a student apartment building. Georgetown may now have the nicest campus of any law school in the country. And the area near the Law Center is being transformed by new apartment, office and condominium buildings. I went to see the Brother's Grimm last night at a brand new Regal Cinema a few blocks away in the neighborhood now called Penn Quarter.
I am looking forward to my classes, which begin tomorrow. I expect my blogging to pick up, but who knows for sure?
Katrina to Hit New Orleans:
Whether you try to influence future events by praying, crossing your fingers, or something else, now would be a good time to focus your thoughts on New Orleans and the direction of Hurricane Katrina
. Sounds like we'll have a good idea of the scope of the damage by the morning.
Sunday, August 28, 2005
Political Diversity on Law School Faculties.--
In an earlier post, I mentioned John McGinnis's forthcoming Georgetown Law Journal study of political diversity on law faculties. Adam Liptak has a fair account of it in the New York Times:
The study, to be published this fall in The Georgetown Law Journal, analyzes 11 years of records reflecting federal campaign contributions by professors at the top 21 law schools as ranked by U.S. News & World Report. Almost a third of these law professors contribute to campaigns, but of them, the study finds, 81 percent who contributed $200 or more gave wholly or mostly to Democrats; 15 percent gave wholly or mostly to Republicans.
The percentages of professors contributing to Democrats were even more lopsided at some of the most prestigious schools: 91 percent at Harvard, 92 at Yale, 94 at Stanford. At the University of Virginia, on the other hand, contributions were about evenly divided between the parties. The sample sizes at some schools may be too small to allow for comparisons, though it bears noting that by this measure the University of Chicago is slightly more liberal than Berkeley. . . .
Whatever may be said about particular schools and students, professors and deans of all political persuasions agreed that the study's general findings are undeniable.
"Academics tend to be more to the left side of the continuum," said David E. Van Zandt, dean of Northwestern's law school, where the contribution rate to Democrats was 71 percent. "It's a little worse in law school. In other disciplines, there are more objective standards for quality of work. Law schools are sort of organized in a club structure, where current members of the club pick future members of the club."
Although not mentioned in the NY Times report, McGinnis's article also examines those letters by groups of "experts," eg, the public letters favoring or opposing Clinton's impeachment or opposing Bush v. Gore. Despite hundreds of signatories to the various letters, McGinnis said only three professors (and I'm one of the three) has donated exclusively to candidates at odds with the implied political orientation of the signed letter.
UPDATE [further Updated]: The Times article raises the question whether it matters if there is political diversity on law faculties.
I have two answers--one substantive, one speculative. First, in my studies with the General Social Survey, political ideology is the strongest predictor of views across a range of hundreds of issues that I've looked at--stronger than race, gender, education, class, occupation, age, region, marital status, etc. Those who say that labels such as "conservative" and "liberal" are meaningless today are frankly uninformed. Most survey researchers know that these labels are quite salient.
Second, a professor at the Harvard Law School told me that in 1988 he asked every member of the Harvard Law School faculty with even a hint of conservative or Republican leanings whether they favored or had voted for Bush in 1988. Only one had (1 out of 60-80 faculty); all others favored Dukakis. He also said that in about 2 or 3 dozen entry-level faculty hires from the mid-1970s through about 3 or 4 years ago (when they hired an entry-level conservative), the Harvard Law School had not hired a single Republican.
Now consider this thought experiment: [Imagine that in 1988 all but one of the Harvard Law faculty had favored Bush1 over Dukakis. And] Imagine that over the same period of a quarter century [mid 1970s through early 2000s], the Harvard Law School had hired at the entry-level only those who leaned Republican. Imagine how different the Harvard Law School would be, how different legal education would be, how different the government (and public policy) would be, populated with lawyers trained by an overwhelmingly Republican Harvard faculty. Somehow I think it would be a different world.
ANOTHER UPDATE: Professor Bainbridge weighs in thoughtfully on the topic.
So does sociologist Chris Uggen.
Is Armstrong Guilty?
Sportswriter Stephen A. Smith argues it's certainly not proven.
There is no evidence of a positive test from 2004. Or 2003. Or 2002, 2001 and 2000, for that matter.
In an age when anything from a strand of hair to a footprint can land someone in jail for the rest of his life, a urine sample from 1999 is the best French critics can come up with to sully Lance Armstrong's reputation, to diminish the impact of his dominance in bicycle racing - a sport that is supposed to be their own. . . . .
Despite the fact that both "A" and "B" samples are needed to confirm the authenticity of the test, only the "B" samples are still purported to exist, preventing the Tour, USA Cycling or anyone else from snatching away any of Armstrong's Tour titles, including that 1999 championship.
But far be it for such things to stop a smear campaign from escalating to a point where polls are taken to gauge the amount of support Armstrong is receiving right here in America.
Wholesale Gas Caps: An Economic Experiment in Hawaii.--
I hadn't realized until I read Jane Galt that the Hawaii gas price controls are on the wholesale price of gas, not the retail price. That is really shocking, because economic theory would suggest that prices are set by supply and demand, not simply cost.
If the wholesale cap is set above the market price, then the caps should have no effect whatsoever.
If the wholesale caps are set below the wholesale market price, the one thing that won't happen is that more gas will be supplied than if the wholesale prices were higher. If somehow supply were unchanged, theoretically there should be almost no difference in retail prices; the gas station owners should pocket the difference. As Galt points out, there may be some political pressure to lower prices a bit, so it is not impossible that prices would fall some, but there is no strictly economic reason for this, absent fear by gas station owners of more government regulation and interference with profits.
Yet standard economic theory would suggest that, if wholesale prices are set below market wholesale prices, the supply would fall. If there is any excess refining capacity anywhere else, the gas refiners would rationally move the gas to those other refineries, since they could get the full market wholesale price elsewhere. We would expect to see shortages, leading to higher retail prices in Hawaii, not lower ones. If supply drops and somehow retail prices stay the same, one would expect to see gas lines and rationing.
The entire proposal is based on the economic system having relatively high transaction costs of moving sales or production elsewhere. Without transaction costs, there would be little reason to sell gas in Hawaii for $2.16 if the same gas could be costlessly sold instead for $2.20 elsewhere.
The Oil & Gas Journal says there are two refineries in Hawaii.
Opinionjournal says that even the agency enforcing the law expects it to increase gas prices:
The law, set to take effect Sept. 1, ties the price of gas to the wholesale price of gasoline at three price points on the U.S. mainland.
Charged with the unenviable job of implementing the gas-cap program, Hawaii's Public Utilities Commission says local industry expects the caps to increase prices by an estimated 30 cents a gallon, with costs on Oahu rising from the current price of $2.68 a gallon to more than $3. PUC says industry leaders also expect more shortages (especially in remote areas), the closure of one of two oil refineries, the halting of wholesale marketers' operations, and reduced investment in the state after the caps go into effect. Owners of gas stations on remote neighboring islands say prices will likely soar after Sept. 1, from just over $3 a gallon to more than $4.
Both refineries are saying that they will continue to operate for the time being, e.g:
"We will continue to do business as usual until such time as the situation requires us to do something different," said Albert Chee, a Chevron spokesman in Hawaii.
"Having said that, we continue to believe the law is flawed and is not in the best interests of the state. We continue to be concerned about the potential for adverse, unintended consequences."
Tesoro, meanwhile, said it had "ample supply" in Hawaii distribution and that its local refinery was operating at full capacity, indicating it didn't expect to run low on gas in Hawaii.
This is a nice test of economic theory, though if refineries are working at nearly full capacity, the economic effects may not be as large in the short run as simple price theory (in the absence of transaction costs) would suggest.
UPDATE: If you are interested in more sophisticated analyses (including relaxing my assumption that the actual amount of gas supplied would not rise with caps), you should read the comments below.
In addition, lower court opinions in Lingle v. Chevron (Sup. Ct. 2005) say that there were 6 gas wholesalers in Hawaii.
2D UPDATE: Brian at Backseat Driving argues in opposition that the analysis I recount "fails to consider whether a standard market exists for wholesale gas, just noting without comment that there are 2 refineries and 6 wholesalers, which is nothing like a standard market. Standard monopoly theory, on the other hands, says the wholesalers could be price-gouging retailers, and caps that limit the gouging will not limit the overall gas supply."
As I said, this should be an interesting experiment.