Saturday, October 1, 2005

More on Thucydides:

I received the following email from a reader that triggers a random thought.

First the email:

VC post on separation between elites and warriors.

I often had the same thought on reflecting on the lists of names of those Northwestern Law graduates who died in the World Wars, etched in stone on the walls of Levy Mayer Hall. I wondered if my classmates and I could make such a sacrifice for our country on the field of battle. I don't think so. We're a softer nation now.

Incidentally, you can see those plaques here: They are to the right of the two doorways.

More on the central proposition in a moment, but first, I recall being told that there is an old rule of the Georgia Bar that admittance into the Bar also automatically grants you the title of "Colonel" in the Georgia militia and the privilege/obligation to muster a regiment in the event of war. It is sort of funny to think that bar admission today would imply something about one's fitness to serve as military leader in time of war. In fact, I vividly recall this one old partner at my firm who quite plainly could never remember my name, so he simply referred to me as "Colonel" every time he saw me. Although it would have been nice to have him remember my name, I always thought it was kind of cool to be called "Colonel" so I didn't really mind (much better than something like "dude").

Anyway, I've never been able to confirm whether it is true that becoming a member of the Georgia automatically awarded the title of Colonel in the state militia, or was true at one time. So if anyone knows for sure and could point me to a confirming source, I would appreciate it.

As for the central proposition of the email--that we are a softer nation now--is an interesting one, that I don't have any strong opinion on. I recently read Michael Barone's book "Hard America, Soft America," which I mentioned previously in a different context. Barone argues that we are in some sense two Americas, hard and soft. Barone argues, interestingly enough, that the military itself has become much harder than previously, at least as compared to the 1960s and 1970s. But, in general, I think he might agree with the suggestion that overall we are softer, at least in terms of the physcial and other characteristics that would be necessary to fight something like a World War. But I don't know, although it is an interesting thing to think about.


In a Comment to my earlier post, a reader raises questions as to whether the quote is really to Thucydides and links to this Google Groups search result. A number of Commenters observed that they do not recall having read that particular quote in Thucydides.

New book about lawyer jokes:

Here is an extensive review and summary.

Clerking for Multiple Justices: John Roberts' decision to hire the late Chief Justice's law clerks means that three young lawyers will be able to say that they served as law clerks for two Supreme Court Justices. Here's a trivia question, if you'll accept such a question from a non-puzzleblogger: How many people have clerked for three or more U.S. Supreme Court Justices, and who are they? I know of one, but there may be others.
Steven Levitt on Bill Bennett:

Former Education Secretary and Drug Czar Bill Bennett caused a stir when, on his talk show, he suggested that aborting all black babies would cause the crime rate to drop. Bennett made clear that such a policy would be "impossible, ridiculous, and morally reprehensible." Nonetheless, the remarks touched a nerve, insofar as they reinforced racial stereotypes.

Insofar as Bennett's remarks drew on the controversial work of economists Steven Levitt and John Donohue on the relationship between abortion and crime rates, Levitt's comments on the Bennett controversy are particularly interesting. According to Levitt, writing on his Freakonomics blog,
It is true that, on average, crime involvement in the U.S. is higher among blacks than whites. Importantly, however, once you control for income, the likelihood of growing up in a female-headed household, having a teenage mother, and how urban the environment is, the importance of race disappears for all crimes except homicide. . . . In other words, for most crimes a white person and a black person who grow up next door to each other with similar incomes and the same family structure would be predicted to have the same crime involvement. . . . He made a factual statement (if you prohibit any group from reproducing, then the crime rate will go down), and then he noted that just because a statement is true, it doesn't mean that it is desirable or moral. That is, of course, an incredibly important distinction and one that we make over and over in Freakonomics.
While Levitt seems to think Bennett's statement was generally defensible -- if ill-advised, as many other analogies could have been used to make Bennett's argument -- he does have some criticism of the Drug Czar turned talkshow host.
There is one thing I would take Bennett to task for: first saying that he doesn't believe our abortion-crime hypothesis but then revealing that he does believe it with his comments about black babies. You can't have it both ways.
Levitt's whole post is interesting, as are many of the extensive comments.

In a different vein, Scrappleface has a different take on the Bennett brouhaha.


Friday, September 30, 2005

Is Blogging Recreation?

That turns out to be an important legal question, at least in New York. Here's the text of N.Y. Labor Law § 201-d:

1.... “Political activities” shall mean (i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group ....

“Recreational activities” shall mean any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material ....

2.... [I]t shall be unlawful for any employer [to discriminate against an employee or prospective employee] because of ...

[a] an individual’s [legal] political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property [except when the employee is a professional journalist, or a government employee who is partly funded with federal money and thus covered by federal statutory bans on politicking by government employees] ... [or]

[b] an individual’s legal recreational activities outside work hours, off of the employer’s premises and without use of the employer’s equipment or other property ....

3. [This section] ... shall not be deemed to protect activity which ... creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest .... [Exceptions related to some government employment, and a minor exception related to private employment, omitted.]

So can a New York employer fire an employee for offensive statements on the employee's blog (assuming the blog doesn't carry any advertising, the employee blogs from home, and the blogger doesn't reveal any trade secrets or confidential information)? The protection for political activities is quite narrow -- general statements on public issues wouldn't qualify, unless they're said in the context of a candidate campaign or fundarising activity for a candidate, party, or advocacy group.

But the protection for recreational activities seems quite broad: It covers a wide range of "lawful, leisure-time activity" (so far blogging qualifies) "for which the employee receives no compensation" (that's why we're assuming there's no advertising) "and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material."

So is blogging "engaged in for recreational purposes," as a sort of "hobb[y]," or the flip side of the "reading and the viewing of" media material? Or is blogging for the purpose of expressing your views something other than recreation -- perhaps a form of ideological advocacy that's deliberately excluded from the narrow "political activities" provision, and thus not meant to be included in the "recreational activities" provision?

No cases that I know of so far on this subject in New York; but it still struck me as an interesting item to air. (I have a problem on the subject in the second edition of my The First Amendment and Related Statutes casebook, and I'm writing the Teacher's Edition discussion of that problem right now.)

Roberts Picks up the Rehnquist Clerks: In one of his first acts as the new Chief Justice, John Roberts hired all three of the former law clerks for the late Chief Justice William Rehnquist: Mark Mosier, Michael Passaportis, and -- most importantly, at least to me -- my former student Ann O'Connell. He also brought with him two clerks from the D.C. Circuit, Dan Kearney and Kosta Stojilkovic.

Related Posts (on one page):

  1. Roberts Picks up the Rehnquist Clerks:
  2. Now that John Roberts Has Been Confirmed,
It Looks Like Justice Ginsburg Likely Was the Victim of a Drafting Error

after all; and it looks like I erroneously failed to recognize just how likely this was to be an error.

Here's what I wrote on the subject when I first dealt with it last year:

[The] Sex Bias in the U.S. Code [report] was prepared for the Commission by former ACLU lawyer Brenda Feigen-Fasteau, then-professor Ruth Bader Ginsburg, and 15 Columbia Law School students working under their supervision. The reporters went through federal statutes, identified various sex-based classifications and terms, and suggested ways to eliminate them. In the process, here's what the report said on p. 95 about the relevant statu[t]e, 18 U.S.C. § 2032:

Under 18 U.S.C. §§1153 and 2032, it is a crime for a person to have carnal knowledge of a female not his wife who has not reached 16 years of age. "Rape" is defined [as limited to female victims]. . . . The "statutory rape" offense is defined in these sections in much the same way: the victim must be a female and the offender a male . . . .

These provisions clearly fail to comply with the equal rights principle. They fail to recognize that women of all ages are not the only targets of sexual assault; men and boys can also be the victims of rape. In the case of statutory rape, the immaturity and vul[n]erability of young people of both sexes could be protected through appropriately drawn, sex-neutral proscriptions. The Model Penal Code and S. 1400 §1633 require a substantial age differental between the offender and victim, thus declaring criminal only those situations in which overbearing or coercion may play a part.

So far, not a proposal to generally lower the age of consent — it's a call for sex-neutral statutes, and for making the statutory rape rules turn on the difference in age between the parties. One can argue against this on various grounds, and it's not clear why the age differential vs. clear cutoff issue is relevant to the "Sex Bias in the U.S. Code" issue. Moreover, S. 1400 §1633 provided (at least in the version that I could find), that "sexual abuse of a minor" (essentially statutory rape) be limited to victims who are under 16, and who are "at least five years younger than" the defendant. This could be criticized, since it would allow 17-year-olds to have sex with 12-year-olds, which many people would treat as child molestation and not just young love. But at least it doesn't make 12-year-olds fair game for adults.

But here's the suggestion [given under the heading "Recommendations"] on p. 102:

18 U.S.C. §2032 — Eliminate the phrase "carnal knowledge of any female, not his wife who has not attained the age of sixteen years" and substitute a Federal, sex-neutral definition of the offense patterned after S. 1400 §1633: A person is guilty of an offense if he engages in a sexual act with another person, not his spouse, and (1) compels the other person to participate: (A) by force or (B) by threatening or placing the other person in fear that any person will imminently be subjected to death, serious bodily injury, or kidnapping; (2) has substantially impaired the other person's power to appraise or control the conduct by administering or employing a drug or intoxicant without the knowledge or against the will of such other person, or by other means; or (3) the other person is, in fact, less than 12 years old.

Under this proposal, it seems to me that sex with 12-year-olds and older would be legalized in the federal territorial and maritime jurisdiction, regardless of the age of the other party. This wouldn't be a "Romeo-and-Juliet" law aimed at preventing prosecution of young lovers — it would equally be a dirty-old-man-and-Juliet law. And while there are plausible debates about what the age of consent should be, it seems to me that simply lowering it to 12 would be quite a striking and unjustified change.

Now this all happened nearly 30 years ago; but I'm still curious about what was happening here. Am I misreading the proposal? Am I missing some important statutory context, such as other federal statutes that would have banned sex by adults with 12-year-olds even when this statute had been relaxed to allow it?

If I'm not mistaken or reading this out of context, then were many in the late 1970s feminist movement really in favor of lowering the age of consent to 12? Did Justice Ginsburg hold this view? Or was this something that was added by an overzealous student and not caught by her (of course she had the responsibility of checking everything produced by the people she was supervising or even by her coauthor, but mistakes happen)? Might it even have been an inadvertent drafting error? (As to 18 U.S.C. §1153 — which applied to Indian country — the other section mentioned alongside §2032 on p. 95, the report on p. 103 simply suggests that it be changed to the S. 1400, §1633 version.)

On reconsidering the matter, I now think there's very strong evidence that there was indeed an inadvertent drafting error. The error is not, as I thought some had suggested, a reference to "12" instead of "16." Rather, the error is that the report quite likely was intended to quote the Romeo-and-Juliet language from §1633 (the provision it cited in the "Recommendations"), and instead inadvertently quoted the flat-age-12 age-of-consent language from §1631. I think this because the report did indeed cite §1633 in the recommendations; because it had discussed it earlier in the text; because it called for sex-neutralizing the rape definition elsewhere in the Recommendations (see item 1 below); and because the report (as I pointed aut above) suggested that §1153, governing Indian territory, borrow the language from §1633, and there's little reason why it would have a different recognition for §1153 and for §2032, the provision that governs federal enclaves.

Here's what I now think the report was probably intending to recommend:

(1) Elsewhere in the recommendations, the report would have sex-neutralized the definition of rape ("A sex-neutral definition of rape, such as the one set forth in S. 1400 §1631 should be added to Title 18 or Title 10 and referred to throughout for the definition of the offense.").

(2) The recommendation as to "carnal knowledge" was not intended just to sex-neutralize the definition of rape or carnal knowledge, but rather to replace the flat age of consent of 16 with the more complex "Romeo-and-Juliet scheme" (under which sex with under-16-year-olds was legal for people who were less than 5 years older, a misdemeanor for under-21-year-olds who were more than 5 years older than the victim, and a felony punishable by at most 3 years in prison for adults). This is consistent with the earlier discussion in the report, where the report praises Romeo-and-Juliet laws, and consistent with the fact that it had already recommended that rape be sex-neutralized (see item 1 above).

(3) The recommendation correctly cited §1633 but erroneously quoted the text from §1631; it should have read "patterned after S. 1400 §1633: A person is guilty of an offense if he engages in a sexual act with another person who is not his spouse, who is less than sixteen years old, and who is at least five years younger than the actor. . . ."

(4) The recommendations were also intended to make sure that any sex with under-12-year-olds, regardless of the age of the other party, would be illegal; but that would have been accomplished through the recommendation that "A sex-neutral definition of rape, such as the one set forth in S. 1400 §1631 should be added to Title 18 or Title 10 and referred to throughout for the definition of the offense." That definition would have included a flat ban on sex with under-12-year-olds.

So a person who was just reading the report would have rightly inferred, I think, that the report was meaning to change the age of consent. (That's why it recommends including §1633, the main purpose of which is to change the age of consent, not to sex-neutralize the offense.) A casual reader might also have inferred that the report was meaning to change the age of consent to 12, period, which is what the text says.

But the careful reader — which I, unfortunately, was not (especially in my more recent post on the subject here) — should have realized that the report was likely intending to recommend replacing the "carnal knowledge" ban not with a flat age of consent of 12 (what the text said) but rather with a graduated Romeo-and-Juliet age of consent that would have been set at 16 for adults (what the §1633 that the text cited said).

So while I still disagree in some measure with some of Tim Noah's analysis in Slate (I think the report was endorsing a change in the age of consent, and not just talking about sex-neutralization, and I think Ginsburg's critics' views may well have been just a reasonable mistake and not a deliberate smear), and while I stand by my points about the report's recommendation to decriminalize prostitution and its likely recommendation to decriminalize polygamy, I now find it highly unlikely that the authors of the report really did intend to recommend that the age of consent be generally lowered to 12. Rather, the recommendations cited the right subsection but quoted the wrong one; and the intended purpose was to decriminalize sex between 12-year-olds and up-to-16/17-year-olds and substantially lower the maximum penalties for sex between 12-year-olds and older partners (from 15 years to 3 years) — a scheme that is probably still less restrictive than many (including me) would endorse, but that makes much more sense than a flat age of consent of 12.

Ginsburg's critics were led astray by this error, which suggests that their characterization of Ginsburg's views was likely a mistake of their own, rather than a deliberate "smear." But I now do think that the critics' assertions — and my own past assertions — were indeed likely mistaken.

UPDATE: I've updated the text above to reflect the punishment that S. 1400 §1633 would have authorized for sex between adults (over age 21) and 12-year-olds -- it would have been at most 3 years in prison.

ABA Survey Finds People Angry At Judges: The ABA Journal eReport has a piece on a recent ABA-sponsored survey about attitudes toward the judiciary:
  More than half of Americans are angry and disappointed with the nation’s judiciary, a new survey done for the ABA Journal eReport shows.
  A majority of the survey respondents agreed with statements that "judicial activism" has reached the crisis stage, and that judges who ignore voters’ values should be impeached. Nearly half agreed with a congressman who said judges are "arrogant, out-of-control and unaccountable."
  Legal experts interviewed for the story were surprised by these results, with the exception of one expert with "alternative" views:
  The survey results surprised some legal experts with the extent of dissatisfaction shown toward the judiciary. "These are surprisingly large numbers," says Mark V. Tushnet, a constitutional law professor at Georgetown University Law Center in Washington, D.C.
  "These results are simply scary," adds Charles G. Geyh, a constitutional law professor at Indiana University School of Law in Bloomington.
  . . .
  But one legal scholar with an alternative viewpoint is not surprised. The survey results reflect the reality that "there is a lot of judicial activism under any definition," says John O. McGinnis, a professor at Northwestern University School of Law in Chicago.
  In case you're wondering, I believe "alternative" is supposed to mean "conservative." Thanks to ambivalent imbroglio for the link.
Balkin on Blogging as Scholarship: Jack Balkin has a terrific post on the role of blogs in the advancement of legal scholarship. An excerpt:
  Like all media, the blog subtly (and not so subtly) shapes how ideas are expressed, and what sorts of ideas get expressed. Blogs rarely use footnotes (links are used instead), and they usually are best for short essays rather than long discussions. But many important ideas in legal scholarship can be stated in less than 4,000 words, and it is well worth learning the skills and discipline necessary to do this.
[Puzzleblogger Kevan Choset, September 30, 2005 at 12:20pm] Trackbacks
Supreme Order:

Where does John Roberts fit in this ordered list?

  • O'Connor

  • Scalia, Stevens

  • Kennedy

  • Ginsburg

  • Souter

  • Breyer

  • Thomas

Student Perspective on ROTC:

This week's issue of the Dartmouth Free Press, a liberal student newspaper, has a thoughtful personal essay by a Dartmouth ROTC cadet discussing his experience on campus here. I think the essay provides some interesting context on the campus ROTC issue and the Solomon Amendment litigation, and in particular.

The article opens with a quote from Thucydides that I had not seen before and which I think succinctly captures a large element of my thinking on the whole Solomon Amendment/ROTC debate:

"The Nation that makes a great distinction between its scholars and its warriors will have its thinking done by cowards and its fighting done by fools." - Thucydides

Leaving aside the merits of the Solomon Amendment itself, one reason I am troubled by allowing law schools to exclude the military from recruiting on campus is that it further reinforces the divide between the military and elite society in the nation, and I believe that that divide is unfortunate and that we should be trying to narrow, not widen the gulf. I also believe that given the criticisms of the military as unduly class-based, we should be making it easier for highly-educated students to join the military, not more difficult. One needs only to look at the remarkable job that the JAG has been doing with the Abu Ghraib cases to see how beneficial it can be to have well-qualified students in the military. Finally, post-9/11 my personal experience is that many young people have felt a renewed call to serve their country and believe in the essential justice of the war on terror, and that we should not be raising the costs for these students to serve their country if they so desire. Thucydides, I think, says this all much better than I.

Of course, I understand all of the arguments on the other side and recognize their merits. But, again, I personally don't believe that the way to bring about the changes that are desired is by excluding military recruiters from campus, as opposed to trying to change the law. So I don't intend for this to be the place to fight the FAIR v. Rumsfeld case (although I'm sure that will be the likely consequence of this post anyway).

More on God and Man At Dartmouth:

The other day I posted on the Convocation speech given by Dartmouth Student Assembly President Noah Riner and the campus reaction, including a column by William F. Buckley.

Doug Lederman at Inside Higher Ed has an excellent and insightful round-up of the affair, including a follow-up interview with Mr. Riner. Some interesting Comments there too by students and professors from around the country (although not as good as the Comments by VC readers to my first post, of course). Meanwhile, the Washington Times has posted a piece that includes the full text of the speech. (HT: Michael Ellis at the Dartmouth Review).

For what it is worth, I am increasingly finding Inside Higher Ed to be must-reading for goings-on in the academy. This is the third time in about a week or so that I have linked to a Doug Lederman story over there.

Related Posts (on one page):

  1. More on God and Man At Dartmouth:
  2. God and Man at Dartmouth:

Thursday, September 29, 2005

Latest from Lithwick: Over at Slate, Dahlia Lithwick argues that President Bush should nominate a woman to the Supreme Court because it will make people less willing to criticize Senator Feinstein. Or something like that.
Judith Miller Released, Will Testify Before Grand Jury: Okay, now I am really puzzled. New York Times reporter Judith Miller has agreed to testify before the grand jury in the Valerie Plame investigation, and has been released from jail where she was serving a sentence for contempt of court arising from her failure to testify. According to Editor & Publisher, Miller agreed to testify after speaking with Dick Cheney's chief of staff:
  "She was released after she had a telephone conversation with the Vice President Dick Cheney's chief of staff, I. Lewis Libby, sources said. In that conversation, Libby reaffirmed that he had released Miller from a promise of confidentiality more than a year ago, sources said."
The New York Times offers this report:
  The agreement that led to Ms. Miller's release followed intense negotiations between Ms. Miller; her lawyer, Robert Bennett; Mr. Libby's lawyer, Joseph Tate; and Mr. Fitzgerald. The talks began with a telephone call from Mr. Bennett to Mr. Tate in late August. Ms. Miller spoke with Mr. Libby by telephone earlier this month as their lawyers listened, according to people briefed on the matter. It was then that Mr. Libby told Ms. Miller that she had his personal and voluntary waiver.
  But the discussions were at times strained, with Mr. Libby and Mr. Tate asserting that they communicated their voluntary waiver to Ms. Miller's lawyers more than year ago, according to those briefed on the case. Mr. Libby wrote to Ms. Miller in mid-September, saying that he believed her lawyers understood that his waiver was voluntary.
  Others involved in the case have said that Ms. Miller did not understand that the waiver had been freely given and did not accept it until she had heard from him directly.
  Am I missing something, or was the jailing of Judith Miller not about high principle and the First Amendment but about a factual dispute as to whether Dick Cheney's Chief of Staff had really waived his confidentiality? If you're Bob Bennett, Judith Miller's top-shelf lawyer, wouldn't you try to clear this up before your client spent three months in jail? Something about this seems fishy to me.
Rauch on Katrina: Jonathan Rauch looks at New Orleans disaster planing, and its lack thereof. Thanks to Mike Rappaport for the link.
Now that John Roberts Has Been Confirmed, it's time to ask the big question: What will he do for law clerks? Will this Rehnquist clerk pick up Rehnquist's clerks? Article III Groupie is on the case.

Related Posts (on one page):

  1. Roberts Picks up the Rehnquist Clerks:
  2. Now that John Roberts Has Been Confirmed,
JPS Gives Oath to JGR: CNN has a report here. Just in time for First Monday OT05. Welcome to the Roberts Court.
Using Case Briefs From the Web: One difference between going to law school today and going to law school in the Dark Ages concerns the case briefs available for free on the web these days. Lots of students have posted their outlines and case briefs online, and they're all a Google search away. Maybe you don't feel like working your way through the mysteries of Pennoyer v. Neff? Don't worry — if you google Pennoyer v. Neff, Mike Shecket's case summary is the first thing to pop up. If in doubt, just download it to your laptop and bring it to class. If you're called on, you can improvise with Mike's help.

  I want to hear from current law students about how often students rely on such resources, both in and out of class. I have four specific questions:
1. How often to do you either read online casenotes before class, or download them and bring them to class in case you're called on?

2. Roughly what percentage of your classmates do so?

3. How many times in your law school experience has a student been called on for a case, and responded by reading from what you're pretty sure was an online casenote that the student downloaded from the web?

4. When (3) happened, do you think the professor realized what was happening? If they did, how did the professor respond?
  Thanks for the feedback. My special request is for practicing lawyers not to weigh in with comments. I'm sure lots of lawyers have opinions on whether students should rely on such resources, or have fond memories of what it was like to go to law school in the 1980s, but right now I want to find out about today's student practices.
[Puzzleblogger Kevan Choset, September 29, 2005 at 12:30pm] Trackbacks
More in Common:

What do Morgan Freeman, Alanis Morissette, George Burns, Groucho Marx, and Val Kilmer have in common?

JGR is Heading to One First Street: Congratulations to John G. Roberts, Jr., who was just confimed to the position of Chief Justice of the United States by a Senate vote of 78-22.
Chicago Faculty Law Blog: The University of Chicago Law School has one of the best faculties of any law school in the country, if not the best. And starting on Monday they will have their own blog, too. First Gilmore Girls, now the U of C faculty; this blog thing seems to be catching on. Link via Crescat.
John Roberts Drives a Minivan, at least according to the picture of him currently gracing the homepage of This gives me considerable pause, but on further reflection I remain of the opinion that he should be confirmed as Chief Justice of the United States.
Why Did Tom Delay Waive the Statute of Limitations?: One puzzling aspect of Tom DeLay's indictment is that DeLay agreed to waive the statute of limitations applicable to the alleged offense. For the non-lawyers out there in VC Land, a "statute of limitations" in criminal law is a law that gives the government a specific window of time in which to bring a criminal charge. The Texas statute gave the government three years after the crime was committed to bring charges. By waiving the statute, DeLay consented to being charged outside that window of time.

  The question is, why would DeLay waive the statute of limitations? (The indictment doesn't make this clear, but I assume he waived the statute of limitations before it ran out, not after.) Defense attorney Norm Pattis suggests that there may have been a deal between DeLay and the prosecutor, and that DeLay is planning on pleading guilty at some point. It seems more likely to me that DeLay knew the indictment was coming one way or another, and he figured that he was better off politically if he could put off the indictment for as long as possible. But this is just speculation on my part, of course. Do any VC readers with experience in criminal law have additional insights to share about this?
"Underlying Principles" and Original Meaning: Jon Rowe has an interesting post here on original meaning interpretation. In particular, he responds to arguments based on "the Constitution says nothing about X" and discusses Jack Balkin's recent posts in which Jack seems to be warming up to originalism.

I do have one caution about Jack's appeal to what he calls the "underlying principles" of the text. When the text is vague, appealing to the underlying principles to determine whether or not it covers a particular situation is appropriate and inevitable. But what is not kosher is to dive beneath the surface of the text to ferret out the "underlying principles" and then resurface somewhere else entirely. This is a standard technique by which the text itself can be replaced with the interpreter's version of the "underlying principles" that may even contradict the text itself.

What is appropriate is using the principles underlying the text to interpret its reach, when that reach is in doubt. In other words, when you dive beneath the surface to find the "underlying principles" you must reemerge in the text itself and apply the text (not the principle) to the facts of a particular case.

Here is another way to put the point: All wordings can be vague depending on the situation in which it is being applied. But where the text is not vague, an appeal to underlying principles should not be used to avoid the application of the text to the facts at hand.

For example, that an "underlying purpose" of the Second Amendment (as evidenced textually by the preface to the right to keep and bear arms) was to preserve the conditions that made possible a well-regulated militia MIGHT be used to influence the application of the right to some factual situations at its margins. But that underlying purpose cannot properly be used to undermine the existence of the right itself where the application of the right is clear. Or the fact that an underlying purpose of the First Amendment was to protect political speech should not be used to undermine the protection of political speech on the grounds that this purpose is best served by restrictions on the political speech of some in order that others better be heard.

Among other reasons for rejecting this move is (1) that the right enunciated in the text is likely to be under- or over-inclusive of its underlying principle, but this was the textual means chosen to accomplish this end. (2) There may be other purposes served by the textual provision. And (3) the exact scope of the underlying purpose is highly uncertain and subject to manipulation by interpreters.

I do not think that Akhil Amar's appeal to "first principles" is committing this move. While I am not sure whether Jack is actually doing this--in fact it looks like he is not--certainly others do. Larry Lessig's "translation theory," for example, can easily be used this way and has been.

My purpose is to identify a potential switch away from original meaning in the ostensible name of original meaning by appealing not to the text, but to the unwritten principles underlying the text, and thereby obviating the text itself. This is a subtle move that an originalist committed to a written constitution should be aware of and should resist.

Update: A few brief replies to comments before I must run off to class. The Court admits that it's so-called "Eleventh Amendment" jurisprudence is not based on the text of the actual Eleventh Amendment. If the precedent of Hans v. Louisiana (1890) (decided long before the Rehnquist Court) was wrongly decided, so be it. As Akhil stated in his Slate essay, it is entirely proper to criticize originalists for inconsistency with their method. It is an important virtue of originalism that it permits an appeal to evidence so as to detect inconsistency. In this regard, other methods of "interpretation" may well be nonfalsifiable.

As for the Second Amendment, I (not Eugene) said in my original post that underlying principles CAN be used to deal with problems of vagueness requiring constitutional construction. I contended only that they cannot be used to contradict the text. And yes, this is very similar, if not identical to, the parol evidence rule in contract law that permits extrinsic evidence to be used to interpret--but not to contradict--the meaning of a written contract. Ambiguities (more than one meaning) too can be addressed by historical evidence, but are usually easily reconciled. It is vagueness (whether a term encompasses a particular object) that is the more serious problem.

One final thought: Originalist meaning textualism is not without its difficulties because the attempt to bind governments by written constitutions has inherent difficulties. The important questions are (a) how these difficulties compare with the difficulties of rival approaches to interpretation, and (b) whether the benefits of a written constitution can be maintained when the very persons who are supposed to be bound by a writing can change its meaning to something they think is superior.

Is Country Music Right-Wing?

Well, if patriotism is considered "right-wing" then the answer would be yes. As Victoria Spurs Barrett observes, conventional pop music is not particularly patriotic anymore, but country music still embraces love of country.

Country Music is the soul of America. It doesn't judge her. It doesn't condemn her. Nor does it feel the need to.

I've never been much of a country music fan myself - other than Hank Williams (the original, not the MNF guy) - but I think Ms. Spurs Miss Barrett is making an interesting observation about politics and music.

UPDATE: I have edited the post at Miss Barrett's request. I would also add that I agree with her point that being patriotic should not be considered inherently "right wing" -- but it is nonetheless understandable that public expressions of patriotism are typucally viewed as such today.

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Constance Baker Motley, R.I.P.

The first female African-American federal judge, Constance Baker Motley, died this week. The NYT obituary is here.

Wednesday, September 28, 2005

Judge Danny Boggs:

Confirmthem adds Judge Danny Boggs of the Sixth Circuit to the mix of candidates the Bush Administration is rumored to be considering. Boggs' scathing dissent in Grutter might be enough to disqualify him politically, but it would be hard to come up with a nominee who has a similar desireable combination of Boggs' very considerable intellectual skill, vast experience, appropriate distance from D.C. political intrigue and general inside-the-beltway careerism(unlike a certain recent nominee) and potential political advantage (born in Cuba, and half-Cuban). Nominate him!

Are Great Artists Right-Wing?

What began as a discussion of Martin Scorsese's role in a new Bob Dylan documentary evolved into a discussion of Dylan's politics and, eventually, the ideology of artistry. Sayeth Ann Althouse:

To be a great artist is inherently right wing. A great artist like Dylan or Picasso may have some superficial, naive, lefty things to say, but underneath, where it counts, there is a strong individual, taking responsibility for his place in the world and focusing on that.

[Quote from Ann's comment at 12:23pm]

UPDATE: Ann Althouse has a follow-up here prompted, in part, by misinterpretations of her initial remark. I thought it was clear that by "right wing" she meant individualistic, as opposed to communitarian or egalitarian. As she explains:

I'm not saying great artists consciously adopt the agenda of the political right. I'm saying there is something right wing about the sort of mentality you have to adopt in order to be a great artist! Think it through people. Don't just blow a gasket!
I also think she was making an interesting claim about the mentality that tends to produce great art — that truly great artists are, in some important ways, like the protagonist of an Ayn Rand novel. As for Kieran Healy's commentary, I am not sure the great artist who finds a wealthy patron who shares his or her vision is a "parasite." And while many great artists were subsidized by patrons, I cannot think of many whose careers were made by the NEA or "local arts council." There is a case to be made that great artists, in the end, are in it for themselves, not some broader community or the greater good. It seems to me that is an interesting, albeit contestable, claim — and that is what prompted the initial post.

SECOND UPDATE: If you are thinking about posting a comment, be sure to read this first.

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Federalism and Consistency:

People sometimes argue that others — usually conservatives who have expressed some support for federalism — are being inconsistent: How can you argue for leaving topic X to state-level decision, but favor federal authority over topic Y? Such arguments can of course sometimes be apt. But often they seem to me overstated, (1) because they conflate different kinds of criticism of state action, and (2) because they mistake federalism (support for leaving many things at the state level, but deciding many others at the federal level) for a more categorical localism (support for leaving everything at the state level).

1. Let me begin by laying out several different kinds of questions that people can ask about whether something — and especially some matter of ostensible individual right — should be decided at the national level as opposed to the local level. (By local I'll usually mean "state," but similar questions can sometimes arise as to city/county-state relations.)

a. Should the federal Supreme Court protect a certain ostensible right throughout the nation, displacing contrary federal and state decisions? The answer here will often turn on how one reads the Constitutional text. Most federalists acknowledge that there are at least some such rights that are constitutionally protected, but they may legitimately disagree among themselves (and with those who don't much care about constitutional federalism) about which are protected, and how much.

b. Does Congress have the constitutional authority to protect a certain ostensible right by federal statute throughout the nation, displacing contrary state decisions? The answer here will turn on how one reads the grants of federal power in the Constitution, both the Enforcement Clause of the Fourteenth Amendment, and the provisions (especially broader ones, such as the Commerce Clause) of article I, section 8 of the Constitution. (A related question: Should the Commerce Clause be interpreted as presumptively prohibiting states from doing certain things that have an effect on interstate or foreign commerce, absent specific Congressional authorization?)

c. Should Congress exercise its authority to protect a certain ostensible right by federal statute? The answer here may turn on whether you think the claimed right really is morally proper (e.g., Congress shouldn't enact a statute giving parents the right to beat their children, even if it's within Congress's power to do this). It may also turn on whether you think there are practical or democratic theory reasons for resolving certain matters at the state level (e.g., the right solution may be different depending on different local conditions, the right solution will only be reached through state-level experiments, or there are special dangers in federal authority in this area) or at the national level (e.g., the actions of one state will substantially affect behavior in another state, or the claimed right is so morally imperative that we must protect it as broadly as possible).

d. Even if the federal government shouldn't step in, should people nonetheless urge all states to protect a certain ostensible right? One might, for instance, think that states have the constitutional power to restrict guns, punish various sexual practices, engage in religious speech, regulate economic activity in certain ways, and the like — but one might think that such actions improperly interfere with people's moral rights (even if not their federal constitutional rights), or yield various inefficiencies. As to other matters, one might think that states really should do their own thing, especially when one thinks there aren't really genuine claims of moral right involved, or if one thinks that diversity among states is helpful.

It's therefore important, when analyzing someone's arguments for consistency, to understand which argument they're making. There might be inconsistency in arguing for federal constitutional protection for sexual autonomy but arguing that gun rights questions should be left at the state level (though even there one can of course explain why one thinks that the Constitution should be understood as protecting one sort of individual right and not the other). But it's hard to see the inconsistency in arguing that there should be no federal constitutional protection for sexual autonomy (a level (a) argument), but that it's wrong for states to ban handguns (a level (d) argument) and that such handgun ban proposals should therefore be defeated in state legislatures.

2. More broadly, it's important to remember that few people are complete localists in the sense of believing that everything should be done at the local level, or even complete nationalists in the sense of believing that everything should be done at the national level. (Some people believe that federal courts shouldn't enforce any constitutional federalism-based constraints on what the federal government may do, which is to say that the federal government may nationalize all issues, subject only to individual rights objections; but even they don't generally think that the federal government in fact should nationalize all issues.)

Certainly "federalism" has always been understood as a commitment to preserving zones of authority for both the federal government and state governments (and likely partly overlapping zones to boot). At times federalists have stressed federal power more (consider most of the 1780s federalists) and at times state power more (consider most of the modern federalists), but that simply flows from the different issues involved at the time: Federalists arguing against supporters of very broad state power will take the more-federal-power side; federalists arguing against supporters of very broad federal power will take the less-federal-power side.

In fact, today's federalists probably have a broader view of the proper scope of federal power than most of the 1780s federalists had. They just tend to talk more about state power because today they think matters have swung too far in the direction of federal power.

So again one can't just say "If you're such a federalist on the Violence Against Women Act, why are you in favor of national rules governing gun manufacturer liability?" Federalist theory does support national rules in some areas (for instance, regulations of commerce that substantially affect the national economy) and local rules in other areas (for instance, punishment of noncommercial criminal activity).

One can certainly argue that federalists are mistaken about where the line should be drawn, or even inconsistent in drawing that line. But one needs to do that by concretely explaining why the line should be drawn in a particular place, or why two things must in any event be on the same side of the line — one can't just point to the federalist's supporting national solutions in some situations and state solutions in others and say "Aha! Inconsistency!" Federalism is all about supporting national solutions in some situations and state solutions in others. More broadly, I suspect that good judgment, left, right, center, or libertarian is all about supporting national solutions in some situations and state solutions in others.

3. All this may be obvious — but it's the sort of obvious that people miss. Pointing out supposed inconsistencies in others' positions is such fun that people tend to do it a bit too promiscuously. And sometimes, of course, pointing out inconsistencies is helpful: It may help persuade some people that their own philosophies should lead them to a particular result; or it may persuade others that a particular kind of position is inconsistent and thus shouldn't be given credence.

But we need to be careful in allegations of inconsistency (and especially of hypocrisy). Often the inconsistency is more illusory than real, or at least demonstrating it requires a lot more argument than critics actually provide.

UPDATE: My colleague Professor Bainbridge posts his take on a related issue. Quick excerpt: "I am an unabashed proponent of competitive federalism – i.e., the idea that having corporate law regulated at the state level promotes competition between states seeking to attract corporations to incorporate in their state, which competition tends to lead to efficient legal rules. Does this mean I am ideologically constrained to support Spitzer’s crusade even if I think he is more concerned with raising his profile for a widely-predicted future gubernatorial campaign than cleaning up the corporate swamp exposed by Enron et al.? I’ve been puzzling about that question for a while, and have finally concluded I can be a competitive federalist and still want Spitzer to shut down."

Tom DeLay Indicted, Will Step Aside As Leader: Wow. Read all about it here.

  UPDATE: The indictment is available here in .pdf format (4 pages).
God and Man at Dartmouth:

At his convocation speech welcoming new students to campus a week or so ago, Dartmouth Student Assembly President Noah Riner gave a speech about the need for students to develop character as well as knowledge during their time in college. He quoted Bono, Martin Luther King, Shakespeare, and Jesus as individuals who exemplified good character. Needless to say, he created a subsequent ruckus. And no, its not because he quoted Bono in the same speech as Jesus (although those of us who are Frank Sinatra fans still believe that Bono's duet with Sinatra on "I've Got You Under My Skin" is the first sign of the apocalypse).

For those who are interested, Dartlog, the website of the Dartmout Review, has rounded up links to the speech and much of the fall out here. Dartmouth student Joe Malchow has an especially insightful commentary here (and an update on subsequent commentary here). William F. Buckley has weighed in with a column on the brouhaha, as has Stefan Beck. My fellow Dartmouth Trustee Peter Robinson discusses the issue as well here. Tory Fodder has an interesting commentary on the role of college in developing character.

In my mind, the folks at FIRE get it just about right (as usual)--there is a big difference between criticism for expressing one's views and being punished, censored, or intimidated by college authorities:

So, he said Jesus’ name. It didn’t hurt the students to hear it. Nor did it hurt Riner to get a dose of criticism. Riner chose to share his views knowing that topics of religion and faith are often difficult to insert into the public realm without offending someone. More importantly, he chose to speak with the intent to generate dialogue and encourage his peers to think about their own ideas about one’s character. In another article, he states, “I realize that I have a very specific perspective on the issue of character…[a]nd by adding my perspective, I hope that it’ll give other people the opportunity to examine their own perspectives and to add those to the Dartmouth dialogue.” In the same vein, students who disagreed shared their perspectives and added to the Dartmouth dialogue.

Is there more to say here? There is always more to say (which is my whole point). For now, all I’ll say is: Welcome to college.

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[Puzzleblogger Kevan Choset, September 28, 2005 at 12:45pm] Trackbacks
Coming Soon: "Gerunding Name"

I'm trying to compile a list of movie titles that have the form [Gerund] [Name], where [Gerund] is some one-word "-ing" verb, and [Name] is one or more words that refer to a person (or fish). For example:

Saving Private Ryan, Saving Silverman, Finding Nemo, Finding Forrester, Deconstructing Harry, Being John Malkovich, Regarding Henry, Chasing Amy, Chasing Liberty, Teaching Mrs. Tingle, Guarding Tess, Drowning Mona.

If you can think of any more, please list them in the comments. Please only list decently significant movies (thus Drowning Mona and Teaching Mrs. Tingle are probably out), and make sure that your posts follow the format exactly (thus Looking for Richard is out).

"Hunting Terrorists" at Bucknell:

Apparently the sensitivities of terrorists are easily upset:

On August 29th, the Bucknell University Conservatives Club sent out a campus-wide e-mail announcing an upcoming speaker: Major John Krenson, who had been in Afghanistan "hunting terrorists." Those two words--"hunting terrorists"--resulted in three students being called to Bucknell's Office of the President by Kathy Owens, the Executive Assistant to the President.

When the students arrived, Ms. Owens held up a print-out of the offending e-mail and said "we have a problem here," telling the students that the words "hunting terrorists" were offensive. For the next half-hour, the three students were given a lecture on word choice.

You Really Do Need To Follow the Links in Orin's Post

on the Roberts Memorandum.

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Calls for Discriminatorily Excluding Religious Institutions

from Getting Generally Available FEMA Funds: Cathy Young comments on these.

I should say that under a plausible reading of current Establishment Clause doctrine (see the Mitchell v. Helms case from 2000, and Justice O'Connor's controlling concurrence there), the government indeed must discriminatorily exclude religious institutions from FEMA benefits programs, including programs aimed at repairing damage incurred when the institution was trying to help disaster victims: The theory would be that in such "direct aid" (as opposed to private-choice voucher) programs, no government money — even money that's distributed evenhandedly to all property owners damaged in a disaster — may flow to religious institutions unless there are up-front controls instituted to make sure that the money couldn't be used for religious purposes. I suspect there are no such controls on FEMA money, given that FEMA programs weren't designed with this in mind.

But that, it seems to me, just shows how wrong current Establishment Clause doctrine is on this score — and how much better current Establishment Clause doctrine is when it comes to private-choice vouchers, where the law now recognizes that equal treatment is not establishment. For more on this, see my Equal Treatment Is Not Establishment piece (which was written before Mitchell v. Helms and Locke v. Davey, but which is in a sense a prospective criticism of those decisions, as well as a prospective defense of Zelman v. Simmons-Harris, the private-choice voucher case).

Finally, just to make clear the current legal rule (to the extent that one can make it clear), here's a summary from my Religion Clauses textbook:

  1. Evenhanded “private choice” funding programs — in which funds are routed by private individuals to institutions of their choice — are generally permissible even when these funds end up being used for religious purposes. See Zelman v. Simmons-Harris (2002).
  2. Evenhanded “direct aid” programs — in which benefits are given directly to religious institutions — are
    1. Permissible if and only if there’s some assurance that the funds will not be used for religious purposes.
      • Thus, a program that funds new buildings in all universities, and then lets the universities use those buildings for religious purposes, is forbidden. Tilton v. Richardson, 403 U.S. 672 (1971).
      • The program in Mitchell v. Helms (2000), or a program that gives schools secular equipment, such as secular books, Board of Ed. v. Allen, 392 U.S. 236 (1968), is permitted.
      • This is the result of Mitchell, in which the two swing Justices (O’Connor and Breyer) took this view. Four other Justices (Rehnquist, Scalia, Kennedy, and Thomas) take the view that there is no Establishment Clause problem with religious institutions participating in any evenhanded benefit programs, so long as the benefits are not themselves religious (i.e., so long as the benefits are money or secular books or supplies).
      • This is also pretty much the rule for direct-aid “charitable choice” programs, in which the government subsidizes a range of public service programs (for instance, alcohol and drug abuse rehabilitation programs), some of which are run by religious organizations. See Bowen v. Kendrick, 487 U.S. 589 (1988).
    2. Justice O’Connor also voted to uphold the program in Rosenberger, even though it was not a “private choice” program — religious newspapers were directly subsidized, rather than getting funds through the private choices of individual students — and even though the funds were certain to be used for religious purposes. Query how this can be reconciled with her position in Mitchell.

UPDATE: I originally wrote "per-capita voucher" where I meant to say "private-choice voucher"; silly mental crossed wires on my part — "private-choice voucher" is the Establishment Clause term of art. Thanks to Marty Lederman for correcting me on this.

Bush's Terrible Idea:

President Bush and Senator John Warner (R-Vir.) are pushing to create additional loopholes in the Posse Comitatus Act, the law that prohibits use of the military in domestic law enforcement. The drug enforcement loopholes created in the 1980s have already led to the deaths of innocent Americans. A "disaster" loophole could be even more dangerous. The fact that local, state, and federal governments bungled some of the initial response to Hurricane Katrina is not a good reason to destroy the principle of separation of the military from civil law enforcement--a principle at least as important to civil liberties as the separation of church and state.

Gene Healy of the Cato Institute is the leading spokesman for the pro-liberty side on the Posee Comitatus issue. A chapter I wrote in a Cato book a few years ago provides some historical background, and details the terrible results of the drug war loophole in the Posse Comitatus Act. You can also watch a RealVideo/Audio of a 2002 Cato Institute panel on the PCA, in which Rep. Bob Barr, Stephen Halbrook, Paul Schott Stevens, and I discuss proposals to weaken or eliminate the PCA.

Leiter's Rules: Brian Leiter has some good advice for law schools seeking to promote themselves to law professors to improve their reputational ratings for U.S. News.
...since everyone wants to get their news out before the new U.S. News surveys get sent out. Yesterday, I received promotional materials from six different law schools! I read, or at least skim, many of these publications, since it's usually interesting to learn about new faculty hires and recent publications. I know I'm also the exception, as I watch many of my colleagues dump these items straight in the trash. Law schools are now spending hundreds of thousands, perhaps millions, of dollars on these promotional efforts, but I do wish schools would follow a few simple rules when mailing materials to other academics:
Read his list of rules here.
"When Affirmative Action was White":

Ira Katznelson had a piece in the Washington Post yesterday discussing the discriminatory effects of New Deal and Fair Deal economic legislation. As previously noted by Jacob Levy in the comments section of the VC last week, Katznelson's book on the subject seems to complement my own discussion of the discriminatory effects of New Deal labor policies in Only One Place of Redress.

When I was on the teaching market, I made the mistake (as a professor here at University of Michigan mused to me over lunch recently, "never do your job talk on race or rape") of basing my job talk on themes related to Only One Place of Redress. Given that the paper was purely historical, I thought it odd that professors at a couple of schools drew the conclusion that the point of my paper was to somehow undermine affirmative action. Quite the contrary, I protested; while New Deal labor policies tend to give some credence to public choice theory's general skeptical outlook on government, and while I was not attempting to address any current political issues at all,* the public policy conclusion that readers were mostly likely to draw from my work (especially if they happened to be liberal law professors) was that if government policies in the past were partly responsible for creating the black underclass, it is the government's obligation to enact policies to try to undo that damage.

I haven't seen Katznelson's book yet, but his op-ed makes the point explicitly: past federal policies were "affirmative action for whites," and the current response should be massive federal aid for African Americans.

*Given that African Americans are now protected by the Votings Rights Act, my thesis that their interests were ignored during the New Deal period because they mostly lacked voting rights and thus political power was not especially "relevant."

UPDATE: John Rosenberg points me to an interesting review of Katznelson's book by Jonathan Yardley, plus Rosenberg's own comments.

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Oops: When you run this article about a little-noticed John Roberts memo on Tuesday, it's kind of embarrassing to have to run this correction on Wednesday. Hat tip: Howard.

Tuesday, September 27, 2005

Was James Madison a "Hard-line, Right-Wing Conservative"?

From the Havard Crimson, commenting on a brief in the Solomon Amendment case by my friend Prof. John Eastman:

Tyler Professor of Constitutional Law Richard H. Fallon said that Eastman’s brief presents "an argument with no foundation whatsoever in the decisions of the Supreme Court, going back to the 1930s." But, Fallon said, the prospect of Thomas including the brief’s argument in a concurring opinion lies "entirely within the realm of possibility." "It’s an argument which some of the real hard-line, right-wing conservatives who would like to go back to something more like an original understanding of the Constitution push," Fallon said.

Damn those hard-line, right-wing conservatives for thinking that the original understanding of the Constitution should have something to do with constitutional law!

Hat tip: Bashman My friend J.P. Borda is back from Afghanistan and is selling photographs he and other soldiers took while stationed in Afghanistan and Iraq. You can see the photos (albeit with the annoying line thingy through them) here. The site has a blog too, of course.
Preemptive Post on the Federalist Society:

Whomever is nominated to replace Justice O'Connor, attention will once again be focused on whether the nominee has been a member of, or otherwise affiliated with, the Federalist Society. As has been noted several times on this blog, membership in the Federalist Society tells you nothing about a nominee's political or legal ideology, except that his views are very likely right of the legal center, which of course is a given for a Bush nominee. I thought I'd back up that contention with something more specific, namely my recollection of the general political views of students who were active in the Federalist Society in my Yale graduation class (1991):

(1) Three mainstream conservatives, all of whom had a religious element to their views; (2) One neoconservative (from a prominent neoconservative family); (3) One somewhat militantly atheistic libertarian; (4) One Objectivist; (5) A moderate, pro-life Democrat (who later became a pro-life libertarian anarchist); (6) One culturally liberal (so much so that my classmates would ask her how she could stand hanging out with those "right-wingers"), but politically very libertarian student; (7) Me

Fellow travelers included a couple of libertarian-conservative Mormons influenced in part by a Professor Reynolds at BYU, a few moderately conservative students, and others whom I'm probably forgetting.

As should be pretty obvious from this list, it would be impossible to accurately predict where a Yale Federalist would have stood on a host of social, political, and foreign policy issues based solely on the mere fact of his Federalist membership. It would be even less feasible to try to predict where a Yale Federalist would have stood on particular legal controversies. (I specifically recall a rather surprising dinner discussion of the flag-burning case, in which every Federalist in attendance--fifteen or so, including some very staunch conservatives--thought that flag-burning was protected by the First Amendment, despite four votes in the Supreme Court to the contrary, including Stevens).

Nothing I've seen since then suggests that the Federalist Society is any less of a "big tent" for the legal right-of-center than it was then, or that Yale was especially unusual in Federalist Society circles in having such a wide range of views represented.

So, when President Bush nominates an O'Connor replacement, let's have a full and vigorous discussion of the nominees' legal views. But let's stop with the "Are you now or have you ever been a member of the Federalist Society" nonsense.

Why Gun Owners Worry:

I've long been struck by attempts to paint gun rights activists as paranoid. "[N]o one is seriously proposing to ban or confiscate all guns. You hear that only from the gun lobby itself, which whistles up this bogeyman whenever some reasonable regulation is proposed." Just modest, reasonable regulations, folks, that's all that it's about; and you must be an extremist or irrational if you're worried about more.

In response, I put up a Web page documenting all the groups and commentators that have urged total or near-total handgun bans (and in some instances bans on all guns); and, of course, those jurisdictions that have in fact implemented such bans. It hardly seems paranoid to worry about proposals that have been made by Senators, Representatives, mayors, editorial boards of the L.A. Times and the Washington Post, leading opinion journalists, and leaders of prominent gun control groups — and that have been in fact enacted in some places (including our nation's capital).

Still, sometimes even I am surprised by the breadth of the proposals that I hear, and the attitude they bespeak towards guns and gun policy issues. Here's one from lawprof and legal blogger Kaimi Wenger, prompted by a recent workplace shooting:

Here's a question, perhaps a suggestion: Should companies, as a condition of employment, start requiring workers to sign an agreement of non-gun-ownership? This would require an employee to state that she does not own any guns, and that she will not purchase any guns during her employment. It seems that if an employer required an employee to agree to non-gun-ownership, the likelihood of a workplace killing by that employee would be lessened.

Such a change wouldn't altogther end workplace killings. There's the possibility that the employee would lie on her application, or would simply acquire a gun after being fired and use it to attack her workplace. On the other hand, it is all but certain that there is some population of unstable, disgruntled employees who own guns, and that for some of those employees, their easy access to currently-owned guns is an important enabling factor that facilitates a decision to transfer their anger into actual killing of their co-workers.

Would a requirement of non-gun-ownership be legal or enforceable? I'm not sure. (Do we have any employment law people here?) A while ago, Eugene Volokh blogged about a court upholding a ban on gun ownership by public housing residents — apparently that kind of restriction on gun ownership is allowed. On the other hand, there is (at least in one state) a self-defense exception to the at-will employment doctrine.

If this kind of provision is legal, then perhaps it is something employers (and their insurers) should start looking into. . . .

Now as it happens, I'm libertarian enough to think that such a proposal should be legal; a private employer should generally be free not to employ people whom it doesn't want to employ. Some laws restrict this in some measure, for instance as to race or sex discrimination, but I don't support expanding those laws. A few states already ban discrimination based on lawful off-the-job behavior, and gun ownership may be one such example, but I think that this should be left to the market and social norms, not to legal constraint.

Nonetheless, while this proposal isn't a government-imposed gun ban, it surely is a suggestion for social and business norms that would dramatically affect people's ability to have guns (whether handguns, rifles, or shotguns) for self-defense, including in their own homes. What's more, it seems to me evidence quite a remarkable attitude towards guns, and towards the cost-benefit calculations to be made when making gun policy.

After all, the proposal would at best prevent a tiny fraction of all workplace shootings: To be affected, the murderer would have to be someone who (1) is sufficiently rule-abiding that he complies with the employer policy, (2) is so staggeringly non-rule-abiding that he's willing to commit murder (lots of us get upset at people, but very few are actually willing to violate the moral and legal norms about murder), and (3) doesn't have the time or the opportunity to buy a gun, or get a gun from a friend or another source, between the time that he decides on murder and the time he commits murder. (Note that the killer in the case that seemingly triggered Prof. Wenger's post was apparently fired in 2004, following an arrest on child pornography charges, though the story is slightly ambiguous on that score.)

There are apparently about 550 workplace homicides per year in the U.S. (2004 data); of those, 7% were committed by coworkers or former coworkers (1993-1999 data). Even if every one of these was committed with a firearm, that would be roughly 40 homicides per year; and even if every employer in the country implemented this policy — a result that would in some ways be similar to, though not identical with, a total gun ban — and 10% of all potential murderers fit within categories 1, 2, and 3, we'd save . . . 4 deaths per year, for a rate of roughly one in 50 million workers. Even if the effectiveness rate were 50% rather than 10%, we'd still save one in 10 million workers. Or if you look at it on an enterprise basis, a company with 10,000 employees would like avoid, on average, one death in 5,000 years (assuming the 10% number).

What about the cost side of the ledger, which isn't even mentioned in the proposal? For starters, 35-50% of all U.S. households contain a gun. Presumably the policy would have to operate on a household basis, since an adult member of a household likely has access to the guns in his household. So to avoid one death in 5,000 years (or one in 1,000 years, if you use the in my view wildly optimistic 50% figure), the company would risk losing 35-50% of its potential workforce. Even if half the workforce cheerfully complies, then the company would still lose 17-25% of its potential workforce. (Of course, more likely the company will lose little of its potential workforce, since no-one would take the contract seriously, but then there'd be no upside to the contract, either.)

And of course if half the workforce does comply, that half of the workforce would be completely disabled from using guns for lawful self-defense, either in the home or in the street (in the majority of states in which any law-abiding adult is entitled to get a license to carry a concealed weapon). Yet the proposal doesn't even mention this loss of self-defense. Is it that the response to losing 20% of your potential employees should be "good riddance"? That loss of people's ability to defend themselves is irrelevant? That it's so obvious that gun ownership doesn't really promote the ability to defend yourself? That workplace shootings are so overcovered by the media, and law-abiding gun ownership is so undercovered, that the benefits of the proposal would loom far larger than reality, and the costs would seem far smaller than they are in reality?

I realize that this is just one proposal by one law professor. If that's the only call I heard for gun bans or something close to them, then indeed this would be nothing to worry about. But, as my calls-for-gun-bans Web page demonstrates, the proposal is just an unusual twist on a longstanding pattern. Given this longstanding pattern, is it any surprise that people who care deeply about self-defense rights worry about even modest proposals? Is it any surprise that they scoff at claims that of course the core of their self-defense rights is secure, and that no one is seriously proposing to ban their guns? Is it any surprise that inside many a gun controller there is a would-be gun banner, whether the ban operates through legal compulsion or through some proposed social norm that would strip those who want to own a gun for self-defense of their livelihoods?

UPDATE: By the way, just to make it clear, I realize that Prof. Wenger's post is phrased as only "perhaps a suggestion" and "perhaps it is something that employers (and their insurers) should start looking into." If this means that the professor is open to persuasion, I certainly hope to persuade him. Yet the other calls for gun bans that I point to are surely not merely "perhaps suggestions." The movement to ban guns is out there, and has some prominent adherents, who aren't just throwing around hypothetical suggestions (which I surely agree is a perfectly laudable use of blogging).

Anna Nicole Goes to Court:

This is the most important cert grant announced today -- at least for fans of the Anna Nicole Show. As reported by Lyle Denniston at SCOTUSBlog, "The case tests whether the "probate exception" to federal court jurisdiction bars those courts entirely from deciding estate-settlement cases, usually reserved for state courts." There's more on the case here, and Anna Nicole's official website is here.

The Flying Nun: Daniel Solove is blogging about a nun who had trouble flying because her name was on a TSA list of persons marked for special screening at airports. While Dan is focused on the implications for database control, I can't help thinking that Sally Field would never have such problems.
Supreme Court to Review Anticipatory Search Warrants: The Supreme Court announced today that it will consider the constitutionality of anticipatory search warrants, granting certiorari to review the Ninth Circuit's 2004 decision in United States v. Grubbs. I blogged about this topic and the Grubbs case back in August 2004:
  I have read a lot of Fourth Amendment cases over the last few years, but today I learned something new: several courts of appeals have allowed the government to obtain and execute "anticipatory" search warrants. According to these cases, the government can get a warrant even if their case for probable cause hinges on some future event. If the future event occurs, the warrant becomes operative and they can execute the search. If the future event does not occur, then the warrant is not yet operative and they cannot execute the search.
  The Ninth Circuit's most recent decision, last week's United States v. Grubbs, provides a helpful illustration. The police obtained a warrant to search a home for child pornography. The "condition precedent" was the receipt of child pornography that the suspect had ordered to be delivered to his home. The police obtained the warrant, and then waited for the item to be delivered. When it was delivered, the police executed the warrant.
  Maybe I am missing something, but I find this line of cases quite troublesome. The whole point of a warrant requirement is to have a neutral magistrate decide when probable cause exists. The decision to authorize the search is up to the judge, not the police officer. The addition of a condition precedent delegates that decisionmaking authority to the law enforcement officer, at least in part. Because the officer decides when the triggering event has occurred, the probable cause determination is no longer made entirely by the neutral magistrate.
  Although the Court has agreed to review Grubbs, it's hard to predict whether the Justices will look at the issues broadly or narrowly. The Supreme Court has never approved anticipatory warrants, so a majority of the Court may take this case to reject the very idea as inconsistent with the Fourth Amendment. On the other hand, Grubbs is a Reinhardt opinion ruling in favor of the defendant, and the SG's office filed its petition on a narrow ground seeking to reverse Reinhardt. The Question Presented in the petition filed by the SG's office is a narrow one: "Whether the Fourth Amendment requires suppression of evidence when officers conduct a search under an anticipatory warrant after the warrant's triggering condition is satisfied, but the triggering condition is not set forth either in the warrant itself or in an affidavit that is both incorporated into the warrant and shown to the person whose property is being searched." The SG's Office presumably will try to frame the dispute narrowly; they'll present anticipatory warrants as well-established and uncontroversial, and focus on the details of how they are obtained. Counsel for Grubbs presumably will argue the case more broadly as a challenge to anticipatory warrants as a whole.

  What are the chances that the Justices will reject anticipatory warrants altogether? If it happens, I suspect the voting pattern will resemble something like the line-up in Blakely v. Washington (with the votes of Roberts and a possible O'Connor replacement anyone's guess, of course). I think Justices Scalia and Thomas are going to have serious problems with anticipatory warrants. The Fourth Amendment states that "no Warrants shall issue, but upon probable cause." Anticipatory warrants are warrants that issue without probable cause; the probable cause comes after the warrant has been issued. (Or at least that is often the case. There are really two types of anticipatory warrants: warrants issued based on probable cause to believe that there will be evidence in a particular place at a particular time in the future, and warrants issued based on the belief that there will be probable cause when some condition precedent occurs. I'm referring to the latter.) Scalia and Thomas will probably say that this is a no-no. And when Scalia and Thomas have pro-defendant inclinations in criminal cases, there are usually a few more votes from liberal Justices ready to join them.

  On the other hand, you can bet that Justice Breyer will uphold the basic idea of anticipatory warrants. Shortly before he became a Justice, Breyer approved anticipatory warrants under the Fourth Amendment in United States v. Gendron, 18 F.3d 955 (1st Cir. 1994). Here is Breyer's pragmatic take:
  In general, the simple fact that a warrant is "anticipatory"-- i.e., that it takes effect, not upon issuance, but at a specified future time-- does not invalidate a warrant or make it somehow suspect or legally disfavored. Warrants often do specify that they will take effect upon issuance. But the Constitution imposes no such requirement. Rather, it says that a search must not be "unreasonable," and that warrants must be supported by "probable cause." U.S. Const. amend. IV. There is nothing unreasonable about authorizing a search for tomorrow, not today, when reliable information indicates that, say, the marijuana will reach the house, not now, but then. Nor does it seem automatically unreasonable to tie the warrant's search authority to the future event that brings with it the probable cause (e.g., the time of "delivery of a large brown package addressed to X with return address Y"). In principle, the use of a "triggering event" can help assure that the search takes place only when justified by "probable cause"; and anticipatory warrants may thereby offer greater, not lesser, protection against unreasonable invasion of a citizen's privacy.
  (Note how Breyer replaces the textual requirement that "no Warrants shall issue, but upon probable cause" with a somewhat different inquiry into whether the warrant "can help assure that the search takes place" when probable cause exists.) I have no idea which side will win out, but United States v. Grubbs should be an interesting case to watch.
[Puzzleblogger Kevan Choset, September 27, 2005 at 9:15am] Trackbacks
A Physics Puzzle:

Today is the 100th anniversary of Einstein's publication of the paper containing "E=mc^2." (Actually, Einstein wrote "mass diminishes by L/c^2", where L is used instead of E to represent energy, and if you multiply both sides by c^2 you get the formula we're familiar with.)

In honor of the 100th anniversary, I wrote a crossword for today's New York Times celebrating the equation.

If you can't get hold of a copy of the Times, email me at [mylastname] and I'll send you a pdf.

Doug Lichtman is guestblogging over at PrawfsBlawg about why standards governing lawsuits are concerned with irreparable harm, but not irreparable benefits. Interesting stuff.

Monday, September 26, 2005

Bush's Second Pick May Be Announced Friday, according to CNN. From the story:
  President Bush could announce his next Supreme Court pick as early as Friday, a day after John Roberts is expected to be confirmed as chief justice, administration officials close to the process told CNN Monday.
  Bush earlier in the day hinted he was leaning toward a woman or minority candidate.
  "I am mindful that diversity is one of the strengths of the country," he said. "I have interviewed people in the past and thought about people from all walks of life."
  Bush did not indicate when he might submit his pick, although the officials who spoke on condition of anonymity said it could come Friday.
  The Senate is expected to vote to confirm Roberts as chief justice on Thursday.
  The sources also confirmed the search is focused on women and minorities.
  So the long conference was today, the Roberts vote is scheduled for Thursday, the second nominee may be announced Friday, and the new Term officially starts on Monday. Talk about a busy week for Supreme Court geeks. Hat tip: Howard.
Justice Ginsburg, Prostitution, and Polygamy:

Slate's Dahlia Lithwick writes, as an aside in a piece on John Roberts:

Lest you think I'm being too easy on Senate Republicans, I hasten to add that Lindsey Graham's (and today, John Cornyn's) disgraceful use of these hearings to attack Ruth Bader Ginsburg as a champion of legalized prostitution, polygamy, and pederasty is beyond vile. . . . [E]ven as [conservatives] call for bipartisanship, they can't seem to resist attacking a judge with distorted versions of her 30 year old writings. Nice.

Yet it seems to me that there's no real "distort[ion]" of Justice Ginsburg's views on prostitution, polygamy, and lowering the age of consent; and it's hard therefore to see why there's any "disgraceful" or "vile" in the Republicans' arguments. I've blogged here about the age of consent question [UPDATE: since posting this, I have concluded that Justice Ginsburg was likely the victim of a drafting error as to the age of consent, and the report's critics, including me, themselves erred in not seeing the error on this particular matter], but let me speak a bit more about prostitution and polygamy. Sex Bias in the U.S. Code (1977), on which Ginsburg was one of the two lead coauthors, has this to say (among other things) about prostitution (pp. 97-102; there is similar text at pp. 72-76 of a 1974 version of the report):

These [federal] prostitution proscriptions are subject to several constitutional and policy objections. Prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions. See Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973). But sex-neutralizing the statutory language is unlikely to effect significant substanive change, for enforcement concentrates on the female even when male prostitution is encompassed in the same category. With the exception of several communities where it is police policy to arrest the client also, it is realistic to expect that vigorous enforcement will be directed against the person who patronize a prostitute. . . .

Although S. 1400 §1841, in contrast to the Mann Act which it would replace, is cast in sex-neutral form, retaining prostitution business as a crime in a criminal code is open to debate. Reliable studies indicate that prostitution is not a major factor in the spread of venereal disease, and that prostitution plays a small and declining role in organized crime operations. . . .

Recommendations . . .

18 U.S.C. §§1384, 1952(b), 2421-2424 [the prostitution sections that the report was referring to] — Repeal these sections.

The report also has this to say about polygamy (pp. 195-196; see pp. 190-191 for similar text in the 1974 version):

This section [48 U.S.C. §1461] restricts certain rights, including the right to vote or hold office, of bigamists, persons "cohabiting with more than one woman," and women cohabiting with a bigamist. Apart from the male/female differentials, the provision is of questionable constitutionality since it appears to encroach impermissibly upon private relationships. [Endnote: Cf. Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 439 (1972).]

Recommendations . . .

48 U.S.C. §1461 - substitute 'person' or 'individual' for 'woman.' If the section is retained, it should be narrowed to avoid conflict with constitutionally-protected privacy interests.

So the report indeed spoke out in favor of legalizing prostitution: It (1) suggested that prostitution laws are "arguably" unconstitutional under the right of privacy, (2) argued that they are in practice nearly certain to be enforced in sex-discriminatory ways, and that (3) expressly recommended that they be repealed. It thus is no distortion at all, I think, to suggest that Justice Ginsburg supported legalization of prostitution, given that her name is indeed on the report, and that it's unlikely that she would have just missed an extended substantive passage such as this one.

It also seems to me that the report can fairly be read as favoring the legalization of polygamy. It is conceivable that it might have been objecting only to restrictions imposed on women who are not themselves purporting to be married to a bigamist, but who are simply living with the bigamist without claiming a marriage. But given that the section was in practice likely to be focused on people who are indeed purporting to be living in plural marriages, it seems that the report was indeed suggesting that the ban on polygamy was illegal. (Note that the section could not be reasonably read, I think, as objecting solely to stripping polygamists of the right to vote: Given that it's permissible to strip someone of the right to vote because of his past crimes, the constitutional objection must be that polygamy can't be criminalized in the first instance. Moreover, the objection is to "encroach[ing] impermissibly upon private relationships," with cites to the right-of-privacy cases, not to encroaching impermissibly upon voting rights.)

So in any event, it seems to me that assertions that Ginsburg supported legalizing polygamy are at most potential overreadings of the report — albeit overreadings that are perfectly plausible, though not the most careful, interpretations — and not "vile" "disgraceful" "distort[ions]." And, as I said, such assertions about her supporting legalized prostitutions seem to be completely accurate.

As I noted in my earlier post, one could argue that Justice Ginsburg only believed this in the past, and might not believe this now, 30 years later. But she was in her 40s at the time, and a mature legal scholar; and there seems to me to be little independent evidence that she's changed her mind. It thus seems like a fair inference that she has kept her views, and there seems to me little vile, disgraceful, or distorted in making such an inference.

Likewise, it seems to me that Timothy Noah, Slate's Chatterbox, is mistaken in generally characterizing as "ridiculously distorted" Ed Whelan's quotes from Justice Ginsburg's report. Ed Whelan wrote, quoting the 1974 version of the report:

“Prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions.” [72]

A statutory restriction on political rights of bigamists “is of questionable constitutionality since it appears to encroach impermissibly upon private relationships.” [190-191]

“Sex-segregated adult or juvenile institutions are obviously separate and in a variety of ways, unequal. . . . If the grand design of such institutions is to prepare inmates for return to the community as persons equipped to benefit from and contribute to civil society, then perpetuation of single-sex institutions should be rejected.” [75]

“The Boy Scouts and the Girl Scouts, while ostensibly providing ‘separate but equal’ benefits to both sexes, perpetuate stereotyped sex roles to the extent that they carry out congressionally-mandated purposes.” [131]

“Replacing ‘Mother’s Day’ and ‘Father’s Day’ with a ‘Parents’ Day’ should be considered, as an observance more consistent with a policy of minimizing traditional sex-based differences in parental roles.” [133]

Other nuggets abound. For example, Ginsburg recommended that the age of consent for purposes of statutory rape be lowered from 16 to 12. [See pages 69-71 and the specific recommendation regarding 18 U.S.C. § 2032 on page 76.]

As best I can tell, all of these quotes are quite sound, and in context. They may have profited from slightly more context — see, for instance, the Boy Scouts/Girl Scouts quote, which in context gives more evidence of the stereotyped sex roles that Justice Ginsburg was referring to. But none of them strike me as being particularly out of context, as you can see for yourself by looking at the 1974 version of the report, posted by Mr. Whelan.

Again, then, it seems to me that the critics of Justice Ginsburg are more sinned against than sinning here. They are pretty accurately describing Justice Ginsburg's views, and being undeservedly called names because of it.

Blogging the Hussein Trial:

A bunch of international law prof types have created "Grotian Moment: The Saddam Hussein Trial Blog." contributors include Ruth Wedgwood (Johns Hopkins), Paul Williams (American), Linda Malone (William & Mary), Michael Scharf (Case Western) and Leila Sadat (WashU St. Louis), among others. For those interested in following the trial, it's a must visit site.

UPDATE: In a related vein, Dan Drezner has some thoughts on trying Hussein here.

The Free-Spending GOP:

Today's Novak column chronicles the dissension within Republican ranks over the ever-swelling federal budget. According to Novak, the House leadership has been putting pressure on junior members critical of Congress' free-spending ways because House majority leader Tom Delay "does not like his rank-and-file members depicting a free-spending Republican Party." If that's really how Delay feels, then perhaps he should do something to control the Republican Party's free-spending ways. It's that simple.

This Delay op-ed from the Washington Times is somewhat promising, but it was only a few days ago that Delay claimed there was no fat in the federal budget to cut in order to fund post-Katrina spending. Instapundit has more here and here.

Roberts Senate Vote Tentatively Set for Thursday: Lyle Denniston has the report.
[Puzzleblogger Kevan Choset, September 26, 2005 at 2:43pm] Trackbacks

Imagine you have an equilateral triangle 2 inches to a side. Prove that no matter how you draw 5 points within the triangle (anywhere in the interior or on the perimeter), there will be two points an inch or less away from each other.

Did the Media Exaggerate What Happened at the Superdome?: I'm not sure what to make of this report, but it's potentially important:
  That the nation's front-line emergency management believed the body count [at the New Orleans Superdome] would resemble that of a bloody battle in a war is but one of scores of examples of myths about the Dome and the Convention Center treated as fact by evacuees, the media and even some of New Orleans' top officials, including the mayor and police superintendent. As the fog of warlike conditions in Hurricane Katrina's aftermath has cleared, the vast majority of reported atrocities committed by evacuees have turned out to be false, or at least unsupported by any evidence, according to key military, law enforcement, medical and civilian officials in positions to know.
  Any thoughts? Hat tip: The Corner.
Bowling Alone and Unintended Consequences:

The inspiration for Robert Putnam's famous book Bowling Alone was the observation that although Americans bowl at more or less the same rate as always, they increasingly are "bowling alone" rather than as part of organized leagues. Putnam sees this decline in participation in bowling leagues as suggestive of a general American social decline in the desire of individuals to join social groups, etc. "Bowling alone" is a case study of the phenomenon.

My cousin owns a bowling pro shop in upstate New York. Last year a law was enacted that prohibited smoking in bowling alleys, in all parts (including the lounge). In response, half of the bowling leagues at that alley folded (nearly taking his pro shop business with it, incidentally). Putnam is talking about the decline in community over a long period predating last year; nonetheless, I thought this story was an interesting example of the surprising and unintended social effects that can arise from a seeming unrelated regulation. More people are "bowling alone" in upstate New York this year than last, but it has little to do with Putnam's explanation.

Similarly, I recall that when I lived in Mississippi, one of my colleagues observed that he thought that one reason why "social capital" levels tended to be lower in Mississippi than elsewhere was the historic prohibition on the sale of liquor by the drink in bars and restaurants (lifted relatively recently). He hypothesized that this one law gave rise to a custom of entertaining in ones' homes, rather than in public houses like bars and restaurants. This, he believed, led to a general atrophying of the public sphere not only in terms of parks, but also in terms of lower levels of public trust and civic-mindedness. I don't know if it is true, but if so, it is another interesting example of the phenomenon. For what it is worth, when we lived in Mississippi we always went to friend's homes for dinner, which we do much more rarely in Northern Virginia. Such social cultures, of course, are highly network goods, and thus become highly path-dependent and difficult to later change.

Mickey Kaus on TimesSelect: This is pretty funny. Thanks to Glenn for the link.
E-Mail Error:

I accidentally deleted an e-mail that seemed to be inquiring about advertising on the blog; a particularly unwise thing to accidentally delete, but there it is. If you sent me such an e-mail over the weekend or this morning, please e-mail me again. Many thanks, and sorry for the error!

University Channel: Posting free videos of academic lectures on the web -- seems like a great idea. Background here.

Sunday, September 25, 2005

New Orleans admits that gun confiscations have no legal basis

On Friday, the Parishes of Orleans and St. Tammany entered into a Consent Decree in the federal district court for the Eastern District of Louisiana. The decree was the result of a lawsuit brought under section 1983 and under the Declaratory Judgement Act by the NRA and the Second Amendment Foundation. After the judge informed the defendants that he would very likely order a preliminary judgement against them, the defendants agreed to a consent decree. In the decree, the defendants assert that there was never an official government policy of confiscating guns, and admit that they never confiscated guns in accordance with Louisiana's emergency powers statute. The parties agreed to accept the the court's injunction (an injunction which is empowered only by section 1983, since an injunction is not a declaratory judgement) which:

1. Forbids them from confiscating guns.

2. Orders them to return all guns which have been confiscated.

Of course it was on where the legal argument was first made that "New Orleans Gun Confiscations are Blatantly Illegal." Now, the perpetrator governments have agreed to this legal conclusion, although they maintain the implausible assertion that gun confiscations were not the result of official policy. No doubt the factual issue will be explored in the lawsuits which are almost certainly to follow against the uniformed looters who stole guns from law-abiding citizens. Kudos to plaintiffs' attorney Stephen Halbrook, whose memorandum of law is available here.

U.S. Web firms aid in repression

My latest media column for the Rocky Mountain News details how firms such as Yahoo, Google, Microsoft, and Cisco have chosen to help the Chinese tyrants create the world's most sophisticated architecture of repression. I also argue that the greedy and immoral policies of these corporations directly endanger Americans. Because moral considerations obviously have not swayed these companies, I conclude that "Perhaps only consumer and shareholder pressure can persuade the American companies to change their evil ways."

The Julie Myers Nomination, And Its Critics: In the last week, Michelle Malkin, Red State, the National Review, and many other conservative blogs and bloggers have harshly criticized the nomination of Julie L. Myers to be Assistant Secretary of Homeland Security for Immigration and Customs Enforcement (aka ICE). The basic theme of the criticism is that Myers is a political crony: she's only 36, she's the niece of the outgoing Chairman of the Joint Chiefs of Staff, and her husband is Michael Chertoff's chief of staff. Someone who has used her connections to get such a important job shouldn't be confirmed, the thinking goes.

  Given the reluctance on the Right to criticize the Administration, my first reaction was to assume that these criticisms must be justified. But the more I think about it, the less sure I am as to why the Myers nomination is objectionable. (Full disclosure: I have met Myers once or twice, although I don't think I have ever had a conversation with her.) Although young, Myers has significant experience in law enforcement. She is a former Assistant U.S. Attorney, served as the Assistant Secretary for Export Enforcement at Treasury, and was the Chief of Staff to the Assistant Attorney General for the Criminal Division at DOJ. She is also very smart, as her credentials suggest: she's a Cornell Law grad and former Eighth Circuit clerk. Finally, Myers has the trust of the head of Homeland Security: the Assistant AG at DOJ for whom she served as Chief of Staff was Michael Chertoff himself.

  Critics of the Myers nomination have focused mostly on her husband and her uncle. Her husband is Michael Chertoff's current Chief of Staff, they point out, suggesting that he helped her get the nomination. I don't understand how that is supposed to work: Julie Myers served as Chertoff's Chief of Staff before her husband did. To the extent Myers has inside connections with Chertoff, it's because she worked with Chertoff everyday as his Chief of Staff, not because she recently married someone who has her old job. Critics also point out that Myers is related to Richard Myers, outgoing Chairman of the Joint Chiefs of Staff. But as best I can tell, no one has suggested that General Myers has improperly used his influence to help his niece get the job at Homeland Security.

  What explains the opposition to the Myers nomination? Much of the problem is Michael Brown. Brown resigned as head of FEMA just three days before a Senate hearing on the Myers nomination. Brown's disastrous performance as FEMA head has drawn attention to the question of whether the President is nominating qualified people to staff important agencies, and the timing of the Myers nomination is letting that attention fall on Myers. The Myers nomination provides a particularly convenient focal point on the Right; criticizing Myers lets conservatives blow off steam about the Administration's missteps on Katrina without doing so directly. Finally, my sense is that some on the right object to Myers because they feel she is too close to Chertoff, who has not made enforcement of immigration laws a particular priority. The thinking seems to be that one way to get the Administration to devote more attention to enforcing the immigration laws is to defeat Myers and make sure she is replaced with a more independent leader.

  In the end, I don't know enough about ICE or Julie Myers to say whether she would be an effective leader of the agency. If ICE needs a real shake-up, then we should be debating that in the open, and it may be that Myers isn't the best person to change the agency. There are also legitimate questions about whether she has satisifed the statutory requirements of the position, and those questions need to be addressed. Nonetheless, my sense is that critics are being unfair to Myers by portraying her as an unqualified political crony; I don't see any reason to doubt that she is a smart and competent public servant.