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Saturday, November 12, 2005

Judge Friendly's Abortion Opinion:

Judge Raymond Randolph delivered this year's Barbara Olson lecture at the Federalist Society's National Lawyers' Convention Friday night. The speech centered on Judge Henry Friendly's opinion in a suit challenging New York's abortion prohibition in 1970 -- an opinion that Judge Friendly drafted but that was never published because New York amended its law before the case was decided. Had it been issued, it would have been the first federal court opinion on the constitutionality of a state abortion law. Judge Randolph was one of Friendly's clerks at the time, and kept a copy of the never-issued draft.

According to the draft, Judge Friendly would have upheld the law, not because he was anti-abortion, but because the law was a constitutional exercise of state power -- and that many of the inherently arbitrary policy judgments about abortion should or should not be permissible are better made by elected legislatures than a panel of federal judges. As described by Randolph, the decision anticipated many of the subsequent questions about the legitimacy of non-prohibitory abortion regulations that would follow in the wake of Roe.

Judge Randolph's speech was, to my knowledge, the first time the existence of the never-issued draft was revealed. Perhaps it will now be published somewhere for scholarly scrutiny. As described by Judge Randolph, it sounded like an interesting and insightful opinion -- just what one would have expected from Judge Friendly.

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Peter Drucker RIP

Management guru Peter Drucker died yesterday. Here is the NYT obit. Peter Schramm has more thoughts here.

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Friday, November 11, 2005

From Successful Startup to "Catholic Jonestown"?

The Ave Maria School of Law is something of a success story. Founded only five years ago in Ann Arbor, Michigan, Ave Maria's mission is to provide "an outstanding legal education in fidelity to the Catholic Faith." But it seems school founder and Chairman Tom Monaghan wants to mess with success. According to this story he wants to move the school from Michigan to a new campus in rural Florida — "Ave Maria Town" — where the school will be insulated from the outside world.

"We'll own all commercial real estate," Mr. Monaghan declared, describing his vision. "That means we will be able to control what goes on there. You won't be able to buy a Playboy or Hustler magazine in Ave Maria Town. We're going to control the cable television that comes in the area. There is not going to be any pornographic television in Ave Maria Town. If you go to the drug store and you want to buy the pill or the condoms or contraception, you won't be able to get that in Ave Maria Town."

Ann Althouse finds this vision "creepy," and I'm inclined to agree. Even accepting Monaghan's values, it's hard to understand. After all, can one really be an effective lawyer if one refuses to engage the outside world? I doubt it. To paraphrase one alumnus, what is the point of creating principled Catholic lawyers if they are not going to "engage the world" but "retreat from it"?

UPDATE: I agree with what Althouse said in the update to her post, and would like to incorporate her sentiments by reference. Also, as I note below in the comments, the "Catholic Jonestown" phrase came from the OpinionJournal story linked above. It was not my formulation. That is why it is in quotes.

Related Posts (on one page):

  1. Ave Maria Responds to WSJ:
  2. From Successful Startup to "Catholic Jonestown"?
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[Puzzleblogger Kevan Choset, November 11, 2005 at 10:05am] Trackbacks
Phrases in Common:

What do these two phrases have in common?

  • Estate Taxes

  • Grade A Eggs

What about these two?

  • Opium Poppy

  • Opinion Poll

Answer below.

(show)

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Calling Dr. Love:

Gene Simmons of Kiss claims to have slept with over 4,000 women. Now he may have to pay for his infamous sexual exploits -- or at least for talking about them so much, according to this report. One former girlfriend, Georgeann Walsh Ward, is suing Simmons for defamation because Simmons allegedly "portrayed her as an unchaste woman" in a VH1 documentary "When Kiss Ruled the World." Whereas Ward claims to have had an "exclusive, monogamous relationship" with Simmons, the documentary portrays her as a groupie. In his defense, Simmons claimed that changing social mores made a defamation claim based on allegations of unhastity obsolete, but the judge did not buy it and he denied Simmons' motion to dismiss. Stay tuned.

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Thursday, November 10, 2005

Light Blogging Ahead: I am going to be stuck at enjoying the AALS Faculty Recruitment Conference for the next two days, so little to no blogging from me until Sunday or Monday.
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Latest on Kelo and New London:

Tom Blumer has the latest, including an upset victory by two upstarts on Election Day.

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Black on Harvard Survey:

The other day, Orin linked to the Harvard student survey of "best law schools." Paul Caron has posted Professor Bernie Black's response. The SSRN rankings are available here.

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Wednesday, November 9, 2005

Government vs. Happiness?

Does an increase in the size of government come at the expense of individual happiness? Does limited government increase self-reported measures of the quality of life? A study by three Swiss economists recently posted to SSRN suggests the answer is "yes." In the authors' words: "government involvement is detrimental to individuals’ quality of life."

Here is the abstract for the paper, "The Bigger the Better? Evidence of the Effect of Government Size on Life Satisfaction around the World":

This paper empirically analyzes the question whether government involvement in the economy is conducive or detrimental to life satisfaction in a cross-section of 74 countries. This provides a test of a longstanding dispute between standard neoclassical economic theory, which predicts that government plays an unambiguously positive role for individuals' quality of life, and public choice theory, that was developed to understand why governments often choose excessive involvement and regulation, thereby harming voters' quality of life. Our results show that life satisfaction decreases with higher government spending. This negative impact of the government is stronger in countries with a leftwing median voter. It is alleviated by government effectiveness - but only in countries where the state sector is already small.
Although I like the paper's general conclusions, I am skeptical that the findings are particularly robust. Among other things, I doubt the reliability of some of the data, such as results from the World Values Survey, which purports to measure life satisfaction and social trust in various nations. Nonetheless, taken with the appropriate grain(s) of salt, it's an interesting study. It's posted on SSRN here.

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More on Georgia v. Randolph: Tom Goldstein posted an interesting comment last night in response to my earlier discussion of third-party consent in Fourth Amendment law, and I wanted to both highlight the comment and respond to it. Here is the main part of Tom's comment, with paragraph breaks added for clarity:
  Having argued Randolph today, I thought it would be worth mentioning why I think that the dichotomy [Orin] draws between reasonable expectations of privacy and the reasonableness of the search is doesn't quite hold in the context of third-party consent, even if it holds elsewhere.
  For example, Orin is quite right that even if you have an "expectation of privacy," a search pursuant to a warrant will be "reasonable." Consent, however, is different - the theory of consent searches is that the individual "voluntarily relinquishes" or even "waives" his privacy interests (though it isn't subject to the "knowing waiver" requirement applicable to trial rights), which is very close to saying that he has no "expectation of privacy." A principle rationale of these third-party cases from Frazier to Matlock to Rodriguez, in particular, is that the search is "reasonable" because the defendant has "assumed the risk" that his co-tenant would admit the police. That "assumption of the risk" rationale, if not a perfect parallel to "expectations of privacy," is its near-twin.
  If Scott Randolph had the "expectation" of privacy that his objection would be honored it is hard to say that he "assumed the risk," or at least assumed a reasonable risk. . . .
  I don't think that's right, and I wanted to explain why. As I see it, suspect consent and third-party consent are very different animals. In the case of suspect consent, the individual voluntarily gives up his privacy rights. In such cases, valid consent and waiver of a "reasonable expectation of privacy" do indeed blend together. But third-party consent cases are very different. In these cases, the defendant necessarily has a reasonable expectation of privacy in the place to be searched. The defendant isn't waiving or voluntarily relinquishing his privacy rights; he often won't even know that the search is occurring.

  The closest cousin of third-party consent in Fourth Amendment law isn't defendant consent, but rather the private search doctrine. The Fourth Amendment does not regulate private party searches at all; if a burglar breaks into your house, searches your stuff, and sends the police what he finds, it can't violate the Fourth Amendment. Third-party consent doctrine offers a modified version of this rule: it allows third parties to let the police in wherever they have "common authority." The thinking is that the third party who consents to the search is a private party who could conduct a private search himself. So long as the search is limited to the realm of the third party's common authority, the thinking goes, consent by private third parties simply recognizes that private parties have shared rights to control private spaces.

  What's the role of "assumption of the risk" analysis in this inquiry? Nothing direct, I think. "Assumption of the risk" articulates a result, not a rationale. It has no independent meaning. A defendant "assumes the risk" whenever he has no rights to object to a government search; if he has a right to object, then he has not assumed the risk. The question is always why a person must assume the risk, which in turn has to be based on some principle of when a third party can validly consent to a government search. (Some scholars have written of an "assumption of the risk doctrine" in Fourth Amendment law, but I tend to think that this is a rather unsympathetic characterization of a series of cases that most law professors consider insufficiently privacy-protective.)

  One related issue that might shed some light on these topics is understanding when a person has a reasonable expectation of privacy in their shared spaces. The basic rule is that sharing a space with someone does not in any way relinquish a reasonable expectation of privacy there. So long as that space is not open to the world, a person retains full privacy rights in their shared spaces. See, e.g., Mancusi v. DeForte, 392 U.S. 364, 369-70 (1968) (Harlan, J.) (holding that a defendant has a reasonable expectation of privacy in shared workspace).** A "reasonable expectation of privacy" is eliminated in the space only when the space is open to the world. See Maryland v. Macon, 472 U.S. 463, 469 (1985)(O'Connor, J.) (holding that an officer's entry into public areas of a store does not violate a reasonable expectation of privacy). As a result, a defendant will always have a reasonable expectation of privacy in third-party consent cases. The proper issue is when third-party consent makes a search reasonable, not whether the defendant has a "reasonable expectation of privacy" in the space searched.

  ** Privacy in government workplaces presents a very different picture; as explained in detail here, the Court has created a special REP test for government employee space, and no third-party consent doctrine applies there.

  UPDATE: Tom Goldstein and I each have additional thoughts in the comment thread.
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Suicide Bombers Hit Western Hotels in Jordan: Story here.
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Reason DC Happy Hour Next Wednesday: This from Hit & Run:
Attn, DC Reasonoids: Happy Hour, Wed., Nov. 16

Come out Wednesday, November 16, and join Reason's DC staff as we celebrate our December issue and back-to-back months of record-setting traffic at Reason Online (over 1.7 million visits in September and October).

And come meet our extra-special special guest stars for the evening:

Randy Barnett is the Austin B. Fletcher Professor of Law at Boston University and the man who argued for the good guys in Gonzales v. Raich, the wrongly decided Supreme Court case about medical marijuana.

Scott Bullock and Dana Berliner are senior attorneys at the Insitute for Justice. Scott argued the right side in Kelo v. New London, the wrongly decided Supreme Court case about eminent-domain abuse. Dana is similarly well-regarded for her legal prowess when it comes to challenging eminent-domain abuse; she is the author of Public Power, Private Gain, which documents over 10,000 cases of eminent domain abuse.

Tim Harford is the author of the great new book The Undercover Economist: Exposing Why the Rich Are Rich, the Poor Are Poor--and Why You Can Never Buy a Decent Used Car!

We'll be meeting at Mackey's at 1823 L Street NW, Washington DC around 6:30PM.
Call Me Nino: Linda Greenhouse offers a very interesting report on the first few weeks of the Roberts Court.
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Accusing a Group of Buying Legislation:

Slate runs a piece critical of the new bill preempting various lawsuits against gun manufacturers and retailers. The title of the piece is "Fire Sale," and the subtitle is "How the gun industry bought itself immunity from the rule of law." The piece ends with "Other industries will surely recognize the utility of such legislation and will seek similar treatment when they are sued. Doubtless they will make some steep campaign donations to get it. And why not, since the rule of law appears to be suddenly up for sale?"

But — unless I've missed something big — the piece never points to gun manufacturers buying anything. There's nothing said about any supposed contributions by gun manufacturers to legislators. There's nothing about any supposed bribes. The author obviously disagrees with the substance of the law, but he doesn't give any evidence that there was something corrupt about the process through which it was enacted. (By the way, see here for a brief note on the gun industry's general income and political giving — it turns out that both were low as industries go, at least as of 2000.)

Where then is the justification for the article's title, or the closing two sentences?

There is much else that I disagree with in the article. The gun industry has been exposed to novel theories of legal liability, which don't apply to other industries: If I'm hit by a 20-year-old driver who was drunk on Coors and driving a Ford Mustang, I wouldn't be able to hold the alcohol manufacturer or car manufacturer liable — even if the manufacturer sold the Coors to a liquor store in a college town (so that the manufacturer must surely have known that some fraction of its products would end up in the hands of the underaged), even if the manufacturer knew that the liquor store had been suspected in past unlawful sales (but still was allowed by the state to sell beer), and even if I can persuade the jury that car manufacturers shouldn't be able to sell really fast and powerful cars, especially to 20-year-olds, who are notoriously prone to speeding. Yet many of the gun manufacturer lawsuits were very similar to these lawsuits, and Congress was right to preempt them. Likewise, contrary to what the piece suggests, many other industries have been the subjects of industry-specific preemption laws: The Employee Retirement Income Security Act has an even broader preemption provision; Geier v. Honda Motor Co. illustrates federal preemption of certain state tort law claims against car manufacturers; there are other examples. (For more substantive points on this, see here, here, here, and here.) But for now, I thought I'd focus on the "buying" accusation.

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New Trial for Andrea Yates:

Andrea Yates, the Texas woman who was convicted of murdering her five children, is going to get a new trial. The result seems correct, because the original trial was tainted by testimony from prosecution expert Dr. Park Dietz, who claimed that Yates might have inspired by a particular episode of "Law and Order." There was no such episode.

In the retrial, I hope that Yates does not enjoy another outpouring of sympathy from misguided feminists, such as the Texas chapter of the National Organization for Women, which organized a candlelight vigil on her behalf. As I detailed in 2001, several nations--including Great Britain, Canada, Italy, and Australia--have de facto de-criminalized infanticide perpetrated by mothers. The minimal punishments (mandatory counseling and probation rather than prison time) are an extreme and deadly version of the soft bigotry of low expectations. I strongly hope that Americans resist the claims of people who want to give a free pass to murdering mothers under the theory that the stresses of parenthood are an excuse of premeditated multiple homicide.

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Kristallnacht and Arms Control:

Today is the anniversary of Kristallnacht, the infamous anti-Jewish pogram in Nazi Germany. In Nazi Firearms Law and the Disarming of the German Jews (Arizona Journal of International & Comparative Law), Stephen Halbrook details how Kristallnacht was the culmination of years of Nazi success in disarming their opponents by using the "moderate" gun licensing and registration laws which had been enacted by the Weimar Republic. During the Kristallnacht pogram, new regulations were introduced which totally forbade Jews to possess firearms, edged or pointed weapons, and blunt weapons. A magazine article by Halbrook, Registration: The Nazi Paradigm, examines Nazi gun control polices both in Germany and in conquered nations.

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Jesse Jackson has Discovered the "Constitution in Exile":

We have repeatedly marveled here at the discovery by some of a secret plot by conservatives and libertarians to reimpose the so-called "Constitution in Exile." So secret, apparently, that advocates of the theory won't even use the label in public (of course, they don't seem to use it in private either...). Jesse Jackson is the latest to have unmasked the nefarious plot:

Now, on the far right of American politics, comes a new reaction proclaiming that the real Constitution has been "in exile" since the 1930s. They want to roll back not only the privacy doctrine on which women's right to choose rests, but the Warren Court's rulings and those of the Roosevelt Court also. They would return the nation to the era of the Gilded Age, when unions were outlawed as a restraint on trade, when corporate regulation was struck down as exceeding congressional power and when states' rights were exalted.

Alito is in that line.

Courtesy of Ann Althouse, who provides a pithy assessment of Professor Jackson's legal analysis as well.

My question is more pedestrian--where in the world did Jesse Jackson latch on to the phrase "Constitution in Exile"? If it has filtered down to popular use in this manner, this is a meme that seems to have a remarkable degree of strength.

Interestingly, I see that Wikipedia actually has a page for the phrase, which discusses Orin and David's critique of the term's supposed use.

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Professor Alito: The Washington Post has an interesting story about a seminar Sam Alito taught on "Terrorism and Civil Liberties" at Seton Hall Law School.
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Tuesday, November 8, 2005

"An Introduction to the Italian Constitutional Court": Have you been waiting to read Samuel Alito's senior thesis from 1972? Well, here it is. It has an amusing introduction, as these things go, but doesn't seem to say much about Alito's views of U.S. constitutional law. Thanks to Howard B. for the link.

  UPDATE: Roger Alford takes a look at the thesis over at Opinio Juris.
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A Funny Sort of Destruction:

Joe Klein writes, in a Time magazine piece:

But it is an even better indication of how the White House reflexively dealt with unpleasant news: destroy the messenger. Last week there was more of the same, according to a prominent Republican, who told me that the White House had sent out talking points about how to attack Brent Scowcroft after Bush the Elder's National Security Adviser went public with his opposition to the war in the New Yorker magazine. "I was so disgusted that I deleted the damn e-mail before I read it," the Republican said. "But that's all this White House has now: the politics of personal destruction.

But RealClearPolitics quotes what seems to be that very e-mail, and, in the words of Mickey Kaus, the e-mail "was a completely civil and substantive attempt to rebut the substance of Scowcroft's arguments. . . . [T]he sober, almost academic email . . . ends with a vicious, inflammatory, "Let the debate proceed." If you can't send that around then you can't have a useful argument about policy. Read the e-mail for yourself, and see if "destroy the messenger" (as opposed to, say, "argue with the messenger") is a fair characterization.

(Thanks to InstaPundit for the pointer.)

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Georgia v. Randolph Arguments Touch Two Big Isssues: Lyle Denniston has a report on the oral argument today in Georgia v. Randolph, the Fourth Amendment case I blogged about recently involving third-party consent to search a home. Two foundational questions about the nature of the Fourth Amendment came up at oral argument, and I thought I would blog some thoughts about them. Neither of the issues would necessarily impact the outcome, but they each touch on recurring questions in Fourth Amendment caselaw.

  The first question is this: What is the role of property law in determining the scope of Fourth Amendment protections? Are Fourth Amendment rights "a matter of the law of property"? Or, as Justice O'Connor asked at oral argument, "Don't we have to look at social policy and the rights of privacy?" This is a fascinating question, one that I explored at length in a recent law review article: The Fourth Amenedment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004). As I explain in Section I of the article, as a descriptive matter the modern Fourth Amendment retains a surprisingly strong connection to property law principles. While some opinions of the Court have suggested that property is no longer the Fourth Amendment guide — Matlock is one of them, see fn 7 — as a practical matter its holdings tend to mirror property law with surprising regularity. In my article, I call the Court's dominant approach the "loose property-based approach"; it tracks property principles but doesn't embrace common law property technicalities.

  Of course, its widespread application in existing law doesn't mean that the loose property-based approach is normatively correct. In a follow-up response article, I speculate a bit about why the Court often constitutionalizes property law rules into Fourth Amendment doctrine despite rejecting property as a formal guide. I'm just guessing, of course, but I would guess that the main reason is predictability; property law offers a relatively clear and widely understood framework for defining rights, while privacy rights are more subjective to evaluate and assess in different situations. Whatever the cause, and whatever the normative merits of this approach, I do think it's accurate to say that principles of property law retain a lot of force in current Fourth Amendment law.

  The next question is this: What role do reasonable expectations of privacy play in third-party consent cases? The Supreme Court has defined a search as government conduct that invades an individual's "reasonable expectation of privacy," adopting Justice Harlan's test from his concurrence in Katz v. United States. Does that mean that the key question in this case is whether a reasonable person would expect the police will be unable to execute the search without a warrant?

  The answer, I think, is that while the Court is free to frame the question that way, it reflects a bit of a conceptual error about the role of the "reasonable expectation of privacy" test. Consent is an exception to the warrant requirement; it applies when everyone agrees that a search has occured. Valid consent doesn't transform a search into a non-search; rather, it turns an unreasonable search into a reasonable one. Given that, we can always assume in any consent case that the suspect has a reasonable expectation of privacy in the space searched. The question of whether third-party consent is valid hinges not on "reasonable expectations" from the Katz "reasonable expectation of privacy" test, but on the reasonableness of the search. In other words, this really isn't a Katz question; it's a consent question.

  Why does it matter? It matters because under existing caselaw, whether a person has a "reasonable expectation of privacy" in a space searched is generally distinct from whether a particular search of the space is a reasonable one. For example, whether a reasonable person would expect his co-occupant to consent, whether he would expect the police to enter the home anyway, and whether he would expect the police to obtain a warrant or have exigent circumstances isn't relevant. The proper doctrinal question is under what circumstances the third-party consent renders the search reasonable, and therefore constitutional.
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The French Educational System's Role in the Riots:

A few days before the riots began, Le Figaro's weekly France-Amerique edition published a disturbing article detailing how French public school textbooks justify terrorism. The article is a summary of the new book Élèves sous influence by Barbara Lefebvre and Éve Bonnivard, published by Editions Audibert, and which details how French high school and college textbooks treat terrorism. The article is Quand les livres scolaires "expliquent" le terrorism: Les manuels d'histoire réduiraient le djihad islamique à une contestation de l'Oncle Sam, by Cécilia Gabizon. (When schoolbooks "explain" terrorism: History textbooks reduce Islamic jihad to a dispute with Uncle Sam.)

Summarizing Élèves sous influence, Gabizon explains that textbooks say almost nothing about the role of Islamic fundamentalism or theocracies in their explanation of terrorism. Rather, terrorism is explained as "l'arme des faibles" (the weapon of the weak), used by people who cannot frontally attack the great powers: the United States and Israel. Textbooks criticize the attitude of condemning only terrorists, and not their enemies. Islamism is justified as resistance to western domination and globalization. The Taliban are described merely as favoring a "rigorous" Islamic moral order.

One textbook quotes with approval an article written in the run-up to the Iraq war, arguing for the urgency of containing American power, which imposes its will by force and is contemptuous of allies.

Also approvingly reprinted in a textbook is a student essay: Terrorism is a revolt against aggressors. As in France during the Nazi occupation, terrorism appears when a people suffer and have no other solution except explosives.

After the riots began, Interior Minister Nicolas Sarkozy denounced the rioters as "racaille," which translates as "rabble" or "scum," depending on who is doing the translation. As the French begin to ponder how their nation came to be filled with a Fifth Column of Jew-hating, French-hating criminal scum, I hope that France re-examines its educational system which, by justifying terrorism against Americans and Israelis, appears to have taught principles that were readily usable to justify terrorism against the French themselves.



UPDATE: A commenter asks how to tell the difference between the justifiable use of arms against tyranny and what Islamonazi terrorists are currently doing. As the commenter notes, I've written several articles on religious attitudes about resistance to tyranny; all of them are available on www.davekopel.org. Most of the religious philosophers whom I cite, including 12th-century Catholics and 17th-century liberal Protestants, addressed the question of "What is tyranny?" a question which is a necessary, but not sufficient, part of inquiring about whether revolution is justified in a particular circumstance. All of these philosophers were Christians, and they were especially interested in freedom for their particular Christian denominations. The philosophers' answers about tyranny are not identical, but they are entirely consistent in two applications: 1. The current French government, notwithstanding its imperfections, is not a tyranny. Among the reasons that it is not a tyranny is that it does not suppress the free exercise of religion. 2. The Taliban-style regimes which contemporary terrorists hope to impose are tyrannies, because they suppress the practice of all religions except for a hateful form of Islam. In modern application, if a government allows religious freedom for everyone, the evidence is strong (although not absolutely dispositive) that the government is not a tyranny, in part because governments which are tolerant of religious freedom are usually tolerant of many other freedoms. Conversely, people who seek a government which will kill all people of a particular race or religion (e.g., Jews) and which will suppress all religions except one particular sect almost certainly is a tyranny. Among the legitimate uses of firearms are self-defense by free governments and free citizens against tyranny and against terrorists who are attempting to impose tyranny.

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Reminder -- Volokh Conspiracy Generally Pleased Hour in D.C. on Friday, November 11:

As I noted last week, we're having a Volokh Conspiracy Bloggers' and Readers' Gathering this Friday (the 11th) at 8:30 pm, at the Town & Country bar, Mayflower Hotel, 1127 Connecticut Ave. (right near the Farragut North metro stop). Hope to see some of you there!

New First Amendment R.A.V.-Based Case on the Way to the Supreme Court?

Last week, The Ninth Circuit struck down a state law that criminalized knowingly false statements in cicitzen complaints against police officers. While the law can punish knowingly false statements generally, the court held that a law can't punish knowingly false statements on one side of an issue (here, knowingly false statements accusing police officers) but leave unpunished knowingly false statements on the other side (here, knowingly false statements by witnesses who are seeking to exonerate the police officer). The court cited R.A.V. v. City of St. Paul (1992), in which the U.S. Supreme Court struck down a ban on racist fighting words; a total ban on fighting words (i.e., epithets directed to a particular person that seem likely to trigger a fight), the R.A.V. Court held, would be constitutional, but certain kinds of discrimination within the category of fighting words -- for instance, banning racist fighting words but not other fighting words -- are unconstitutional.

Three years ago, though, the California Supreme Court upheld the same provision against the same sort of challenge. We thus not only have a split among lower courts (itself a reason for the U.S. Supreme Court to hear the case, when the split involves federal courts of appeals and state supreme courts), but a split between a state supreme court and the court of appeals in the very same circuit, about the very same law.

It's always risky to predict that the Court will grant cert in any particular case, but given this split, I'll go out on a limb and make such a prediction (unless the Ninth Circuit decides to take the case en banc and reverse it, which I doubt).

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Heroes of the Civil Rights Movement: The Smoking Gun has posted a remarkable collection of photographs recently found in a Montgomery County Alabama Sheriff's Department storage room. The photos are booking photos from individuals arrested during the civil rights movement. One photo, of the late Rosa Parks, has already become famous. The Smoking Gun has posted the whole set, about 100 photos in all. The site explains:
  In the wake of Rosa Parks's death, a mug shot of her taken during the Montgomery bus boycotts accompanied most media accounts of the civil rights pioneer's life. That 1956 photo (and a similar one of Martin Luther King, Jr.) was discovered last year by a deputy cleaning out a Montgomery County Sheriff's Department storage room. Turns out that Alabama basement contained about 100 other historic booking photos taken at the time of the Parks arrest and, five years later, during a Freedom Riders protest. On the following pages, TSG reproduces all of these images for the first time, a photographic roster of heroes that once seemed lost to history.
  The photos are pretty powerful; check them out here. Thanks to Michael Cernovich for the link.
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We're No 1!: In a new survey, Harvard Law School students ranked Harvard Law School as the #1 law school in the United States. In another survey, students nationwide voted the student body at Harvard Law School most likely to rank Harvard #1. (Okay, the second survey is fictional; the first one isn't.) Link via Paul Caron.
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Hofstra Law Review "Ideas" Section: The Hofstra Law Review has an introduced a blog-inspired new feature, Ideas. Each "Idea" is a 5-to-10 page mini-essay; the first issue has published Ideas from Dan Farber, Jonathan Macey, Ron Rotunda, and Aaron Twerski. They're all available on the web, of course. Thanks to Matt Bodie for the link.
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Law School Faculties and a Scholarship Culture: Over at The Conglomerate, Victor Fleischer examines how law school faculties can develop a culture to encourage and promote top scholarship. There are some good comments, too.
Alito's Senior Thesis Emerges: According to the Daily Princetonian, Alito's senior thesis advisor Walter Murphy found his copy of Alito's college thesis and is making it available to the press. Soon the world will finally know what Alito thought about the Italian Constitutional Court back in the early 1970s, before Alito went to law school, closing the controversial gap in the Alito paper trail. Hat tip: Mr. Bashman.
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Monday, November 7, 2005

New Law Professor Blogging Census: Over at Concurring Opinions, Daniel Solove has published a new census of law professor blogs. Here are some of the key findings:
1. Since mid-June, the number of law professor bloggers has gone up from 130 to 182. As Dan points out, that's a forty percent increase in less than five months.

2. Twenty-three percent of current lawprof bloggers are female, up slightly from twenty-one percent in June.

3. Thirty-two percent of lawprof bloggers are at institutions ranked in the latest U.S. News "top 20."
  Dan's post has all the details, including links to all of the blogs and the homepages of the bloggers.
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"Study Explains Why Three Stooges Funny To Men": A new study by a Stanford researcher suggests that men like the Three Stooges more than women because men are less analytical about humor. That Stanford fella is a real wise guy, eh? Soitenly! Nyuk nyuk nyuk.
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Bleg for Information about Two Very Bad People:

For a forthcoming academic encyclopedia on notorious people, I am writing the entires on George Hennard (perpetrator of the Luby's Cafeteria massacre in 1991) and on James Oliver Huberty (perpetrator of the 1984 massacre at a McDonald's in 1984). If you have suggestions for useful sources--particularly print-publications--on either of these evil men, please supply details in the comments.

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Effects of Parental Notification Requirement for Abortions:

The other day I mentioned Jonathan Klick's paper on the effects of mandatory waiting periods for abortions.

Given the prominence of abortion in the news, I thought readers might be interested in another paper of his, co-authored with Thomas Stratmann, on the effects of parental notification laws before minors can get an abortion on "risky sex." They use an ingenious measurement for "risky sex." Here's the Abstract for "Abortion Access and Risky Sex Among Teens: Parental Involvement Laws and Sexually Transmitted Diseases":

Laws requiring minors to seek parental consent or to notify a parent prior to obtaining an abortion raise the cost of risky sex for teenagers. Assuming choices to engage in risky sex are made rationally, parental involvement laws should lead to less risky sex among teens, either because of a reduction of sexual activity altogether or because teens will be more fastidious in the use of birth control ex ante. Using gonorrhea rates among older women to control for unobserved heterogeneity across states, our results indicate that the enactment of parental involvement laws significantly reduces risky sexual activity among teenage girls. We estimate reductions in gonorrhea rates of 20 percent for Hispanics and 12 percent for whites. While we find a relatively small reduction in rates for black girls, it is not statistically significant. We speculate that the racial heterogeneity has to do with differences in family structure across races.

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[Puzzleblogger Kevan Choset, November 7, 2005 at 3:14pm] Trackbacks
On Alito and Crosswords:

Crossword constructor David Levinson Wilk writes in the LA Times, here.

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Why Presidential Candidates Can't Run With a Cabinet Already Lined Up:

Lawprof Michael Froomkin (Discourse.Net) had a great post last year on this subject; I missed it when it first went up, but it's still interesting now:

As my friend John Berryhill points out . . .:

[S]hadow cabinets have not been used in the United States because [a candidate who promises, as part of his election campaign, to appoint someone to the Cabinet] would face up to two years in jail under 18 USC § 599:

"Whoever, being a candidate, directly or indirectly promises or pledges the appointment, or the use of his influence or support for the appointment of any person to any public or private position or employment, for the purpose of procuring support in his candidacy shall be fined under this title or imprisoned not more than one year, or both; and if the violation was willful, shall be fined under this title or imprisoned not more than two years, or both."

Incidentally, I'm not sure that this provision is constutitional — see Brown v. Hartlage (1982). (Please don't argue in the Comments that it's constitutional or unconstitutional without having read Brown; it's both the most directly on-point precedent, and it makes important policy arguments that even people who don't care much about precedent should deal with.)

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Taxpayer's Bill of Rights in Colorado:

My latest media analysis column details the hysterical and misleading media coverage of the recent election campaign to loosen Colorado's state constitutional limits on government spending.

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Blogging Break:

I have several paperes to complete and present in the next month or so, I'll be traveling to Israel in December, and little Natalie is a very time consuming hobby. So, barring breaking news extremely near and dear to my interests, I'll be blogging very little if at all between now and Christmas.

Balkin on Originalism:

Check out Jack Balkin's very interesting post on the implausibility of the Supreme Court adopting anything remotely resembling consistent originalism with regard to federalism (or anything else) any time in the near future. I agree with much of what Jack says, with two caveats: (1) if the Republican Party had shown a continued interest in federalism, I think Raich might have come out the other way. It's no coincidence, in my mind, that Lopez was decided just after the "Republican Revolution" of 1994, and no coincidence that Raich was decided when the Republican Party was no longer paying lip service to a limited federal government; (2) dominant political coalitions often win the Court for one point of view, only to find that this victory coincidentally came with some additional baggage. As Kevin McMahon has shown, the New Deal coalition's goal with regard to the Supreme Court was to eliminate virtually all restrictions on economic regulation at the federal, state, and local level. FDR achieved this by mainly appointing Justices from the demographic group least likely to object to regulation: northeastern liberals. FDR and many of his supporters had no particular interest in civil rights, but it turns out that northeastern liberals coincidentally also happened to be the demographic most sympathetic to civil rights. [Ilya Somin and I have shown that, along the same lines the Northern Republicans appointed by T.R. and Taft turned out to be unexpectedly at least mildly sympathetic to civil rights in the 1910s.] Similarly, the heart of the conservative coalition right now isn't especially interested in limiting federal power. But it's also true that the Justices most committed to the main conservative agenda are also interested in federalism: Scalia (at least until Raich), Thomas, and Rehnquist have been the most consistent votes in favor of the conservative agenda, but also for limiting federal power. O'Connor and Kennedy were less consistent on both matrices. If you appoint very conservative judges who satisfy core Republican constituencies, these Justices are also more likely to vote for a more originalist view of federal power, not least because the impractical pointy-headed intellectual legal wing of the party almost universally believes that at least some aspects of the New Deal expansion of federal power were illegitimate, and this filters into the worldview of the Thomases, Alitos, et al. of the world. [And an additional caveat: unlike Jack, I'm not persuaded that Big Business, as a rule, favors Republicans more than Democrats; the core of the Republican Party seems to me to be evangelical Christians, military folk, and the Chamber of Commerce.]

But am I optimistic that the "federalism revolution" will be revived? No, at least not until the Republican Party signifies that it would provide some political support/cover for such a move.

Related Posts (on one page):

  1. Balkin on Originalism:
  2. Originalism in Crisis:
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Teacher's Edition:

Finally got the Teacher's Edition for my The First Amendment and Related Statutes (2nd ed. 2005) out the door; glad to have that done. Most law school textbooks come with a teacher's manual, in which the author gives instructors some tips on teaching each section and each case, plus discussions of each problem (if the casebook includes problems, as mine does). Among other things, most teachers adopt a textbook when they start teaching a subject, and rarely switch after that -- this means that many, though far from all, of my adopters are people who are teaching the subject for the first time; and while they know a lot about most parts of the subject matter, there will inevitably be some sections that they just hadn't confronted before in their scholarship or practice.

But with the new edition of the casebook, I decided to do something that I hope will be more helpful to my adopters. The new Teacher's Edition is built on the principle that the instructor will be reading the cases in any event, and will have the text in class in any event: The comments, suggested questions, and discussions of problems should therefore be right there in the text, rather than in a separate teacher’s manual that the teacher would have to read before or after he reads the cases. The Teacher's Edition (which the instructors get but the students don't, just as with the teacher's manual) therefore has five features that I hope will be especially useful:

1. Comments and questions about the cases are noted in the right margin (using Word's Comment feature). That way, as the teacher is reading the cases in preparation for class, or looking at the case text during class, the notes will be right there.

2. Key passages that are especially likely to arise in class discussions are highlighted, so the teacher can easily find them when he or a student brings them up. The highlighting is not meant to identify the most important sections -- the teacher will know which those are. But it should help the instructor find those sections when he wants to mention them to the students (“The Court does say in the third paragraph of p. 123 that ...”) or if the students ask you in class about them (“Didn’t the dissent say somewhere that ...?”).

3. The full discussion of each problem is included on separate pages right alongside the problem. That way, the teacher doesn’t have to leaf through a separate Teacher’s Manual to find the problem, and he doesn’t have to keep both the caseboook and the manual open to the proper page: The discussion is right there in the Teacher’s Edition, at most a few pages away from the problem; the discussion of the problems on p. 7, for instance, is right there between p. 6 and p. 7.

4. The subheadings from the full discussion of each problem are noted in the right margin near the problem itself, as a brief outline of the discussion. This may make it easier to bring class back on track when students digress, and to make sure that some important issues aren’t missed in the heat of battle.

5. Despite all this, the teacher’s edition is paginated just like the textbook, so the teacher and the students can understand each other when they talk about “the second to last paragraph on p. 437.” (I did this by including all new material either as marginal comments that don't throw off the pagination, or as entirely separate pages that I then merged into the PDF file using Adobe Acrobat.)

I suspect that others have tried this in other disciplines, but I think this is pretty original for law casebooks. Perhaps if this works out, others will decide to do something similar for their works.

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Why You Might Not Want a Judge Who Already Ruled Against You to Recuse Himself:

The Supreme Court just agreed to hear Hamdan v. Rumsfeld, which involves a challenge to the military commissions set up to try enemy combatants; the issues are whether the commissions are duly authorized by statute or possibly by the President's inherent powers, whether the Geneva Convention bars certain procedures used by those commissions, and whether the Geneva Convention is even judicially enforceable by courts (on the theory that it's self-executing). The D.C. Circuit upheld the commissions (correctly, in my view), in an opinion that then-Judge John Roberts joined. Chief Justice Roberts has therefore recused himself from considering the case.

But here's an interesting tactical twist: Today's AP report contains the following line — "Hamdan's attorneys may ask Roberts to participate in the case to avoid a 4-4 tie." Why would Hamdan's lawyers want to do such a thing?

If Chief Justice Roberts recuses himself, and the Court ties 4-4, that will affirm the lower court decision. So if you're Hamdan's lawyer, you'd reason: If Roberts would have voted against us, and this produced a 5-4 result for the government, Roberts' recusal wouldn't help us, since we'd still lose 4-4. But if Roberts would have voted for us, at least in part, and this produced a 5-4 result for us, Roberts' recusal would hurt us. The chances of Roberts voting for us, given his vote below, are small, but not zero — the lower court decision rested on certain Supreme Court precedents that bound Judge Roberts, but perhaps Chief Justice Roberts might consider reversing or modifying some of those precedents. Or maybe we can talk him around with one more argument; or perhaps his new colleagues can talk him around.

Yet here's the downside: If Roberts isn't recused, he can talk around some of his colleagues. The Justices' attitudes aren't independent factors that simply need to be aggregated; each Justice can try to persuade the others, through questions at oral arguments, discussion at their end-of-the-week conference during which they vote (a very brief discussion, but one that might still affect people), and through the exchange of opinion drafts and related memos. If Roberts is recused, then he's supposed to not participate in these discussions, and not just not vote (and I'm pretty sure that this is in fact the practice, not just the theory). But if Roberts isn't recused, then he will participate, and maybe turn a 5-3 vote in favor of Hamdan into a 5-4 vote in favor of the government. And Roberts' status as Chief may be especially influential here, not just because he'd be able to assign the majority opinion, but also because Justices are probably a little more likely to accommodate the wishes of the Chief.

There's also one other downside, albeit hypothetical: If Justice O'Connor's replacement is confirmed after the argument in Hamdan but before the decision is handed down, then a Roberts vote for the government wouldn't mean a 5-4 pro-government decision as opposed to a 4-4 pro-government decision — it might mean a 4-4 pro-government decision as opposed to a 4-3 pro-Hamdan decision. This won't happen, of course, if Alito sails through in January, as seems likely. But who knows what the Senate will do? If I were Hamdan's lawyer, I'd be figuring out the latest time I can file a motion asking Roberts not to recuse himself (there's an answer to this, but I just don't know it), since I'd want to — if possible — wait until I see whether Alito (or someone else) is confirmed before the Hamdan oral argument.

Finally, one other twist: From the perspective of people who oppose the military commissions, a 5-4 Supreme Court decision to uphold the commissions is worse than a 4-4 vote that has the result of upholding the commissions. The former sets a binding precedent, and puts the persuasive weight of the Court's majority behind the commissions; the latter leaves the issue up in the air, at least for now.

But Hamdan's lawyers, even if they personally care mostly about the legal question, must focus on the welfare of Hamdan and Hamdan alone (at least unless they've somehow expressly agreed with Hamdan otherwise, though I'm not even sure to what extent they can do that). So they need to take the course that maximizes Hamdan's chances of winning, even if increasing his personal chances of winning by 1% hurts the broader anti-commission cause by considerably more.

Finally, a warning: These are just a few quick ruminations of a Court-watcher who isn't a Court litigator; I think they're right, but I'd love to be corrected if I'm mistaken.

UPDATE: Reader Dan Schmutter points out: "One other pro-recusal thought. As a member of the majority below, Roberts may be more persuasive with his colleagues having more familiarity with the record below than another member of the court simply reading the briefs for the first time."

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Biden Says Filibuster on Alito Unlikely:

The Washington Times reports.

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Supreme Court Grants Cert in Hamdan: In a somewhat surprising move, the Supreme Court has granted certiorari in the Hamdan case that concerns the legality of the Guantanamo military tribunals. The lower court opinion is here. Here are the Questions Presented in the cert petition:
  1. Whether the military commission established by the President to try petitioner and others similarly situated for alleged war crimes in the "war on terror" is duly authorized under Congress's Authorization for the Use of Military Force (AUMF), Pub. L. No. 10740, 115 Stat. 224; the Uniform Code of Military Justice (UCMJ); or the inherent powers of the President?

  2. Whether petitioner and others similarly situated can obtain judicial enforcement from an Article III court of rights protected under the 1949 Geneva Convention in an action for a writ of habeas corpus challenging the legality of their detention by the Executive branch?
  This is an important development; Hamdan will now be "the big case" of the new Supreme Court term. If I had to guess, I would guess that the Court will reverse.

  UPDATE: According to Lyle Denniston's post over at SCOTUSblog, Chief Justice Roberts "told the Senate Judiciary Committee when he was nominated that he would recuse himself from cases in which he had participated as a judge on the D.C. Circuit." Assuming that Justices Ginsburg, Breyer, Stevens, and Souter would like to reverse the outcome in Hamdan, the recusal of Roberts (a likely vote for the government) makes that outcome more likely.
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On-Line Academic Study:

Niclas Berggren, an Economics Professor in Sweden, is doing an on-line academic study and is seeking international participation. If you have a few minutes, I hope you will participate. The link and password info is provided in the message below.

I am writing you to ask for your help in a scientific study I'm doing with Henrik Jordahl from Uppsala University and Panu Poutvaara from the University of Helsinki. We are studying differences in the perception of beauty and some related traits, and for this purpose we aim to recruit respondents from different countries. http://www.beautystudy.se/

Username: beautystudy

Password: qwerty

Please write VOLOKH as your city when replying to the survey, to indicate that you were invited at this site.

If you would like to receive an executive summary of our results, please write your email address at the end of the study and tick the appropriate box. The e-mail addresses are stored separately from replies.

Deadline for participation in the study is 30 November.

Please do not hesitate to contact me with any further questions.

Many thanks for your time and help.

Best regards, Niclas Berggren

Please feel free to pass on the info to anyone else you know.

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Freakonomics of Voting:

Last weekend I finally read Freakonomics. If you haven't read it yet, it really is just as good as it has been made out to be. And it can be read in a weekend.

There is also a lot of great stuff recently on the Freakonomics blog. Just in time for Election Day tomorrow (check your local stations) they have a post on why people vote and in a similar electoral vein, Levitt concludes that according to his research, Richard Daley actually did not steal the 1960 Presidential election for JFK.

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Sunday, November 6, 2005

Drezner's Good Day:

Things are looking up for Professor Drezner, blog and all. Congratulations Dan!

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The Young Samuel Alito: The Monday New York Times has a quite flattering profile of Sam Alito.
Pro-Alito Blog: The Committee for Justice has started a blog to support the Alito nomination. (Gotta love that name, Committee for Justice; only in Washington would a group named "Committee for Justice" disagree 100% of the time with a group called "People For the American Way.")
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AALS Conference Advice: Over at Madisonian.net, Mike Madison has some good advice for law professor wannabes who will be attending the Assocation of American Law Schools Faculty Recuitment Conference (aka "the meat market") this week.
The Politics of Psychology:

Dr. Helen is upset that her profession -- psychology -- is in thrall to liberal orthodoxy.

I read recently that 93% of all psychologists are left leaning; that explains alot about my profession. I wish that in the 1980's when I started studying psychology that I had been given the list of rules and regulations outlining the political views I was being signed up for, without my consent. But at that time, I wasn't aware of the "rules"--maybe they were different then, or maybe I just didn't get the memo. If I had, I would have just walked away.

As another blogger might say, read the whole thing. There's some interesting stuff in the comments section too.

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Georgia v. Randolph: On Tuesday morning, the Supreme Court will hear argument in Georgia v. Randolph, No. 04-1067, a Fourth Amendment case involving third-party consent to search a home. The issue in the case is whether the police can rely on one person's consent to search a home if a co-occupant is present and objects to the search. The State-Petitioner's brief is here; Defendant-Respondent's brief is here; the United States brief as friend of the court is here.

  The George Supreme Court held that consent is impermissible when a co-occupant is present and objects, but I'm pretty confident the Supreme Court is going to reverse. It has long been settled law that anyone with common authority over a space can consent to a police search of the space. See United States v. Matlock, 415 U.S. 164 (1974). The basic idea is that any one who controls property can do what they want with it, and that includes letting the police come inside and take a look. In its decision below, the Georgia Supreme Court tried to carve out a special exception to this rule when a co-occupant is present and objects. As the SG's unusually good brief explains, however, this is a pretty tough rule to administer for practical reasons. How much of an objection is enough? When is a co-occupant present? And won't the police just wait until the nonconsenting party leaves, and then ask again?

  Tom Goldstein's brief for the defendant tries to make the case that the exception is needed to protect privacy in the home, citing lots of Kennedy and Scalia opinions along the way. I doubt this argument will work. The problem, I think, is that the source of the problems Goldstein identifies is United States v. Matlock itself. As a result, the brief presents more of a conceptual challenge to Matlock as a whole than to its application in the specific case of non-consenting co-occupants. Matlock has been interpreted broadly for decades, however, and the Justices haven't shown any inclination to overrule or limit it significantly. They might change their minds, but I think it's more likely that they'll reaffirm the broad reading of Matlock and reverse the decision of the Georgia Supreme Court.
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Sunday Song Lyric: I have not posted many Sunday Song Lyrics of late, but having recently seen another Nine Inch Nails concert — quite a different experience than that Neil Diamond show I saw earlier in the year — I cannot help myself.

Among the better songs on the new album, With Teeth, is "Right Where It Belongs." Trent Reznor may have intended the song to be a political statement — it seemed that way at the show — but it's certainly open to other interpretations as well. In any event, here are the lyrics:

See the animal in his cage that you built
Are you sure what side you're on?
Better not look him too closely in the eye
Are you sure what side of the glass you are on?
See the safety of the life you have built
Everything where it belongs
Feel the hollowness inside of your heart
And it's all
Right where it belongs

What if everything around you
Isn't quite as it seems?
What if all the world you think you know
Is an elaborate dream?
And if you look at your reflection
Is it all you want it to be?
What if you could look right through the cracks?
Would you find yourself
Find yourself afraid to see?

What if all the world's inside of your head
Just creations of your own?
Your devils and your gods
All the living and the dead
And you're really all alone?
You can live in this illusion
You can choose to believe
You keep looking but you can't find the woods
While you're hiding in the trees

What if everything around you
Isn't quite as it seems?
What if all the world you used to know
Is an elaborate dream?
And if you look at your reflection
Is it all you want it to be?
What if you could look right through the cracks
Would you find yourself
Find yourself afraid to see?

Post-Script: Longtime readers may recall that I posted another Nine Inch Nails song as a Sunday Song Lyric in March 2004.
Gitmo Still No "Gulag":

Back in June I endorsed former Soviet dissident Pavel Litvonov's argument that there is no basis for comparing Guantanamo or other U.S. detention facilities with the Soviet gulag. Since then there have been some distrubing allegations about how the CIA may be treating some captured Al Qaeda figures. For instance, one reader called my attention to this story alleging that the CIA maintains a network of "secret prisons" at which some captives may be treated in an inhumane matter, if not actually tortured. This is serious stuff — stuff that merits Congressional investigation if not outright condemnation.

As I have noted before, I believe Congressional action in this area is long overdue. Thus, I hope that the Senate stands firm and, at the very least, forces the Administration to clarify what sort of conduct we will tolerate, and why. I do not know enough about the practicalities — and have not thought enough about the moral questions — to have a firm view about what should be tolerated under what circumstances (e.g. when, if ever, is [waterboarding] an acceptable interrogation technique), but I am quite sure that the nation is not well served by giving the Executive Branch a free hand.

Returning to the issue at hand, I would like to underline my ultimate position: Not every mass murder is comparable to the Holocaust. By the same token, not every secret detention is comparable to the Gulag. In my view, the overuse of such comparisons undermines our ability to recognize the varying magnitudes of various evils. Such hyperbole deadens the sensitivity to moral distinctions in public discourse. Again, I am not excusing the conduct of our government. Some of the allegations are quite serious and, if true, merit condemnation, but that does not make Gitmo and other U.S. facilities equivalent to the Soviet Gulag.

NOTE: I accidentally omitted a word when this was first posted. The correction is in brackets above.

UPDATE: Kieran Healy thinks Amnesty International's original report was simply "a strategic effort to draw public attention to a real scandal" and that my concern about Amnesty's hyperbole is evidence of a "withered moral sensibility." Apparently I should not comment on such matters or quote articles on the subject unless I am prepared to condemn all inhumane or unpleasant treatment of detainees in all circumstances or become an expert on the nuances such questions. (Uh oh. I suggested there may be nuances here — my moral sensibility must be even more withered than Healy thought!)

For the record, this particular post was occasioned by a VC reader who wanted to know whether subsequent news reports had caused me to reconsider the gulag comparison since my initial post quoting a Washington Post article by a Gulag survivor. Perhaps Healy is correct that I should have spent more time during the intervening weeks figuring out precisely when coercive interrogation techniques may or may not be justified before responding to a reader. Or perhaps, like Healy, I felt my time was better spent working and blogging on other less weighty matters of professional or personal interest.

FINAL UPDATE: Just a few quick points and clarifications in response to comments below and this post by Marty Lederman. First, I have not defended the adminsitration on this issue, nor have I defended the use of torture. If the worst reports are accurate -- and these secret sites are in fact "torture centers" -- our government's actions should be condemned. I don't believe I ever suggested otherwise.

In response to Mr. Lederman, I will certainly admit that it is "more than a tad unseemly" that we are using Soviet-era detention facilities, and I have already endorsed Congressional efforts to define and limit executive discretion in this area. But I also think it is disingenous to claim my initial post was prompted by a "stray remark" from Amnesty International. After the report was issued, and other equivalent statements were made, Amnesty solicited a noted Gulag survivor to defend the charge. In other words, not "pretty much everyone is happy to grant" that the Gitmo-Gulag comparison is overdone, as Mr. Healy says below. To the contrary, some want to defend it. And, one last time, I did not seek to "pre-emptively condemn any gulag similies." Rather, as I noted in the update, I was responding publicly to a question from a reader.

For those who want more on this subject, read the items linked in Lederman's post, and read Mark Bowden's provocative and fairly persuasive op-ed in today's WSJ (link requires subscription). I'm done.

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The Judge Alito Vanguard Recusal Controversy:

Lawprof David McGowan opines on this at the Legal Ethics Forum. The post is long (because the issue and the relevant law are complex) and interesting, but here's the bottom line:

Did Judge Alito violate any rules by sitting on the case? Deborah Rhode opined on NPR that Alito’s sitting on the case was “a violation of judicial ethics 101.” Steve Lubet was more forgiving, describing it as a mistake justifying an “oops” response, but not an episode calling Alito’s ethics into question. Steve Gillers pretty much agreed . . . .

I think Professors Lubet and Gillers are right, and that Professor Rhode is not. One can approach this question in a pragmatic, purposive manner, in which case it is clear that Judge Alito did nothing seriously wrong, and that this episode provides no basis to question his ethics, or in a strictly literal, formalist, manner, in which case a case might be made that he violated rules against conflicts by hearing the case the first time but then properly recused himself when a complaint was made. That case has not yet been established, however, though the reports cited above imply that it has.

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Many Thanks to Dale Carpenter,

for his guest-blogging last week!

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Cross v. Lott on Alito:

A few days ago I posted on "Alito By the Numbers" and linked to a news column by John Lott. For those who may not have followed the subsequent Comments but may be interested, Frank and John have a vigorous dialogue in the Comments to that post. Check it out here if you are interested.

I have added links to the underlying Choi and Gulati papers as an Update to the original post.

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Surveillance of Cell Site Information: National Public Radio has a good story on the legal rules that regulate government surveillance of cell-site information, the location information sent by cell phones to allow providers to connect cell phone calls. I make a very brief appearance at the 2:45 mark. I've been meaning to blog about this issue, but it presents some pretty complicated legal questions; that translates into a time-consuming post to write. The short version is that I think a warrant is required under the statutory surveillance laws, even though I don't think a warrant is needed under the Fourth Amendment. More soon, I hope.
National Security Letters: The Washington Post has an important story on overuse of the FBI's authority to issue National Security Letters (NSLs) in terrorism investigations. The author's personal views are pretty clear, and some of the pieces don't quite fit together — for example, I'm not entirely sure of the connection between NSLs and databases. But putting aside the occasional op-ed-like quality of the piece, it has some important new information about how changing FBI guidelines may have considerably expanded the use of NSLs. Of particular interest: "The FBI now issues more than 30,000 national security letters a year, according to government sources, a hundredfold increase over historic norms."
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