Eugene McCarthy Passes Away at 89:
The NYT's obituary is here.
Saturday, December 10, 2005
Easterbrook Rejects Peer-to-Peer Fair Use Defense:
In an opinion released yesterday authored by Judge Frank Easterbrook, the Seventh Circuit rejected the fair use defense asserted by a defendant who had used KaZaA to download copyrighted music files. The entire opinion in BMG Music v. Gonzalez is worth reading, but here is an excerpt:
Copyright law lets authors make their own decisions about how best to promote their works; copiers such as [the defendant] cannot ask courts (and juries) to second-guess the market and call wholesale copying "fair use" if they think that authors err in understanding their own economic interests or that Congress erred in granting authors the rights in the copyright statute. Nor can she defend by observing that other persons were greater offenders; [the defendant]'s theme that she obtained "only 30" (or "only 1,300") copyrighted songs is no more relevant than a thief’s contention that he shoplifted "only 30" compact discs, planning to listen to them at home and pay later for any he liked.Thanks to Eric Goldman for the link.
Friday, December 9, 2005
Well, That's One Way of Trying to Influence a Court in Your Favor:
The plaintiff in a Third Circuit case decided yesterday filed the case as Awala, and the People of the Philadelphia Religious Community Center, et al. v. People Who Want to Restrict Our First Amendment Rights, Primarily to Intimidate Rather Than Religious Purposes Maintenance on Courthouse Grounds of Illuminated Granite Monolith On Which "Ten Commandments" Were Inscribed Together With Other Symbols, et al.
Despite this creative styling, "Gbeke Michael Awala, who is currently incarcerated at the Federal Detention Center in Philadelphia," nonetheless lost. Among other things, the court pointed out, "Awala's pleading in the District Court, which he titled, 'Motion in opposition towards the defendants habitual offenses involving individual rights restriction against establishment of religion despite fact that religious symbol were admissible,' is difficult to comprehend, much less classify." If you want a sense of what Mr. Awala was after, here's the court's summary:
A recurring theme in Awala's pleading is his request that the District Court overturn the United States Supreme Court's decision in McCreary County, Ky. v. ACLU, which held that two courthouse displays of the Ten Commandments violated the Establishment Clause of the First Amendment. Awala seeks, among other things, to have all of the religious monuments which have been removed from courthouses "nationwide" replaced. The District Court clearly does not have the authority to overturn any decision by the United States Supreme Court. . . .
UPDATE: Thanks to commenter Ubertrout for a link to the opinion, which I've incorporated above.
DOJ OK With Taking Padilla Decision Off the Books:
Reuters has the scoop.
Legal History Question:
Evey first-year law student is confused by the use of the phrase "civil law" to mean two completely different things. There's civil law as opposed to common law, and then there is civil law as opposed to criminal law. I wonder: How did it happen that the same phrase came to be used to mean two different things?
I understand that the use of "civil law" as opposed to common law comes from the Romans. The Roman empire set forth its law in compliations collectively handed down as the Corpus Juris Civilis, which I gather translates to something like "the body of law of the citizens," and so legal systems based on Roman law are "civil law" systems. Or so a little googling tells me. But how did we start to use "civil" to mean "non-criminal"? If there are any legal historians out there, latin geeks, or anyone else who might know the answer, please fill us in.
I understand that the use of "civil law" as opposed to common law comes from the Romans. The Roman empire set forth its law in compliations collectively handed down as the Corpus Juris Civilis, which I gather translates to something like "the body of law of the citizens," and so legal systems based on Roman law are "civil law" systems. Or so a little googling tells me. But how did we start to use "civil" to mean "non-criminal"? If there are any legal historians out there, latin geeks, or anyone else who might know the answer, please fill us in.
Torture and the Al-Qaeda/Iraq Connection:
The New York Times reports:
The Bush administration based a crucial prewar assertion about ties between Iraq and Al Qaeda on detailed statements made by a prisoner while in Egyptian custody who later said he had fabricated them to escape harsh treatment, according to current and former government officials.
The officials said the captive, Ibn al-Shaykh al-Libi, provided his most specific and elaborate accounts about ties between Iraq and Al Qaeda only after he was secretly handed over to Egypt by the United States in January 2002, in a process known as rendition.
The new disclosure provides the first public evidence that bad intelligence on Iraq may have resulted partly from the administration's heavy reliance on third countries to carry out interrogations of Qaeda members and others detained as part of American counterterrorism efforts. The Bush administration used Mr. Libi's accounts as the basis for its prewar claims, now discredited, that ties between Iraq and Al Qaeda included training in explosives and chemical weapons.
Privacy and Guns:
I always like to look for nonobvious interactions between legal fields that interest me, such as copyright and guns (yes, there are some, related to legal liability for distribution of dual-use products). In this post, I want to ask about the intersection of privacy law and firearms regulation policy:
Say that state or federal law requires people to register their gun ownership (as some states do) or register their sales or purchases of guns (as federal law does for transactions involving a licensed gun dealer, though the records are kept by the dealer rather than in a central government database). Should these records be available to the public?
Say that state law requires people to get a license to carry a concealed gun (or for that matter to carry a gun at all). Should these records be available to the public, as they are in some states?
Some bans on concealed carry of guns are defended on the grounds that people remain free to carry guns to protect themselves -- they just have to do so openly, in a holster. (This was a common argument in the 1800s, when concealed carry bans were first instituted, and remains both (1) a sometimes-heard policy argument and (2) a constitutional argument under those state constitutions that secure a right to keep and bear guns in self-defense.) And indeed you can defend yourself pretty much as well with an openly carried gun as with a concealed carry gun (there are pluses and minuses to open carry, but on balance the purely functional difference isn't that vast) -- but only if you're willing to let everyone around you know that you're armed, something that many people are reluctant to do. Is the requirement of open carry an impermissible burden on people's privacy?
I'm particularly interested in the views of those people who are sympathetic to gun controls -- and especially in limits on concealed carry -- but also see themselves as supporters of privacy.
Related Posts (on one page):
- Privacy and Guns:
- Privacy and Guns:
Which Government Records Should Be Open to the Public?
Lawprof Daniel Solove argues that records related to divorce proceedings (presumably not the fact of the divorce itself, but the facts discovered or alleged during the proceedings) should generally be kept private, even when the divorce involves a politician, such as former Illinois senatorial candidate Jack Ryan.
I strongly support people's right to speak about others, even when such speech is said to infringe others' privacy; but it doesn't follow that the government should always make such speech easier by publicizing information that's in its hands -- often information gotten using the government's coercive power. The question, to which I don't have a ready answer, is: Which information should the government release? A few items to get the discussion going:
Records of criminal trials, including information that was gotten from witnesses (such as the witness's medical history, sexual history, wealth, religious or political beliefs, and the like), as well as information about defendants' s past criminal convictions.
Records of criminal or quasi-criminal trials involving offenders who were under 18 at the time of the crime.
Records of civil proceedings, including normal civil litigation, divorce, bankruptcy, and the like.
Income tax records, which have historically been kept highly confidential.
Property tax records, which have historically been public records.
Gun registration records and concealed carry license records; the latter, I'm told, are public records in at least some states.
Grades and disciplinary records of students at government-run schools and universities; I believe federal law generally requires that these be kept confidential.
Salary records and disciplinary records of government employees; the federal government and many state governments makes the salary information publicly available, though generally not easy to get.
Should the government keep these confidential? Should it make them publicly available? Should it make them publicly available but hard to get, for instance by keeping them in storage and not putting them on the Internet?
Judge Kozinski at Cato Unbound Responds to James Buchanan's Three Proposed Constitutional Amendments:
Dr. Buchanan's original proposals are here; Judge Kozinski's response is here; lawprof Akhil Amar's response to Dr. Buchanan is here. Here's Judge Kozinski's introduction
Dr. Buchanan advances a vision of government -- especially the federal government -- that I find attractive. There is, alas, a lingering nostalgia for the vision of the minimalist state as a purer form of government, one that advances everyone’s economic well-being while maximizing personal freedom. While I have a romantic attachment to this vision, I’m far from convinced that it would achieve the goals set for it -- that we’d be living in a better world today if only we repudiated the New Deal, or had never adopted it in the first place. Whenever I try to imagine what such a world would look like, I look at the world we do live in and recognize that we don’t have it so bad at all. We have the world’s strongest economy by far; we are the only superpower, having managed to bury the Evil Empire; and we have more freedom than any other people anytime in history. We must be doing something right.
One thing I’m pretty sure of, though, is that Dr. Buchanan’s vision is not shared by most of the American public. While nearly everyone has some beef with government at its many levels, there are very few who would, had they the power, fundamentally change the relationship between the government and the governed in the ways Dr. Buchanan envisions. Thus, unless we assume that his three proposed constitutional amendments are to be imposed by some power outside the American democratic process -- by a Philosopher King, as it were -- we have to imagine a very different world, and a very different popular attitude toward what the government is expected to accomplish. In other words, an America where it were possible to gain the super-majorities needed to pass Dr. Buchanan’s proposed constitutional amendments would, in effect, be an America populated by 200+ million committed libertarians. In that world, the kind of constitutional amendments Dr. Buchanan proposes would be politically feasible, but probably unnecessary; people who would adopt those amendments would also be people who wouldn’t really need them, because their view of what government is supposed to do would be so much narrower than is the norm today. Or, to put it differently, a body politic that needs Dr. Buchanan’s amendments is a body politic that won’t adopt them in the first place.
But it’s not my purpose to quibble with the premises of Dr. Buchanan’s proposals. I will assume, therefore, that we are politically of a mind with Dr. Buchanan in wishing to achieve the minimalist state, or something close to it, and we have been commissioned to select the three best constitutional amendments to constrain future generations that may not be as clear-sighted as we are. The question then is: Are the amendments, as proposed, workable? Or are there better ways of achieving the same ends? I will discuss each proposal briefly, and then offer my own counter-proposal. . . .
I think I'm largely with Judge Kozinski on this one.
Peter Schuck on Solomon:
At the risk of making this the all-Solomon all-the-time blog, in case you didn't see it, Yale's Peter Schuck has an interesting column today in the NY Times on the Solomon Amendment question, "Fighting on the Wrong Front":
But in their opposition to the Solomon Amendment, the universities are not only on shaky legal ground, as confirmed by the skeptical questioning they faced from the justices at oral argument, but intellectually inconsistent.
In the affirmative action cases involving university admissions that the Supreme Court decided in 2003, the universities invoked their educational expertise to defend a definition of applicant merit that disadvantaged whites and Asians; now they argue that the military may not invoke its warfighting expertise to define merit in a way that disadvantages gays.
The universities' position on government threats to cut off financing to enforce public policies is also inconsistent. A quarter century ago, many universities argued that Bob Jones University's tax exempt status and access to federal loans should be revoked because its racial policies violated civil rights law. Now the universities argue that their own funding should not be revoked for violating another federal policy.
***
Universities exhibit little intellectual or moral subtlety when they treat all who hold that view as a single species of invidious homophobes - regardless of whether their view proceeds from the kind of blind hatred that murdered Matthew Shepard or from ethical traditions or prudential concerns shared by many thoughtful, morally scrupulous people.
Universities should allow equal, unfettered access to their students by any employer whose policy with regard to sexual orientation is legal, so long as that policy is disclosed. The issue is not what the universities think about "don't ask, don't tell" - they have made that clear - but how their students view it.
A university's moral and pedagogical duty to its students is to cultivate their capacity for independent thinking, explain its own view (if it has one) and then get out of the way. The students' duty is to listen carefully - and then make their own decisions.
More on the HLS Solomon Argument:
A Harvard Law Student cc'ed me on a letter submitted to the Harvard Crimson regarding the story referenced earlier today on FAIR v. Rumsfeld.
To the Editor:
Re "Harvard Profs' Brief Could Still Sway Court" (Dec. 8, 2005):
Rather than putting forth a Constitutional argument against the Solomon Amendment, as FAIR did at oral arguments on December 6th, a group of Harvard Law professors would instead have the Supreme Court decide the case on statutory grounds. In their brief, they claim that "[m]ilitary recruiters are subject to exactly the same terms and conditions of access as every other employer. When other recruiters have failed to abide by these tenets, they have been excluded." In other words, they claim that the military is given equal access as required under the Solomon Amendment — but the military discriminates against gays, and therefore its access is revoked, as it would be for any other employer that discriminates.
This would be an interesting legal argument — if it were not demonstrably false.
The Law School's non-discrimination policy simply states: "Harvard Law School does not discriminate against any person on the basis of race, color, creed, national or ethnic origin, age, gender, sexual orientation, marital or parental status, disability, source of income, military status or status as a Vietnam era or disabled veteran in admission to, access to, treatment in, or employment in its programs and activities. All employers using the facilities and services of the Office of Career Services must comply with this policy."
Yet in direct violation of this policy, the Law School's Office of Career Services forwards job opportunities that are available only to certain students on the basis of race, color, or ethnic origin. In just last week's news update from the Office of Career Services, no fewer than four announcements violate the non-discrimination policy. One diversity fellowship requires that " [t]he individual [selected] must be a member of a racial or ethnic minority group." Another fellowship restricts eligibility to "persons who are... African American, Latino, Native American, Alaskan native, Asian or Pacific Islander."
The non-discrimination policy contains no exception that would permit discriminatory affirmative action practices. Accordingly, the military's discrimination is held to a tougher standard than any other employer, or so it seems. Under the rubric of "equal access," military discrimination cannot be held to a higher standard than, say, racial discrimination under the non-discrimination policy. The Law School cannot have its cake and eat it too, and so it destroys the arguments of its own academics.
Elliott Marc Davis, HLS'07
The larger point here seems to me to be a sound one. It is not accurate to say that Harvard, or other colleges and universities have a blanket policy opposing discrimination. Rather, colleges and universities routinely balance the goal of nondiscrimination against other educational and social goals. (Leaving aside the question of whether affirmative action should have the moniker "discrimination"). Indeed, the right of universities to undertake this balance as they see fit was one of the central premises of the Grutter case, and one which is captured in the fellowship announcements described above.
So in fact Harvard Law School does not have a policy against discrimination. Rather, they (like almost every other college or university) seem to have a presumption of nondiscrimination, but which is rebuttable (and frequently rebutted) by other offsetting educational and social policies. Dartmouth (a school with which I am obviously familiar) similarly has a principle of nondiscrimination but also has a "Women in Science" program that is closed to male students. Women's soccer and softball teams are open only to women. So the argument boils down not to the argument that Harvard has an uncompromising nondiscrimination principle, because they compromise on it all the time. Rather, it is that they choose not to make an exception with respect to military recruiters that they make for other groups, presumably on the basis that the educational and other policies advanced by equal treatment of military recruiters do not outweigh their assessment of the strength of their nondiscrimination norm. Leaving aside constitutional equal protection questions, Harvard certainly may decide that offering and allowing the advertisement of fellowships that exclude certain groups from eligibility is outweighed by larger educational goals, but that allowing the military to recruit does not offer sufficient educational and social benefits. It is certainly Harvard's right to balance those policies as they see fit, but that doesn't obscure the fact that they are in fact balancing nondiscrimination as one of many prinicples and policies, not applying a blanket principle.
The law schools argument that the military is requesting an exception to an otherwise undbending principle thus seems somewhat specious to me. This does not appear to be a question of an unprecedented departure from a deeply-held principle, but rather of the routine balancing of the principle against many other educational goals which lead to frequent deviations from the principle in numerous instances. Thus, the statutory argument appears to collapse--instead, we simply have the question about whether or not the federal government is permitted to offer money to induce the schools to make an additional exception to the nondiscrimination principle for the benefit of military recruiters that the school routinely makes to advance any number of other policies, from admissions to fellowships.
Harvard has the right to balance the policies as they see fit, and to make exceptions to the general principle (or not make exceptions to it) as they see fit. And assuming there are no constitutional limits, it seems to me that Congress also has the right to balance the policies as they see fit, and to balance them differently if they so choose, and offer money to go along with it to induce the schools to adopt Congress's preferred balance rather than their own. The offer of money (and presumably the educational benefits that the money generates) is designed to put more weight on the scale in favor of the overall benefits of permitting the military to recruit on campus, and that is precisely the point--to influence the way in which universities strike the policy balance between their avowed principles and the routine exceptions that they make to those principles. But to say that they have an unwavering principle of nondiscrimination, and that therefore the statute doesn't apply to them, seems inaccurate to me.
No Red Star of David:
Today's Wall Street Journal has an editorial (link for subscribers) on Israel's pending admission to the International Red Cross.
After almost six decades of rejection, Israel saw the road cleared yesterday for its emergency and disaster relief organization to join the International Red Cross. The price of admission was relinquishing its symbol, the Red Star of David.Some maintain that the red cross is not a religious symbol, so this accomodation should be okay. Yet that is not how it is viewed -- which is the reason that the cross was not adopted in Muslim countries, and a red crescent is used instead.Instead, the Red Cross approved a new "neutral" symbol -- a Red Crystal, which Israel must adopt to become a member, possibly next spring. The Star of David may still be used at home, and on foreign missions it can be put inside the Crystal, provided the host country agrees.
Housing Market Update:
As many media sources continue to indulge in talk of a "soft landing" for housing prices in formerly "hot" markets, with a mere "slowdown in appreciation" expected, a Boston Globe headline today screams, Sellers chop asking prices as housing market slows: Cuts of up to 20% are now common as analysts see signs of a 'hard landing.'
UPDATE: A knowledgeable blogger calls the top.
Lost Liberty Hotel:
I see that the Lost Liberty Hotel project is still going. I frankly had assumed that the whole thing was a joke at the time concocted to create media attention around the Kelo issue. In fact, it appears that the sponsors of the hotel are continuing to move forward with the project. They are in the process of collecting petition signatures to place an initiative on the local ballot for the Town of Weare to take Justice Souter's farm and convert it into an inn for purposes of economic development. According to their web site (I haven't independently verified the rules of the Town of Weare for such initiatives), they claim that it only takes 25 signatures on a petition to place an item on the local ballot. They also claim taht 1418 people have pledged to stay at the inn if constructed, which they argue adequately demonstrates the prospect of economic development from construction of the inn.
Given the small number of signatures necessary to place an initiative on the ballot, presumably they will reach the necessary number (they aim to get much more than 25). The petition itself is here. As I read it, the language appears to require the Town Council to exercise its eminent domain power for the designated purpose (rather than simply urging the Town Council to do so). It also creates a trust fund for this purpose, but the language doesn't seem to make the Taking of the property contingent on raising sufficient funds to provide "just compensation."
Thus, as strange as the whole thing seems, it appears that the Lost Liberty Hotel project will be placed on the ballot for the March 2006 Town election. The deadline for submitting the signatures is January 2006. It is hard to imagine that the town's voters actually will approve the project at that time (notwithstanding the optimistic voting projections of the sponsors of the project), but it appears that Justice Souter will have to deal with this headache for at least another few months at least.
Tax, Spend, & Milton Friedman:
Paul Caron has a chart on the increase in federal tax revenues since the 2003 Tax Act. The Angry Bear has an informative chart on the growth in federal spending for the past several decades (defense and health care are the largest categories of spending increases, although other discretionary spending areas are up a bit too over Clinton). And Milton Friedman is "disgusted" by the increase in spending.
The British Tory Leader:
The other day, Randy mentioned David Cameron's first question period with Tony Blair. Michael Barone has more.
Obscenity Law Upheld:
As I expected, the Third Circuit has reversed the January district court decision striking down a federal obscenity statute. The Court's opinion in United States v. Extreme Associates is available here.
Analyzing the al-Arian Verdict:
The St. Petersburg Times has a fascinating article on what went on inside the jury room in the al-Arian terrorism case. Link via BashBlog, which has lots of other good links about the case.
Related Posts (on one page):
- Analyzing the al-Arian Verdict:
- The Al-Arian Verdict and the Patriot Act:
- Acquittals, Hung Jury in Al-Arian Case:
Thursday, December 8, 2005
When Is Anti-War Speech Harmful to the War Effort:
I'd like to focus a bit on the broader question of when speech during wartime is harmful to the war effort -- not necessarily when it's immoral, but only when it harms the war effort. To do this, let's first shift the discussion from the war on Iraq to World War II.
What speech (if any) by Americans during World War II do you think would have been harmful to the war effort, even if it weren't deliberately aimed at helping the Nazis win? If you think some such speech would have been harmful to the war effort then, but are skeptical about similar claims related to speech related to the war in Iraq now (as many commenters on this thread seem to be), why do you think there's a difference? (I should stress that I don't think that all antiwar speech is harmful to the war effort, and -- as I noted below -- that I don't think that even antiwar speech that harms the war effort is necessarily immoral. I do think, though, that a considerable amount of such antiwar speech is indeed harmful, and that people sometimes underestimate these harms.)
Related Posts (on one page):
- When Is Anti-War Speech Harmful to the War Effort:
- More on Speech That Causes Harm:
- When Is Anti-War Speech Immoral?
- When Is Anti-War Speech Immoral?
More on Speech That Causes Harm:
On reflection, here's what may be a simpler (but less concrete and less precise) way of putting my point below:
1. Making statements that cause serious harm (for instance, because they embolden the enemy) is not itself immoral.
2. Making statements that you know will on balance cause more serious harm than good likely is at least presumptively immoral. (I'm not saying it should be legally punishable, only that it generally shouldn't be done.)
3. What are the main differences between 1 and 2?
a. Making statements that cause serious harm may be proper if you think they will on balance do more good than harm.
b. Making statements that you think will do more good than serious harm is generally not immoral (especially if your thinking isn't unreasonable), even if you prove to be mistaken.
Related Posts (on one page):
- When Is Anti-War Speech Harmful to the War Effort:
- More on Speech That Causes Harm:
- When Is Anti-War Speech Immoral?
- When Is Anti-War Speech Immoral?
When Is Anti-War Speech Immoral?
Fernando Teson (PrawfsBlawg) has a very interesting post, which Juan links to below. Let me reproduce it here, so I can say a few things about it:
Let’s assume, without deciding, that the following propositions are true:
1) Americans have a robust First Amendment right to criticize the government. This includes both the decision to go to war and the conduct of war.
2) The United States is facing a ferocious and determined enemy in Iraq.
3) The United States has a just cause, which means that victory by the United States is the morally preferable outcome.
4) Certain forms of speech (for example, strong demands that U.S. troops withdraw) objectively aid the enemy (say this speech emboldens the enemy, so more U.S. troops die and chances for victory are reduced), even if the speaker does not intend to do so.
If all this is true, isn’t the speech in question morally objectionable, even if constitutionally permitted? Certainly, the fact that I have a legal right to say something doesn’t morally justify my saying it. If telling you (frankly and truthfully) that your new haircut makes you look ridiculous will hurt your feelings, maybe I should refrain from saying it. This is why the only way I see morally to justify someone who aids the enemy with his speech is to deny assumption 3), that the United States has a just cause. In that case, the correct moral position is indeed to demand that the troops return. But if one accepts 3), then I cannot see how one can avoid the conclusion that the speaker is acting immorally.
It seems to me that all four of the assumptions are sound; in particular, I do think that certain kinds of antiwar speech do objectively aid the enemy. In Winston Churchill's words, statements that "weaken confidence in the Government" and "make the Army distrust the backing it is getting from the civil power" may prove to be "to the distress of all our friends and to the delight of all our foes." (Winston Churchill, Speech in the House of Commons (July 2, 1942).) Such assumptions of objective harm to the war effort are sometimes made too hastily, but it seems to me that they are often correct (though of course we can speak more confidently of their tendencies than of any precisely provable effects, since the effects of such statements on morale both of our forces and our enemies' are hard to accurately measure). This is often good reason for people to refrain from certain kinds of criticism of the war effort.
Nonetheless, it seems to me important to recognize two matters.
1. Speech often has multiple effects (and therefore so does silence). Much wartime speech may both embolden the enemy -- which the speaker may genuinely regret -- and help accomplish other morally worthy goals. For instance, exposing improper conduct by American soldiers or intelligence agents may both hurt the war effort (for instance, by hurting our military morale, weakening civilian support, moving some neutrals towards our enemies), which is bad, and stop, diminish, and deter such improper conduct, which is good. Likewise, one might think that victory is the morally preferable outcome, but not if the cost in U.S. soldiers' lives is too great; calling for a withdrawal of American troops may therefore have bad effects (reducing the likelihood of victory) as well as good ones (reducing the loss of U.S. soldiers' lives).
Conversely, a social norm that people ought not criticize the government during wartime, since this will hurt the war effort, may both help the war effort and at the same time help shelter improper behavior by the military, or increase needless waste of our soldiers' lives. We need to consider the aggregate of these effects; we should neither solely focus on those effects that decrease our chances of victory nor ignore those effects.
2. Much of the debate may have to do with people's disagreement about #4. Some people, for instance, believe that withdrawing U.S. troops will actually increase the likelihood of victory, because it will reduce one source of Iraqis' anger, and make them more willing to make peace. Those people may well be mistaken; but say they're sincere in their beliefs, and especially if the beliefs are reasonable, even if not persuasive to us. The speakers then basically share our goals (victory and saving U.S. troops lives'); they simply disagree with us on the empirically sound means to accomplish those goals. It's hard to see their speech as "morally objectionable" when it rests on such predictive disagreement, especially when the disagreement is reasonable.
So before we decide whether someone's wartime speech is morally objectionable -- even if we think the speech would aid the enemy -- it seems to me that we need to know a lot more about (1) what other effects the speech may have, and (2) what the speaker believes the likely effects of the speech will be.
Related Posts (on one page):
- When Is Anti-War Speech Harmful to the War Effort:
- More on Speech That Causes Harm:
- When Is Anti-War Speech Immoral?
- When Is Anti-War Speech Immoral?
When Is Anti-War Speech Immoral?
Fernando Teson has an interesting post on this question at Prawfsblawg here.
Related Posts (on one page):
- When Is Anti-War Speech Harmful to the War Effort:
- More on Speech That Causes Harm:
- When Is Anti-War Speech Immoral?
- When Is Anti-War Speech Immoral?
More on the "Waning Anti-Kelo Backlash":
Steven Anderson of the Institute for Justice and the Castle Coalition also cautions against prematurely tolling the bells for the Anti-Kelo backlash in the states. He, like Tim Sandefur, remains optimistic that the states will come through with strong reforms that address the issue.
Steven writes:
There's little doubt that government's ability to dole out favors through eminent domain creates the classic rent-seeking problem, but to say the legislative response to the Kelo decision is running out of steam is a bit premature. The fact that eminent domain remains a topic of debate both on these pages and in legislatures around the country after almost six months is just one indicator of the issue's importance -- and the activity behind it. And that's not the only reason for optimism.
As Tim Sandefur suggested, yesterday the Pennsylvania Senate unanimously passed comprehensive and historic reforms of its eminent domain laws (though it did carve out exceptions for Philadelphia and Pittsburgh). Legislators in more than 30 other states and even more local governments are also preparing reform bills for the legislative sessions that begin early next year. It’s important to note that there are very few full-time legislatures; reform cannot occur when they’re not in session. In addition to changes by the legislature, there are movements by citizens in several states for ballot initiatives to restrict eminent domain to its more historic bounds.
Sure, the Alabama and Texas laws Tim writes about could have been better if they also tackled blight condemnations, but they are certainly good first steps. That these bills passed despite intense pressure from the well-funded beneficiaries of eminent domain abuse is surely a good sign for future efforts -- at least as much as it's a call for proponents of eminent domain reform to work as hard as possible to make good reform a reality. While Ohio's moratorium puts the issue off, Delaware essentially did nothing and California whiffed, many battlegrounds remain.
Eminent domain reform won't happen overnight. There are powerful groups interested in protecting their territory. But it is happening and any attempt to characterize the fight as over disserves not only the issue, but also those home and small business owners around the country actually working toward a constructive solution. This is a long-term effort and many positive results are on the way.
Certainly I hope that Steven is right that strong responses to Kelo will be possible. Moreover, as I just suggested, it may be that such reforms may be more plausible in states where citizens can propose a referendum on the issue (such as in California), as citizens in those states may have greater ability to circumvent the natural agenda control power of politicians. (Note, I am not saying referenda are always good, just that they may be more effective where policians have conflicts of interest and agenda control). It will be interesting to see how public opinion plays out against public choice theory in the coming months as states continue to address this issue.
Related Posts (on one page):
- More on the "Waning Anti-Kelo Backlash":
- Anti-Kelo Reform in California and "Proposition 13 Takings":
- Public Choice and the Waning Anti-Kelo Backlash:
- The Anti-Kelo Backlash?
Anti-Kelo Reform in California and "Proposition 13 Takings":
Tim Sandefur has a report on California's efforts on the efforts to respond to Kelo in California, which he says addresses many of the weaknesses in the reform efforts in other states:
There are now at least two eminent domain ballot propositions that have been filed with the Secretary of State’s office for placement on the November, 2006 ballot. There may be a third, I haven’t heard yet. The text of one of these, written by State Senator Tom McClintock, I reproduce below. When I have the others, I’ll post those, too.
As you can see, the McClintock proposal avoids the pitfalls I’ve pointed out in my article about the backlash so far. It does not contain exceptions that allow for redevelopment, in the way that Texas and Alabama’s laws do. And it does not limit itself to a meaningless report like Ohio’s. The important language is: “Private property shall not be taken or damaged without the consent of the owner for purposes of economic development, increasing tax revenue, or for any other private use, nor for maintaining the present use by a different owner.” The bold language is especially important, because Kelo presents a special problem for Californians due to Proposition 13.
After Kelo, there is no reason the state cannot condemn homes and resell them to the owners or other users solely to increase the property tax assessment on the transfer of title as allowed under Prop. 13.
I personally hope that Tim is right that California will act with stronger reforms than elsewhere. One advantage in California is that the reforms will be proposed as ballot propositions, rather than being generated by the state legislatures. This thus avoids the agenda-setting and related public choice problems otherwise associated with enacting reforms designed to tie the government's hands when it comes to taking property.
Nonetheless, the public choice problems remain daunting, but perhaps not overwhelming. As Tim writes, "Now that this proposition has been submitted to the Secretary of State, it must get enough signatures to qualify for the ballot. That costs money, and that’s one of the big problems this initiative faces. If it gets on the ballot, polls suggest it would pass overwhelmingly. But getting it on the ballot requires money, and who’s going to pay it? There’s little money to be gained in eminent domain reform…."
Tim also raises a question that others have asked me--Could the state condemn homes and resell them solely to increase the property tax assessment under Prop. 13? My reading of Kelo is that Sandefur's concern appears to be largely justified (although not inevitably so). (I am not aware of precedents other than Kelo that might govern this question). Parts of the Kelo opinion suggest that the Court seems to indicate that the possibility of an increase in tax revenues can qualify as an adequate public use, and so the state could simply take a home and sell it to someone else, thereby getting a property tax boost.
On the other hand, there is some language in the opinion that refers to the Taking as being part of an integrated developmental plan, so it is not clear whether a taking of particular homes simply to increase the tax revenues would qualify. Reading the opinion, however, it does not seem to require an integrated development plan for a Kelo-style taking, or whether that is a factor to be considered. Rather, it simply suggests that the fact that there was an integrated development plan in the case makes the Taking less questionable than would be the taking of a discrete parcel of property. Certainly Justice O'Connor's Dissent assumes that such a plan is not required but that individual parcels could be taken, as her famous Motel 6 example makes clear. Stevens does not appear to offer any response to O'Connor's expression of concern. Moreover, whereas there was merely the prospect of increased tax revenues in Kelo, in a "Prop. 13 taking" the government would be guaranteed an increase in property tax revenues.
As to this point, Justice Stevens writes in Kelo (some citations omitted):
It is further argued that without a bright-line rule nothing would stop a city from transferring citizen A's property to citizen B for the sole reason that citizen B will put the property to a more productive use and thus pay more taxes. Such a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case. While such an unusual exercise of government power would certainly raise a suspicion that a private purpose was afoot, the hypothetical cases posited by petitioners can be confronted if and when they arise. They do not warrant the crafting of an artificial restriction on the concept of public use [fn].
He adds in a footnote [fn]:
A parade of horribles is especially unpersuasive in this context, since the Takings Clause largely "operates as a conditional limitation, permitting the government to do what it wants so long as it pays the charge." Eastern Enterprises v. Apfel, 524 U.S. 498, 545, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998) (KENNEDY, J., concurring in judgment and dissenting in part). Speaking of the takings power, Justice Iredell observed that "[i]t is not sufficient to urge, that the power may be abused, for, such is the nature of all power--such is the tendency of every human institution: and, it might as fairly be said, that the power of taxation, which is only circumscribed by the discretion of the Body, in which it is vested, ought not to be granted, because the Legislature, disregarding its true objects, might, for visionary and useless projects, impose a tax to the amount of nineteen shillings in the pound. We must be content to limit power where we can, and where we cannot, consistently with its use, we must be content to repose a salutory confidence." Calder, 3 Dall., at 400, 1 L.Ed. 648 (opinion concurring in result).
This does not appear to rule out the possibility of a Prop. 13 Taking to me. Nor does his response to the "parade of horribles" stand up to scrutiny here, because the government can simply resell the property, so it is a financial wash on that front. But it can then capture an increased tax revenue if it chose to do so. Finally, as the form of the transfer would be a taking from A to give to B, assuming the property were resold the primary beneficiary of the transfer would be the government, this does not seem to be a purely private taking (at least as Stevens sees it). Thus, as I read the case, Sandefur's concern and the California law that is being proposed in response, seems appropriate.
The Court's repeated reliance on Ruckelshaus v. Monsanto in the Kelo decision also suggests that the existence of an integrated development plan is not a necessary condition for a Kelo-style taking (although the Court suggests that it may be a sufficient condition), but that it is sufficient to take the property of discrete property-owners if the government believes that some abstract public benefit might result. In characterizing that case, the Court wrote in Kelo:
In Ruckelshaus v. Monsanto, Co., 467 U.S. 986, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984), the Court dealt with provisions of the Federal Insecticide, Fungicide, and Rodenticide Act under which the Environmental Protection Agency could consider the data (including trade secrets) submitted by a prior pesticide applicant in evaluating a subsequent application, so long as the second applicant paid just compensation for the data. We acknowledged that the "most direct beneficiaries" of these provisions were the subsequent applicants, id., at 1014, 104 S.Ct. 2862, but we nevertheless upheld the statute under Berman and Midkiff. We found sufficient Congress' belief that sparing applicants the cost of time-consuming research eliminated a significant barrier to entry in the pesticide market and thereby enhanced competition.
As I read Kelo then, with respect to a "Prop. 13 Taking," the Court seems to leave this in the hands of the political process with no constitutional protection. I don't see constitutional restrictions in Kelo that would prohibit this sort of taking, especially with the unquestioned increase in tax revenues that would result.
Update:
My initial post inadvertently omitted an important "not" before "overwhelming." I have corrected the typo.
Related Posts (on one page):
- More on the "Waning Anti-Kelo Backlash":
- Anti-Kelo Reform in California and "Proposition 13 Takings":
- Public Choice and the Waning Anti-Kelo Backlash:
- The Anti-Kelo Backlash?
More on Gun Control in Canada, Yesterday and Today:
All emphases added:
Hamilton Spectator (Ontario, Canada), Jan. 12, 1999:
[T]he main criticisms [of the new gun registration law] are: One, [critics] fear the slippery slope, that once their guns are registered, they can too easily be taken away. Easily concealed handguns have previously been confiscated without compensation.
Two, they sense being pegged as criminals. There is no U.S. constitutional argument to lean on — no "right to bear and keep arms" — just a feeling it's unfair and arbitrary. . . .
To a non-gun owner, a registry sounds entirely harmless. If you don't plan to engage in criminal acts, why oppose it? Count most federal officials among this group.
"Welcome to the weapons world," chuckles Jean Valin, a justice department spokesman, addressing gun owner concerns. "We are trying to tell (owners) go to sleep at night, because you have nothing to fear from this government. They like to invent bogeymen, and this is one of them."
Hamilton Spectator (Ontario, Canada), Jan. 4, 2001, item written by Howard Elliott, who is now the newspaper's Executive Editor:
A concern regularly cited by those who oppose [the registration] law, and gun licensing and registration in general, is that this is the first step on a slippery slope with the final destination being the government's intention to make guns illegal, or to make them so difficult to own, people will find owning a gun isn't worth the bother.
No doubt, there are people on the gun control side of the debate who favour this sort of outcome, just as there are people on the other side who believe Canadians should have unfettered rights to own firearms with minimal or no government involvement.
But we suspect that neither of these extreme viewpoints reflects the position of the average Canadian, who tends to be moderate and fair-minded. There is no evidence that gun registration will ever equal arbitrary seizure, or a law against ownership. In the end, this is about having firearms registered, so police will have more knowledge of who has guns and be in a better position to protect the public where danger does exist. That's an eminently reasonable goal.
Maclean's, May 22, 2000:
Canada . . . [is] portrayed in a pretty darn scary video by the U.S. National Rifle Association. The NRA (like many Canadian gun owners, to be sure) is particularly outraged by Bill C-68, the federal law requiring all firearms to be registered by the end of 2002. It's the old slippery slope argument: once the feds know where the guns are, it's just a matter of time before they take them away.
Or so, at least, argues the NRA . . . . It should, by all rights, be a tough sell these days. Americans have been shocked by a string of shootings at schools, churches, offices — even day-care centres. . . . [The piece goes on to discuss the Million Mom March movement.] But the early evidence is not all encouraging. It may take more than dying teens, or marching moms, to shift American attitudes.
Vancouver Sun, today (thanks to InstaPundit for the pointer):
Prime Minister Paul Martin will propose a ban on most handguns in Canada, CanWest News Service has learned.
Sources say Martin, who will make the election campaign announcement this morning, wants to choke off the supply of handguns in this country, particularly guns brought into the country illegally and those sold on the black market.
There will be some exemptions, including maintaining the right for police to carry handguns. The prime minister is also expected to announce a significant increase in resources for police to deal with the ban.
The Liberals say the thinking behind this crime strategy is that if no one is allowed to have a handgun in Canada, policing authorities will be in a better position to act on anyone who has a handgun or attempts to transport or sell a handgun.
The announcement will include the banning of all registered handguns in Canada. However, sources say special arrangements will be made for gun collectors.
UPDATE: Dave Kopel's post below has much more.
FURTHER UPDATE: Just to make it clear, I'm suggesting that gun owners are right to doubt assurances that they can "sleep at night" with no fear of gun bans. In Canada, handgun registration was eventually followed by the late 1990s long gun registration, which in turn is now followed by a proposal for a handgun ban (which would likely be made cheaper and thus more politically feasible by the presence of handgun registration). Gun owners who slept at night now wake up to find one sort of gun ban on the doorstep; gun registration is indeed now being followed by a law against ownership; the NRA's "old slippery slope argument" seems to have proven sensible. And it seems quite plausible that a handgun ban would eventually be followed by a rifle or shotgun ban -- for instance, as people point out (quite accurately) that many criminals, if denied access to handguns, would use much more lethal sawed-off shotguns, and banning all long guns is necessary to "choke off the supply of [sawed-off shotguns and rifles] in this country, particularly guns [cut down in] the country illegally and those sold on the black market."
Long gun registration surely isn't ineluctably causing handgun bans; even handgun registration needn't necessarily be followed by handgun bans. These are tendencies, not guarantees. But when past assurances of the "don't worry, no gun bans looming, we're just talking modest regulations here" variety prove to be unsound, perhaps gun owners should be skeptical when they hear similar assurances in the future.
Related Posts (on one page):
- More on Gun Control in Canada, Yesterday and Today:
- Canadian Government to Ban Handguns:
Patriot Act Compromise:
The Associated Press is reporting a revised compromise on the expiring provisions of the Patriot Act. It's hard to tell from the story how this compromise differs from the last one that didn't hold, except that the sunset provision for roving wiretaps and Section 215 orders will be 4 years instead of 7 years (which sounds like small potatoes to me).
Same-Day Release of Supreme Court Arguments:
I enjoyed listening to the oral arguments in the Solomon Amendment case this week, and the thought occurred to me: Why don't the Justices permit the same-day release of audio recordings for all of their arguments?
I can understand why the Justices don't want oral arguments televised (not to say I'm convinced, but I do understand the concern). But sound-only recordings generally don't raise the same problems. And for Supreme Court buffs, the audio is just as good; video adds little if any substance, at least as soon as you are familiar enough with the Justices to recognize their voices. Oral arguments have been taped for decades and get released eventually, so why not release the audio on the day of the argument when the public is most interested?
I can understand why the Justices don't want oral arguments televised (not to say I'm convinced, but I do understand the concern). But sound-only recordings generally don't raise the same problems. And for Supreme Court buffs, the audio is just as good; video adds little if any substance, at least as soon as you are familiar enough with the Justices to recognize their voices. Oral arguments have been taped for decades and get released eventually, so why not release the audio on the day of the argument when the public is most interested?
Harvard Crimson on FAIR v. Rumsfeld:
Scott Johnson posts on an interesting email exchange between GMU Dean Dan Polsby (author of a pro-government amicus brief in FAIR v. Rumsfeld) and a reporter from the Harvard Crimson reporting on the oral argument in FAIR v. Rumsfeld. In the exchange Dean Polsby addresses the argument that arose in oral argument drawing on an amicus brief submitted by several Harvard Law School professors.
The underlying article in the Harvard Crimson suggests that the amicus position may have more "legs" with the Justices than the First Amendment challenge raised by FAIR's lawyer and on which the Circuit Court opinion was grounded.
The Al-Arian Verdict and the Patriot Act:
Reading over some of the press coverage of the Al-Arian terrorism case, I find myself somewhat puzzled by descriptions of the verdicts as a setback for the Patriot Act (as opposed to the prosecution and DOJ more generally). Consider the first two paragraphs of Wednesday's front-page Washington Post story by Spencer Hsu and Dan Eggen:
There was at least one count (and perhaps more) in the indictment that involved substantive crimes amended by the Patriot Act — I'm thinking about the charge of conspiracy to provide material support — and there were legal rulings on the meaning of those crimes. But the al-Arian case was considered a major Patriot Act test case because of the heavy use of foreign intelligence information at trial, and whether such evidence could be used doesn't have an obvious connection to the acquittals. There's a vague connection, but it strikes me as a reach to describe the verdict as a setback for the Patriot Act.
A federal jury acquitted former Florida professor Sami al-Arian yesterday of conspiring to aid a Palestinian group in killing Israelis through suicide bombings, dealing the U.S. government a setback in its efforts to use secretly gathered intelligence in criminal cases against terrorism suspects.Am I missing something, or is this desciption of the case rather odd? To be sure, the al-Arian prosecution was a major test case for the Patriot Act; much of the evidence the jury saw was admitted thanks to the Patriot Act. But as I understand it, the jury's verdict didn't have any thing to do with the admissibility of evidence. According to one juror interviewed in the article, the jury acquitted because they didn't think that the evidence proved the case, not because they disagreed with or questioned something in the Patriot Act. They had reasonable doubt about the facts, not the law.
The trial was a crucial test of government power under the USA Patriot Act, which lowered barriers that had prevented intelligence agencies from sharing secretly monitored communications with prosecutors. The case was the first criminal terrorism prosecution to rely mainly on vast amounts of materials gathered under the Foreign Intelligence Surveillance Act (FISA), whose standards for searches and surveillance are less restrictive than those set by criminal courts.
There was at least one count (and perhaps more) in the indictment that involved substantive crimes amended by the Patriot Act — I'm thinking about the charge of conspiracy to provide material support — and there were legal rulings on the meaning of those crimes. But the al-Arian case was considered a major Patriot Act test case because of the heavy use of foreign intelligence information at trial, and whether such evidence could be used doesn't have an obvious connection to the acquittals. There's a vague connection, but it strikes me as a reach to describe the verdict as a setback for the Patriot Act.
Related Posts (on one page):
- Analyzing the al-Arian Verdict:
- The Al-Arian Verdict and the Patriot Act:
- Acquittals, Hung Jury in Al-Arian Case:
Wednesday, December 7, 2005
Canadian Government to Ban Handguns:
Facing elections in late January, due to a no-confidence vote in Parliament that resulted from a corruption scandal, Canada's ruling Liberal party will announce a handgun ban on Thursday. All legally-owned handguns have been registered in Canada since the 1930s.
On September 22, 1998, Anne McLellan (the Liberal Minister of Justice) said "we're not interested in confiscating their guns, as long as they are legitimate gun owners, as long as they store them appropriately, transport them appropriately and so on ..."
That same day, in a debate in Canada's Parliament, Liberal MP John McKay (Scarborough East) stated,
Turning now to the motion, the first issue is the confiscation of private property. If the mover thought about that for more than five seconds, he would realize that a proper registration system gives security of ownership and enhances value. Far from confiscating, it does the exact opposite and legitimizes the owning of firearms. Certainly property registration does wonders for land titles and land values as it does for motor vehicles and other forms of property. Why would it not be true with firearms?
On August 26, 2004, Canada's Commissioner of Firearms spoke at the annual meeting of the Canadian Professional Police Association. He declared: "For years, firearm owners have expressed fears regarding the confiscation of firearms. This is a concern I heard loud and clear when we held consultations with firearms organizations last fall. But, in fact, those fears have not materialized."
In a 1976, interview in the New Yorker, the late Nelson Shields, who was then the head of the group which is now known as the Brady Campaign, explained registration's purpose:
The first problem is to slow down the number of handguns being produced and sold in this country. The second problem is to get handguns registered. The final problem is to make possession of all handguns and all handgun ammunition — except for the military, police, licensed security guards, licensed sporting clubs, and licensed gun collectors — totally illegal.(Richard Harris, "A Reporter at Large: Handguns," New Yorker, July 26, 1976, p. 58.)
Related Posts (on one page):
- More on Gun Control in Canada, Yesterday and Today:
- Canadian Government to Ban Handguns:
Universities, Businesses, Loyalty, and Criticism:
Marquette lawprof Christine Hurt (Conglomerate) writes this, under the title of "Defending Marquette":
I have [a] distinction that could be made between this student and a typical university student. . . .
The Dental School is an operating oral health clinic. The Dental School sees patients from the community on a daily basis. The students see patients in the clinic. The Milwaukee Journal-Sentinel describes the student as being 22 years old, so let's assume that he was in his first semester. According to the course bulletin, the student would have had patient rounds in his first semester as well as an "Introduction to Clinical Practice" in which real patients are treated. (If the students were a second or third year, his patient time would have been even greater.) From an agency standpoint, the student is not only a student, but an agent of the university. The clinic charges fees for its services (it does not accept third-party insurance). The university has an interest in maintaining good public relations with its client base and to continue to have paying clients. Having someone who provides services in its clinic blogging negatively about dental school professors and other students, all of whom provide services in the clinic, is against the interest of the university. I could definitely make the argument that the student is an agent who has breached his duty of loyalty.
That being said, a warning may have sufficed as discipline; I am not sure that having to restart dental school is the proportionate sanction. In addition, I hope that any future professional students know at the outset what the expectations are concerning blogging.
I appreciate Prof. Hurt's argument, which would certainly make sense in a typical business. But would we really want to see it in an academic institution? After all, it would apply to a wide range of criticisms of the university — not just immature sniping but also substantive criticism. In fact, it would apply more to substantive criticism than to immature sniping; if I were a prospective dental patient at the clinic, I'd likely shrug off any childish grousing I hear about, but I might well be much more worried by real criticisms about professors' knowledge, teaching ability, ethics, or what have you.
Moreover, universities provide lots of for-pay services, including continuing education (Continuing Legal Education classes, what at UCLA are called Extension classes, executive education classes, and the like). And of course we have to remember universities' primary service — educating paying undergraduate and graduate students. If a university student publicly criticizes the professors' skills, or even the qualities of his classmates, some prospective students might choose a rival university. And if a university professor does the same, for instance by publicly claiming that affirmative action hiring has damaged the university's quality, that might cause even greater harm to "[t]he university['s] interest in maintaining good public relations with its client base and [in] continu[ing] to have paying clients." Certainly it would cause much greater harm than that caused by the fulminations of some unknown student.
Yet do we really think that it's therefore proper for universities to silence criticism by students, clinical students, or professors, the way other businesses silence criticism by employees or trainees? I don't think so, and I think this relates to the "duty of loyalty." I do feel that I have some moral duty of loyalty to my university, but I don't think that this is the standard duty of loyalty that an employee has to a business.
Rather, universities, university professors, and university students are supposed to have a greater duty of loyalty to the truth; and if we think our university is doing something wrong, we think it's proper — perhaps even morally mandatory — for us to condemn it, even if that means some short-term harm to the university. Such a willingness to tolerate criticism, the theory goes, is ultimately of greater benefit to the institution, and to the academy and society generally. And because universities are supposed to care about the truth and about debate more than about the bottom line, they ought to refrain from silencing their employees the same way that more profit-focused businesses do.
This having been said, I agree that the blogging student's speech was at most a very slight contribution to the search for truth — it's just too vague and nonsubstantive to be of much help. At the same time, though, its obvious lack of substance also makes it not terribly harmful.
And, more importantly, (1) both the dental school's rationale (unprofessional speech may be punished) and Prof. Hurt's rationale (speech that is "disloyal" because it may hurt the university's image may be punished) would authorize the punishment of much more speech than this, and (2) students (and professors) will surely realize this. If Prof. Hurt's theory is adopted, would even a much more thoughtful and substantive critic of the school be willing to come forth? Or would he fear that any criticism might be condemned as "disloyal" and "unprofessional," and lead to expulsion, firing, or what have you? Such a fear, I think, is bad for academic institutions, and will ultimately harm them more than the occasional intemperate criticisms would.
UPDATE: Note that Marquette political science professor John McAdams has written a good deal about this on his blog, and has criticized the Marquette administration for its actions. Should he be subject to discipline on the grounds that his actions are disloyal, and may harm Marquette by lowering its reputation with students, donors, and others (though they may harm a different department of the university than the one for which Prof. John McAdams works)?
Coffee-Infused Coke:
So will Coca-Cola Blak -- a version of Coca Cola infused with coffee -- be good for you, or worthy of a lawsuit?
Yes, Prime Minister:
David Cameron, the newly-elected leader of the Conservative Party (after defeating David Davis last week) questioned Prime Minister Tony Blair in Parliament for the first time earlier today. You can view their two exchanges using RealPlayer here and Windows Media Player here. His questioning concerned education (at 2:05) and environmental policy (at 13:15). Blair is a past-master of parliamentary debate from the minority position, and it will be interesting to see how Cameron fares against him. Cameron's opening exchange on schools seemed much more effective than his later foray about a successor to the Kyoto treaty to govern carbon emissions in which he presses Blair on whether Blair "absolutely" agrees with his own environment secretary. Blair takes a strong run at him around 25:00 to which Cameron does not respond. (The entire question time runs 30 minutes.)
The First Roberts Opinion:
As Juan notes below, the first signed opinion by Chief Justice Roberts was handed down today in Martin v. Franklin Capital Corporation. The subject matter is arcane — when to award attorney's fees under 28 U.S.C. 1447 if a state case removed to federal court is remanded back to state court — but I thought I would take a look at the opinion anyway.
It's a nice piece of work, I think. It takes the reader through the issues pretty carefully, explaining the choices clearly at each step and justifying the Court's decisions using the text and context of the statute and the context of other related statutes. The opinion also announces a clear rule to guide district courts: "We hold that, absent unusual circumstances, attorney's fees should not be awarded when the removing party has an objectively reasonable basis for removal."
Of particular interest, the opinion pays tribute to the two judges for whom Roberts clerked. The late Chief Justice Rehnquist gets a mention as the author of a relevant opinion: "As Chief Justice Rehnquist explained for the Court in Fogerty v. Fantasy, Inc., 510 U. S. 517, 533 (1994), . . . " (p.4). Judge Friendly is cited for a jurisprudential point: "Discretion is not whim, and limiting discretion according to legal standards helps promote the basic principle of justice that like cases should be decided alike. See Friendly, Indiscretion About Discretion, 31 Emory L. J. 747, 758 (1982)."
Finally, Roberts tries to keep the tone relatively light, such as in this line:
It's a nice piece of work, I think. It takes the reader through the issues pretty carefully, explaining the choices clearly at each step and justifying the Court's decisions using the text and context of the statute and the context of other related statutes. The opinion also announces a clear rule to guide district courts: "We hold that, absent unusual circumstances, attorney's fees should not be awarded when the removing party has an objectively reasonable basis for removal."
Of particular interest, the opinion pays tribute to the two judges for whom Roberts clerked. The late Chief Justice Rehnquist gets a mention as the author of a relevant opinion: "As Chief Justice Rehnquist explained for the Court in Fogerty v. Fantasy, Inc., 510 U. S. 517, 533 (1994), . . . " (p.4). Judge Friendly is cited for a jurisprudential point: "Discretion is not whim, and limiting discretion according to legal standards helps promote the basic principle of justice that like cases should be decided alike. See Friendly, Indiscretion About Discretion, 31 Emory L. J. 747, 758 (1982)."
Finally, Roberts tries to keep the tone relatively light, such as in this line:
We have it on good authority that "a motion to [a court's] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles." United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.).Okay, so it's not exactly a knee-slapper, but I thought the "good authority" line added a nice touch given the dry nature of the topic (even if the sentence itself didn't add much). All in all, a solid first opinion.
Public University's Punishment of Employee for Anti-Homosexuality E-Mail Set Aside:
The Foundation for Individual Rights in Education:
[Jihad Daniel, an employee of William Patterson University, a public school in New Jersey] privately replied to an unsolicited March 7 mass e-mail from Professor Arlene Holpp Scala promoting a viewing and discussion of a film described as “a lesbian relationship story.” Daniel’s March 8 e-mail to Professor Scala requested that he not be sent “any mail about ‘Connie and Sally’ and ‘Adam and Steve.’” Daniel went on, “These are perversions. The absence of God in higher education brings on confusion. That is why in these classes the Creator of the heavens and the earth is never mentioned.”
By June 15, Daniel had received a letter of reprimand in his permanent file saying that since the word “perversion” was “derogatory or demeaning,” he was guilty of violating state discrimination and harassment regulations. Daniel appealed to WPU President Arnold Speert, arguing that the First Amendment protected his speech, only to be told that such an argument was “beyond the scope” of the finding. . . .
Daniel contacted FIRE, which on July 5 wrote Speert in protest and reminded him that state college administrators “cannot simply choose to ignore the First Amendment when it becomes inconvenient.” New Jersey Attorney General Peter C. Harvey’s office responded to FIRE, absurdly asserting that “speech which violates a non-discrimination policy is not protected.” FIRE then took the case public, resulting in national condemnation of the university, while Daniel appealed the finding through a union grievance process.
On November 16, Daniel’s hearing took place with able representation from the Communication Workers of America Local 1031. Yesterday, Daniel received notification that the hearing officer had determined that the sexual harassment charge was “not supported” and that the letter would be removed from his personnel file. Moreover, the hearing officer clearly stated that Daniel’s one-time expression of a personal religious belief was not “harassment.” Daniel did receive a purely verbal reprimand for sending the e-mail while at work. . . .
Marquette Suspends Dental Student for Things He Wrote on His Blog,
The Milwaukee Journal-Sentinel reports:
A dental student at Marquette University has been suspended for the rest of the academic year and ordered to repeat a semester after a committee of professors, administrators and students determined that he violated professional conduct codes when he posted negative comments about unnamed students and professors on a blog. . . .
The focus of the hearing, [the student's lawyer] said, were half a dozen postings including one describing a professor as "a (expletive) of a teacher" and another that described 20 classmates as having the "intellectual/maturity of a 3-year-old." [EV Note: According to this account by Marquette professor John McAdams, the professor and the classmates weren't named in the blog, though the professor's identity might be inferrable by those in the know.] . . .
In a letter to the student dated Dec. 2, Denis Lynch, the dental school's associate dean for academic affairs, said the committee had found the student "guilty of professional misconduct in violation of the dental school's Code of Ethics and Professional Conduct."
The student also violated a universitywide code that subjects students to disciplinary action if they participate in stalking, hazing or harassments, the letter states.
In addition to informing the student of his suspension and his need to repeat his fall semester, which costs $14,000 in tuition, Lynch threatened the student with expulsion if he continued to post material on "any blog sites that contain crude, demeaning and unprofessional remarks." . . .
Prof. McAdams of the Marquette Political Science Department has much more on this, and harshly criticizes Marquette; Inside Higher Ed has more, too.
Marquette is a private university, and is thus not bound by the First Amendment. Moreover, this case doesn't seem to involve punishment of students for their ideological viewpoints, and thus doesn't pose the most serious academic freedom problems. Nonetheless, it seems to me that Marquette should be condemned for this: Students, it seems to me, must be entitled to criticize the quality of their professors and the student body, even when they do it in childish terms; moreover, restricting speech under standards as vague as "unprofessional" risks deterring a good deal of speech, including more serious criticisms.
Thanks to Sean Hackbarth (The American Mind) and David Carlson for the pointer.
Related Posts (on one page):
- Marquette's Punishment of Dental Student for Things He Wrote on His Blog:
- Marquette Suspends Dental Student for Things He Wrote on His Blog,
Roberts' First Opinion
John Roberts first signed opinion as Chief Justice of the United States Supreme Court was issued today, a unanimous opinion in Martin v. Franklin Capital Corp. Here it is.
[Note: Post edited as indicated to correct an error. As a commenter noted below, John Roberts is Chief Justice of the United States, not of the United States Supreme Court.]
UPDATE: Tony Mauro's article on the Roberts opinion closes with this interesting nugget:
For anyone who attended the oral argument in the case, Wednesday’s decision also shows that Roberts is unafraid of standing up to Justice Antonin Scalia. One of the relevant precedents in the case was a 1968 case called Newman v. Piggie Park Enterprises. When one of the lawyers at argument referred to the case by the shorthand Piggie Park, Scalia interrupted and said, only half-jokingly, “You know, it really would improve the dignity of this Court if we referred to Piggie Park as Newman.”Without apology, Roberts referred to the case throughout his opinion Wednesday as Piggie Park.
Public Choice and the Waning Anti-Kelo Backlash:
Tom Blumer at BizzyBlog is not surprised that the Anti-Kelo backlash is already running out of steam as a result of public choice pressures.
Update:
More from the Affordable Housing Institute--in addition to the analysis, I recommend clicking through just to see the artistic renderings of the issue.
Update:
Timothy Sandefur notes in the Comments that Tom and I have misunderstood his position as one of a "waning" anti-Kelo backlash:
It's wrong to refer to the "waning" backlash. The point of my post and my article is that the backlash is not waning, but that it has not really begun at all. Most of the state legislatures are in recess, and have been since shortly after Kelo was decided. The four states that have acted are unusual in that regard (Texas and Alabama were in special session). My point was that the Kelo backlash has yet to begin and that if it is to do so, it must avoid the errors made by Ohio, Alabama, Texas, and Delaware.
I (and apparently Tom too) had understood Tim to say that it would be difficult to sustain the backlash and that weak legislation that had been enacted was an inevitable outcome of the legislative process. He appears to be optimistic that stronger legislation can be enacted elsewhere. I apologize if I misread his initial post.
Related Posts (on one page):
- More on the "Waning Anti-Kelo Backlash":
- Anti-Kelo Reform in California and "Proposition 13 Takings":
- Public Choice and the Waning Anti-Kelo Backlash:
- The Anti-Kelo Backlash?
Solomon Amendment Argument:
Sounds like it didn't go so well for the law schools in oral argument yesterday:
In the argument on Tuesday, the law school coalition's lawyer, E. Joshua Rosenkranz, had difficulty gaining traction as he urged the justices to uphold the appeals court's judgment that the Solomon Amendment amounted to "compelled speech" by forcing the law schools to convey the military's message. Chief Justice Roberts made his disagreement unmistakable.
"I'm sorry, but on 'compelled speech,' nobody thinks that this law school is speaking through those employers who come onto its campus for recruitment," the chief justice said. "Nobody thinks the law school believes everything that the employers are doing or saying."
The lawyer adjusted his focus. The law schools have their own message, "that they believe it is immoral to abet discrimination," he said.
This time, Justice Sandra Day O'Connor took issue. "But they can say that to every student who enters the room," she said.
"And when they do it, your honor, the answer of the students is, we don't believe you," Mr. Rosenkranz said.
"The reason they don't believe you is because you're willing to take the money," Chief Justice Roberts interjected. "What you're saying is this is a message we believe in strongly, but we don't believe in it to the detriment of $100 million."
Ouch. If you are keeping score at home, I think we can safely log the Chief's vote onto the government's side of the ledger. The Times story indicates that most of the other Justices were also fairly skeptical.
As you probab