is on a roll, with a series of recent posts that I think would be of interest to many VC readers. Check it out.
Saturday, January 21, 2006
I joined the Volokh Conspiracy in the spring of 2002. Eugene invited me to join the group as he the blog evolved from the Volokh Brothers to the Volokh Conspiracy. I was still new to academia, so Eugene suggested that I might wish to blog under a pseudonym. In an abundance of caution, not quite knowing how my blogging would be received, I accepted the offer, and Juan Non-Volokh was born.
In retrospect, I may have been overcautious. While I believe that conservatives, libertarians, and others with under-represented political views face significant obstacles within legal academia (see, e.g., here and here), they have not been as great as I had feared. Without question, some on the right overstate the hostility to conservative and libertarian views in the legal academy.
One of my concerns was whether my colleagues -- at my home institution and within my fields -- would feel that my blogging compromised my academic work. From the moment I entered academia I was counseled that were I to spend too much time on non-academic pursuits (op-ed writing, consulting, and perhaps blogging) some might believe that I was devoting insufficient time to my scholarship. After all, time spent blogging is time not spent producing law review articles. As I've argued before scholarship can and should be evaluated on its own merits, irrespective of how the author spends his or her time. Nonetheless, it is clear that how others view one's commitment to scholarship matters. As my academic career has progressed, I have felt more free to devote more time to non-academic writing. Over the past three years I have increased the amount of non-academic writing I do under my own name, including articles and commentary on some contentious political issues. This appears to have had no effect on academic career one way or the other (though it has cost me other opportunities). So it's not clear to me that blogging under my own name would have made a difference one way or the other.
I also failed to anticipate how the prevalence and respectability of blogging would grow within the legal academy. In 2002, there were not many legal academic bloggers, and very few without tenure. Today, however, blogging is sufficiently widespread that I highly doubt that blogging, in and of itself, would hamper the promotion of an otherwise productive and engaged academic. In 2006, a scholar with good article placements should have little to fear from responsible, respectful blogging. I hope my blogging has been both, and I apologize for those occasions when it was not.
Had I known in 2002 what I know today, I am unsure I would have adopted a pseudonym — and I doubt my posts would have been all that different as a result. I am not about to recommend that untenured professors blog under their own names, nor am I recommending blogging under a pseudonym. Untenured academics who wish to blog should consider what they expect to gain, and what they risk losing, from such endeavors, and make their decisions accordingly. For other thoughts on the pros and cons of untenured blogging, see these posts by Stephen Bainbridge, Daniel Solove, and Larry Solum.
Starting today I am taking a brief leave from the Volokh Conspiracy to attend to a few matters. I expect to return soon (as in, sometime between now and when my tenure is official later this year). When I do it won't be as Juan. In the meantime, I would like to thank my co-bloggers and readers for their support and feedback, even (perhaps especially) when we disagreed. I hope that most readers have found my posts to be worthwhile.
The theory strikes me as quite similar to that explained by Mark Seecof in his comments.
There's also some more material pointed to on SearchEngineWatch.
Friday, January 20, 2006
I noticed he'd been spamming our comments by putting up ads for his site. It's fine to link to a post on your site if it's related to something on-topic in your comment; it's even fine if the link is part of your signature; but cluttering our site up with unrelated ads for your site is not fine, and it's usually pretty easy to tell the difference — it surely was here.
A google search reveals that he's also been doing the same on other blogs. I've banned his IP address from our site, and I wanted to alert other bloggers, in case they want to do the same.
UPDATE: The Hollywood Liberal e-mailed me in response:
Sorry, didn't know that was a problem. I don't want to cause any trouble for you, or your site, which I really like I'll stay off of it from now on.I appreciate the apology; I would have thought that it was pretty obvious that spamming people's comment threads wasn't quite proper, but I'm glad to know at least that the cause for the spam was ignorance of the norms rather than deliberate disregard of the norms.
I just discovered that R.W. Bradford, publisher of the libertarian magazine Liberty died in December while I was away in Israel. I've always enjoyed Liberty, and published a couple of pieces there. With Reason Magazine lately going off on many counter-cultural and otherwise uninteresting tangents, Liberty was often the only place or a one could, for example, find intelligent reviews of the latest libertarian-themed books. Liberty has waned in imported to the libertarian movement over time as blogs have provided a new, cheap, and immediate outlet for libertarian writers. But for quite a while, Liberty was the only outlet I knew of where (mostly) non-strident libertarians regularly discussed and debated important issues, and one could get the latest, objective news on libertarian goings-on.
Anyway, I close with a brief tribute from a good friend of mine and avid reader, who sent me the following email:
I just found out two days ago that R. W. Bradford died. I find myself surprisingly saddened by this--after all, I never met him and have only the vaguest idea of what he looks like. He has been one of my favorite writers for the last fifteen years or so.... I have many "favorite" writers. All of them have achieved a certain amount of acclaim--except Bradford, who is very obscure. I'm not sure that I have ever come across the work of a writer who (in my estimation) writes (wrote) so well yet remains so obscure.
The government needs this information, it alleges, because under Ashcroft v. ACLU, the constitutionality of COPA may hinge on it. To make a long story short, COPA requires commercial providers of adult materials to put pornography behind password gates or other authentication screens to help make sure it not readily available to children. The key issue in the COPA litigation is the effectiveness and restrictiveness of filters versus COPA screens as mechanisms for keeping pornography out of the hands of kids. DOJ's position is that COPA screens are more effective than filters, so the law requiring screens is constitutional under the First Amendment. DOJ's argument is that it needs the information from Google to explain the role of search engines in locating and obtaining pornography, which is then integral to understanding why filters are not an effective alternative to COPA screens.
I'm hoping VC readers can help me understand and assess these claims a bit better. There are two related issues here, I think. First, how are the results of the Google subpoenas going to help answer whether COPA screens are more effective than filters? In other words, what might the results show that will help DOJ make its case? And second, what other data is out there that might address these questions either as effectively or more effectively than the information requested in the subpoenas being litigated?
Related Posts (on one page):
- Government Expert's Explanation for the Subpoena of Google Records:
- The Google Subpoenas:
Ha'aretz: "In a new attack on the existence of Israel, Iranian President Mahmoud Ahmadinejad has challenged Europe to take back the Jews who emigrated to Israel, adding that no Jews would remain in Israel if Europe were to open its doors."
I have a better idea. How about Europe, and the U.S., open their doors to any Iranian who wants to leave their poor oppressive theoocracy? Would the last Iranian to leave please turn out the lights?
If Judge Alito (a conservative) replaces Justice O'Connor (a moderate conservative), that probably would shift the court in some measure to the right. When Justice Ginsburg (a moderate liberal) replaced Justice White (a mixed bag, moderately liberal on some things, centrist on some, conservative on most culture war issues, including abortion, the Establishment Clause, and gay rights), that shifted the court in some measure to the left. But, according to David Boaz, writing in Reason:
In the past three months, the major media have repeatedly hammered away at the theme that Judge Samuel Alito Jr. would "shift the Supreme Court to the right" if he replaced retiring Justice Sandra Day O'Connor.
According to Lexis/Nexis, major newspapers have used the phrase "shift the court" 36 times in their Alito coverage. They have referred to the "balance of the court" 32 times and "the court's balance" another 15. "Shift to the right" accounted for another 18 mentions.
Major radio and television programs indexed by Lexis/Nexis have used those phrases 63 times. CNN told viewers that Alito would "tilt the balance of the court" twice on the day President Bush nominated him. NPR's first-day story on "Morning Edition" was headlined "Alito could move court dramatically to the right." ...
[But around the time of the Ginsburg appointment, n]ot a single major newspaper used the phrases "shift the court," "shift to the left," or "balance of the court" in the six weeks between Clinton's nomination and the Senate's ratification of Ginsburg. Only one story in the Cleveland Plain-Dealer mentioned the "court's balance," and that writer thought that Ginsburg would move a "far right" court "toward the center."
The only network broadcast to use any of those phrases was an NPR interview in which liberal law professor Paul Rothstein of Georgetown University said that Ginsburg might offer a "subtle change ... a nuance" in "the balance of the court" because she would line up with Justice O'Connor in the center....
Clayton Cramer writes:
I suppose that they could have arrested him for public drunkenness, but they picked the far more serious offense:
A final-year Oxford University student from Belfast who called a mounted policeman’s horse gay will not be prosecuted, it was announced today.
Police stood by their decision to take Sam Brown (aged 21) to court for making “homophobic comments” after the Crown Prosecution Service today dropped the case.
Mr Brown approached the officer during a night out with friends in Oxford after his final exams, and said: “Excuse me, do you realise your horse is gay?”
Moments later, two Thames Valley Police squad cars appeared in the High Street and Mr Brown was arrested under section five of the Public Order Act for making homophobic remarks.
His remarks were deemed likely to cause harassment, alarm or distress.
To who? The horse? Apparently, the police were afraid that these remarks would have been offensive to those passing by:
A spokesman said: “We present the case to the CPS and the CPS make the decision to proceed or not.
“He made homophobic comments that were deemed offensive to people passing by.”
So far, so good -- an important illustration of how English law potentially restricts free speech (and why we might want to resist calls for the importation of foreign free speech norms into the U.S.). Yet here's what Mr. Cramer closes with:
You wonder on which side the ACLU would have been if a similar law and case presented itself. On the side of the drunken student's free speech rights? Or the right of the community to not hear ideas that offend?
Well, you might wonder this -- if you didn't know the ACLU's record on criminal prosecutions for bigoted speech. But if you did know it, or you decided to investigate it instead of wondering, you'd find:
In the highest-profile Supreme Court case of the last 15 years that dealt with criminal punishment for bigoted speech -- R.A.V. v. City of St. Paul (1992) -- the ACLU (both the national group and the local chapter) filed an amicus brief defending the right to say bigoted things. "[A] ban on expressive activities that 'arouse anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender' cannot be reconciled with our society's commitment that 'debate on public issues should be uninhibited, robust, and wide-open ....'" "It is tempting to say that the message conveyed by even the public burning of a cross during a political rally" -- the case involved racist crossburning, though the logic of the ACLU's argument applied to all bigoted speech -- "is so offensive, so hurtful, and so antithetical to the ideal of equality, that it ought to be subject to prohibition without the need for rigorous scrutiny of whether it crosses some First Amendment line from protected advocacy to unprotected threats or intimidation. The Constitution, however, does not tolerate such shortcuts."
In another recent case involving bigoted speech, Virginia v. Black, the local ACLU chapter likewise argued that bigoted speech is protected unless it fits within the threat exception or the incitement exception (or, possibly, the exception for face-to-face personal insults that are likely to start a fight). There, the ACLU was among the lawyers for the defendants.
The above two cases are most relevant to predicting the ACLU's position on the matter that Mr. Cramer points to -- criminal prosecution for offensive bigoted speech. But even if one looks to noncriminal penalties, and focuses on the highest-profile bigoted speech controversy of the last two decades, campus speech codes, one finds that the ACLU has supported free speech protection. (Three local chapters in California didn't take this view, but the national ACLU did.)
The ACLU has unfortunately supported speech restrictions under the rubric of workplace harassment law, though Nadine Strossen, the ACLU's President, publicly dissented from that position; but, even more unfortunately, the ACLU here is simply in the legal and social mainstream (for my dissenting views, see here, though even I would accept some restrictions on one-to-one insulting speech). In any event, it is the ACLU's past positions in cases involving criminal punishment of speech on the street that seems to be the best predictor of its future position in a case involving criminal punishment of speech.
So it seems to me that there's little call to imply that the ACLU would oppose protection of free speech in the case that Mr. Cramer describes. Those familiar with the ACLU's past position in such cases should see that pretty clearly.
All Related Posts (on one page) | Some Related Posts:
The Commission on Human Rights ... [u]rges States to take resolute action to prohibit the dissemination through political institutions and organizations of racist and xenophobic ideas and material aimed at any religion or its followers that constitute incitement to discrimination, hostility or violence ...
So harsh criticism of Scientology should be outlawed (unless somehow the government is empowered to decide that it's not a "real" religion). So would harsh criticism of Catholicism — which may well urge hostility to Catholic teachings and the Catholic hierarchy — on the grounds that it supposedly oppresses women or homosexuals. So would harsh criticism of militant Islam. Religious ideas and religious institutions, which are often among the most important and influential ideas and institutions, would thus be legally protected from strong condemnation, condemnation that in many instances (though of course people disagree on which instances) is entirely merited.
Perhaps not coincidentally, the UN High Commissioner for Human Rights, Louise Arbour, has recently publicly condemned a Danish newspaper that published a dozen drawings of Mohammed, some of which were pejorative and all of which were seen as blasphemous by many Muslims (since at least some strains of Islam prohibit depictions of Mohammed). Arbour said that she "deplore[d] any statement or act showing a lack of respect towards other people's religion," and "appointed to UN experts in the areas of religious freedom and racism to investigate the matter." The High Commissioner's office has "asked Danish Prime Minister Anders Fogh Rasmussen for "an official explanation," including asking "the Rasmussen government to respond to the question, 'Do the caricatures insult or discredit?'" If this were just the UN using its own megaphone to express its views, that would be troubling enough. But against the backdrop of the resolutions urging governments to legally suppress "xenophobic ideas and material aimed at any religion or its followers that constitute incitement to ... hostility," the call is even worse.
This also reminds me of my posts from 2003 and 2005 on how emerging "international law" principles can erode the Bill of Rights; as Prof. Peter Spiro, one of the leading U.S. international law scholars wrote in one of the leading U.S. law reviews, the President and the Senate can, in the long run, "insinuat[e] international law" that would create "a partial displacement of constitutional hegemony" (for instance, with "an international norm against hate speech ... supply[ing] a basis for prohibiting [hate speech], the First Amendment notwithstanding"). "In the short term," international norms would and should be "relevan[t] ... in domestic constitutional interpretation." But "In the long run, it may point to the Constitution's more complete subordination."
And the article was both defending the notion that treaties should be able to trump constitutional rights — "If some constitutional norms are more appropriately set at the international level" (and he believes they are), "that should justify a treaty power that, in some cases, overcomes even the Bill of Rights" — and predicting that treaties will over time do so. Courts, he acknowledges, would try to "maintain the formal hegemony of the domestic constitution," but "this formal hegemony may disguise a loss of domestic constitutional autonomy over the long run." "Constitutional rights 'adjusted' by treaty norms are changed by them. The Constitution is read to conform with the treaty."
What's more, I've heard international law fans urge that U.S. constitutional decisionmaking should be informed not just by express statements in treaties that the U.S. has signed and ratified, but also by international practice outside treaties, by statements in treaties that the U.S. hasn't signed or hasn't ratified, and by actions of international bodies established pursuant to treaties that the U.S. has ratified. What U.N. commissions say and do may thus ultimately affect not just international politics, but the constitutional rights of Danes, Americans, and anyone else who has a broader view of free speech than the U.N. seems to endorse. That's reason, I think, to pay close attention to how international institutions are trying to establish norms that demand suppression of free speech.
All Related Posts (on one page) | Some Related Posts:
- Daily Illini Fires Editor Who Published the Mohammed Cartoons:
- President of Bar Association in Pakistan, Plus Major Pakistani Party, Supports Murder of Danish Cartoonists:
- The Twelve Mohammed Cartoons, in Detail:...
- U.S. State Department on the Cartoons Depicting Mohammed:
- Bush Cabinet Member Condemns Anti-Christian Blasphemy, and Points to Laws Restricting Incitement to Hateful Expressions:
- Suppressing Anti-Religious Speech -- an Emerging International Law Norm?
The following words were the answers to one round of puzzles at the 2006 MIT Mystery Hunt (just getting these answers took the ~20 people on my team several hours):
These answers, when combined in the proper way, lead to a one-word "meta-answer." What is that meta-answer?
(Thanks to the Mystery Hunt for this challenge. This "meta-puzzle" was conceived by long-time VC reader Noah Snyder and implemented by Roger Ford.)
HINT: The answer is an eight letter word. Adam's comment is correct. Try putting the given words in some logical order and see where that leads you.
I thought I'd pass along another excerpt from my new Deterring Speech: When Is It "McCarthyism"? When Is It Proper? (93 Cal. L. Rev. 1413 (2005)); I omit the footnotes, but they're all in the PDF; if you wonder whether one of my assertion is well-supported, please check the footnotes first to see if they may answer your question. Next week, I'll probably blog excerpts on economic retaliation against speakers who are commentators rather than entertainers, and then on economic retaliation against other employees.
The blacklist is back, we are told. After Natalie Maines, lead singer of the country music band the Dixie Chicks, told fans during a London concert, “[W]e’re ashamed the President of the United States is from Texas,” many stations stopped playing her music, and some stations organized rallies at which Dixie Chicks CDs were crushed by bulldozers. MCI stopped using actor Danny Glover in its commercials, apparently because he signed various statements that harshly opposed the Iraq war and defended Fidel Castro. Susan Sarandon and Tim Robbins were disinvited from speaking engagements because of their opposition to the war in Iraq; Sean Penn apparently lost an acting role for the same reason.
How should we react when private entities economically retaliate against people based on their speech, or citizens urge those entities to do this? The retaliation is generally legal. Though some state laws restrict employers’ power to retaliate against employees for their political speech, I know of no laws that restrict companies’ power to retaliate against truly independent contractors. Moreover, media organizations may have a constitutional right to fire their employees for their political views, even if state law prohibits such firings. Calls for such retaliation by the public are likewise constitutionally protected. But are economic retaliation and calls for retaliation proper, or should we develop social norms against them? This, it seems to me, is a hard question, but let me offer a few observations.
Let me start by focusing on speech by entertainers. Entertainers are valued speakers because people like them. Danny Glover makes a good pitchman for MCI because people feel good about him: If MCI simply wanted someone who could act well in its commercials, it could have hired a nameless actor for much less. Susan Sarandon was invited to speak to the United Way because people want to hear the well-liked movie star Susan Sarandon, not because Sarandon is a national expert on women in volunteerism. People go to movies largely because they like the stars’ work, but also because they like the stars or at least like the image that the stars project; the same is true for musicians. That’s a big part of why entertainers have publicists.
When people stop liking you, whether because they think that you’re rude, vulgar, or foolish, your value as a speaker or pitchman falls. People are less likely to want to hear you or buy products that you promote. Those who hire you, invite you, or play your music might understandably switch to someone who alienates fewer audience members. What you gain from your sex appeal, coolness, or association with worthy causes, you lose from what people see as your rudeness, folly, hostility to projects they support, or association with causes they dislike. Tolerance demands that people neither beat you up for your views nor throw you in jail for them. But it doesn’t demand that people continue to like you—and if they don’t like you, then you won’t be as effective a promoter.
Naturally this may lead entertainers to think twice before expressing controversial views. The boycott against Florida orange juice because of spokeswoman Anita Bryant’s anti-gay stand surely taught many entertainers that. But if your livelihood turns on people’s affection for you, you can’t protect that affection while saying things that turn people off. And tolerance doesn’t require that people buy products promoted by celebrities whom they’ve come to distrust, hear songs by singers whom they no longer enjoy, or listen to speeches by entertainers who they’ve concluded are fools.
And just as entertainers derive much of their income from the public’s affection for them, they also derive much of their political clout from such affection and from their successes in fields quite unrelated to politics. Danny Glover’s signature on the anti-Iraq-war letter was valuable because he was a movie star, not because he was learned on international law. Natalie Maines had a large audience for her expression of contempt for President Bush because she was invited to sing, not because she was invited to deliver a political lecture.
Consumers know that by supporting Natalie Maines, they are indirectly helping support Maines’ political message, just as consumers know that by supporting a business, they are indirectly helping support the projects that the business or its owner funds. It seems quite legitimate for consumers to withdraw their support of entertainers and to use their economic power to pressure others to withdraw their support. Groups have organized consumer boycotts of businesses that contribute to Operation Rescue, to pro-life candidates and ballot measures, and to Planned Parenthood; others have pressured businesses to stop advertising on conservative Sinclair Broadcasting. Consumer retaliation against entertainers seems equally legitimate when a celebrity supports a cause by using her fame, rather than a business supporting a cause by using its money.
Related Posts (on one page):
- Private Economic Retaliation Against Speakers (Here, Commentators) Based on Their Speech:
- Private Economic Retaliation Against Speakers (Here, Entertainers) Based on Their Speech:
Thursday, January 19, 2006
Here is the administration's argument in a nutshell:
First, the President has inherent constitutional authority to order foreign intelligence surveillance monitoring. The President's core job is to protect the country against foreign attack. The 9/11 attacks made this interest particularly strong: Al Qaeda is a clandestine enemy, and we need to gather intelligence to stop them. The Authorization to Use Military Force further emphasized this power: it brought foreign intelligence surveillance from Steel Seizures Category II to a Steel Seizures Category I, in which the President's authority is at a maximum. The AUMF confirms and bolsters the President's authority; under the test announced in Justice O'Connor's concurrence in Hamdi, foreign intelligence surveillance is a classic "fundamental incident of war" that the AUMF authorizes. The combination of the President's Commander-in-Chief power and Congress's explicit authoritization in the AUMF gives the President full authority to conduct this monitoring.
Further, the monitoring doesn't violate FISA and also complies with the Fourth Amendment. FISA itself is on fragile constitutional ground, and in any event the AUMF is a "statute" that authorizes the monitoring. Further, the so-called exclusivity provision of the wiretap act, 18 U.S.C. 2511(2)(f), doesn't trump this commonsense result. The legislative history of the section was focused on the notion of Congressional authorization, which the AUMF provided, and a contrary reading would create serious constitutional questions. The canon of constitutional avoidance requires construing the statutes to allow this sort of surveillance: the constitutionality of a statutory prohibition on such monitoring presents very difficult questions, as the NSA activities lie at the core of the Commander in Chief power. There are few guideposts here, and courts should construe the statute in a way to avoid having to reach these difficult constitutional questions. FISA is unconstitutional to the extent it directly interferes with the President's constitutional duty, and it would be prudent to construe the statute in a way that avoids these constitutional questions.
Finally, the monitoring program fits within the Fourth Amendment "special needs" exception. The rule here is reasonableness, which requires a balancing of governmental and privacy interests. The program is reasonable: the government's interest in thwarting a future attack is overwhelming, and the monitoring itself has been tailored and subject to considerable internal review.
Anyway, that's the basic argument. I hope to post some analysis of it soon.
We're all just guessing here, of course. But my sense is that Alito is less conservative -- both politically and methodologically -- than a lot of people seem to think. This means that if you're on the left, you probably have less to fear from a Justice Alito than you expect. On the other hand, if you're on the right, you're probably going to end up a bit disappointed. If we want to break it down to the question of results, my guess is that he'll generally end up somewhere to the right of Kennedy, and either close to or slightly to the left of Roberts.
I'm basing my guess on two sources of information First, it was the impression I had of Alito when I was a Third Circuit law clerk. I clerked in 1997-98, and assisted on some panels in which Alito participated. Alito struck me as right-of-center, but very institutionalist. As Judge Garth (who ought to know) said in his Senate testimony, "Make no mistake, he is no revolutionary."
Second, I think the testimony of Alito's colleagues and former law clerks (of all ideological stripes) is particularly telling. If Alito were in fact a revolutionary, or had a big agenda, surely it would have come out at one point or another: It seems unlikely to me that an agenda-driven judge can keep that agenda secret from his colleagues and clerks for 15 years on the bench. Maybe it's humanly possible, but I don't think it's very likely.
Anyway, that's my best guess. I look forward to the comment thread.
Asked what kind of judicial conservative he is, Alito endorsed the doctrine of inflexible originalism, which says that the Constitution should be strictly interpreted in light of the original understanding of its Framers and ratifiers. Inflexible originalists, such as Clarence Thomas, are willing to uproot a great deal of well-settled precedent and practice--including much of the post-New Deal regulatory state--on the grounds that it is inconsistent with an eighteenth-century understanding of the scope of national power. "I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption," Alito said.I went back to the transcript to get Alito's complete statement, and it seems to me that TNR's description is rather misleading. Senator Brownback had asked Alito, "Could you articulate your view of how you look and interpret the Constitution?" Here is Alito's response:
In interpreting the Constitution, I think we should proceed in the way we proceed in interpreting other important legal authorities; in interpreting statutes, for example. I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption.The New Republic editors look at this answer and conclude that Alito "endorsed the doctrine of inflexible originalism, which says that the Constitution should be strictly interpreted in light of the original understanding of its Framers and ratifiers." But as I see it, Alito was saying something else: he was suggesting that you start with text and original public meaning, but then abstract the fundamental principle that is embodied in that text and apply that principle to the situation at hand. As Alito put it, "times . . . change, new questions . . . come up." Whether Alito's approach is right or wrong, it seems rather different from TNR's description of it.
But I think we have to recognize that the Constitution is very different from statutes in some important respects.
Statutes are often very detailed, and they generally don't exist without revision for very long periods of time.
The Constitution was adopted to endure throughout the history of our country. And considering how long our country has existed, it's been amended relatively few times.
And the magic of that, I think, is that it sets out a basic structure for our government and protects fundamental rights. But on a number of very important issues, I think the framers recognized that times would change, new questions would come up. And so they didn't purport to adopt a detailed code, for example, governing searches and seizures. That was the example I gave yesterday, and I'll come back to it.
They could have set out a detailed code of search and seizure; they didn't do that. They said that the people are protected against unreasonable searches and seizures, and they left it for the courts — and, of course, the legislative body can supplement this — to apply that principle to the new situations that come up.
Now, when that is done, that doesn't amount to an amendment of the Constitution or a changing of the Constitution. It involves the application of a constitutional principle to the situation at hand.
At Northwestern Law School at noon today, Senator Dick Durbin, the second ranking Democratic member of the Senate, announced that he would vote "No" on the nomination of Judge Alito to the United States Supreme Court.
In response to a question from an audience of Northwestern law students and faculty, Durbin disclosed that the Senate leaders were counting votes, not only on Alito's nomination, but on the possibility of a filibuster: "At this point, I wouldn’t want to project whether we will have a filibuster.”
On the nomination more generally, Durbin said that one Democrat, Ben Nelson of Nebraska, had publicly indicated that he would vote for Alito, and one undisclosed Republican Senator had privately indicated that he or she would probably vote against Alito.
In a brief press conference after the speech, Senator Durbin asserted about the Alito nomination: "Whether it will lead to a filibuster, I will be able to give you a better idea next week." He also declined to disclose whether he favored a filibuster. Durbin argued that members of the Senate have to draw their own conclusions on "whether to take it to that step." He elaborated: "If you don't have the numbers, you don't have the votes." It's "unclear whether we have 41 Members who are willing to stand up for that fight."
Most ideas can be stated clearly and in an accessible manner. I often find that a lot of academic scholarship, when boiled down to its ideas, is relatively straightforward and simple. Of course, we academics like to dress up our ideas to make them sound more elaborate, complex, and obtuse. But in the end, most ideas are simple. Often, however, our prose doesn't invite people into our ideas but shuts them out. Perhaps we fear that if our articles didn't take a lot of effort to plod through they wouldn't seem as profound. If more people could understand them, then perhaps we're not sophisticated enough as scholars. If we wrote in a lively and clear manner, then too many people might understand our ideas, and we might risk the perception that our ideas were too obvious and simple.Maybe the answer is more lawprof bloggers. Blogging pushes you to write clearly and simply; the format rewards clarity of expression more than traditional law review articles do.
Here's a question I just posed to a con law profs' discussion list; it strikes me as genuinely quite difficult, partly because the Supreme Court hasn't squarely confronted what rules should apply to facially content-neutral restrictions on newsgathering (as opposed to communicating the gathered news):
California Education Code 66450 provides that, generally speaking no person "shall prepare, cause to be prepared, give, sell, transfer, or otherwise distribute or publish, for any commercial purpose, any contemporaneous recording of [a normal public university class] . . . . This prohibition applies to a recording made in any medium, including, but not necessarily limited to, handwritten or typewritten class notes." "Commercial purpose" is defined to mean "any purpose that has financial or economic gain as an objective."
Say that The Davis Enterprise, a newspaper in the town that hosts UC Davis, has heard from students that some instructors are saying sexist and anti-gay things in their classes. They therefore try to get tape recordings of the classes so they can hear for themselves, and quote the material accurately and in context. But they can't just send in a staff reporter (since nonstudents generally aren't allowed to sit in on lectures), and students are reluctant to tape the class for free: "You folks are a for-profit venture," students they approach tell them, "and you get paid a salary for your work. If you want us to be your researchers, hire us as your researchers." They therefore hire some students as part-time researchers, whose job is to record the classes, and -- if the professors indeed say sexist or anti-gay things -- to pass along the tapes.
UC Davis tries to stop this, arguing that the practice violates the statute. Though the statute was seemingly enacted to bar people from taping and then reselling the tapes to classmates or to would-be students who don't want to pay the money to go to school, it on its face also seems to cover compensated taping for news-gathering purposes.
Is the statute constitutional, as applied to this form of news gathering?
I'd love to see in the comments some detailed legal analyses of the questions, but please comment on this post only if you are well-acquainted with First Amendment precedents. I'm interested both in analysis under current doctrine and the possible creation of new doctrine, but I'd like to see rules that are practically plausible, which generally requires that they fit well with the general fabric of First Amendment law -- hence my preference that the discussion be limited to people who know that fabric well.
Wednesday, January 18, 2006
With thanks to reader David Torrente, who pointed out some that are new to me, here are some blogs following the housing bubble and its deflation: http://bubblemeter.blogspot.com/
And from the MSM:
I've been looking at a few of these blogs occasionally, and they are doing a much better job at covering what's going on in the housing market than are major media outlets (they do tend to focus on the bad news, but except for the fact that long-term interest rates have stayed pretty stable, there hasn't been a lot of good news for the housing market since the Summer.)
Here's an example of why I think the UCLAProfs.com site is often shallow and unpersuasive, though as I note below I think some of the "those McCarthyites" criticisms of it are unpersuasive, too. From the front page of the site:
There's Something About Petitions
Given the vast number of radical petitions UCLA professors have signed in recent years, much of our university's faculty apparently follows a variation of Descartes' famous statement, Cogito, ergo sum (I think therefore I am): Signo, ergo sum, (I sign, therefore I am).
Preliminary UCLAProfs.com research has uncovered nearly 500 faculty signatures on petitions, open letters and public statements which take a wide variety of radical positions: anti-Israel, anti-Bush, anti-war. The list also demonstrates that a large number of UCLA professors are ardently in favor of affirmative action, and just as ardently opposed to conservative legal nominees, even opposing fellow alumni like Justice Janice Rogers Brown.
Various faculty profiles that I saw on the site also stress those petitions.
1. The irrelevant data: Nearly 500 signatures (not 500 separate faculty members, but 500 signatures) on various petitions. And this matters because . . .?
2. More irrelevant data: "A large number of UCLA professors are ardently in favor of affirmative action, and just as ardently opposed to conservative legal nominees." So? In a faculty of thousands, of course there'd be a large number of UCLA professors ardently in favor of affirmative action. They're entitled to hold such views; why is it that important that they do hold such views? It doesn't show that the faculty is disproportionately left-wing. (It may well be, and certainly is in many departments, but we know that from other sources. That "a large number of UCLA professors" supports affirmative action is not evidence of that, given what a small fraction of UCLA professors must be in their petition signatories dataset.)
3. The putdown that's really a compliment: "... even opposing fellow alumni like Justice Janice Rogers Brown." Jeez, school spirit is all well and good, but it's hardly a sign of poor character that some people don't let their public policy judgment be swayed by school loyalty.
4. The exaggerated rhetoric: "[R]adical positions: anti-Israel, anti-Bush, anti-war" -- since when was being anti-Bush, a view that roughly half (if not more) of the population takes a "radical position"? Likewise as to opposition to the war or opposition to Israel. Now there are surely radical versions of those positions, and doubtless some of my colleagues hold them. But simply labeling "anti-Israel, anti-Bush, anti-war" as "radical positions," with no explanation of what's radical about them, is a self-caricature of conservatism.
As I've said before, it's perfectly legitimate to criticize professors. People even have the First Amendment right to do so unfairly, shallowly, and exaggeratedly. But such weakly reasoned criticism is hardly laudable -- and, I think, it usually (and especially in this instance) is likely to be counterproductive.
There's been much written in the last day or so about UCLAProfs.com, a site that criticizes supposedly extreme left-wing UCLA professors, and that "is offering students payments of up to $100 per class to provide information" — especially audiotapes — "on instructors who are 'abusive, one-sided or off-topic' in advocating political ideologies." My colleague Stephen Bainbridge has more.
I've checked out the site, and find many of the criticisms to be quite shallow and unpersuasive. (I should note that I've informally responded to some questions by the site's author in the past, but I doubt that I'd do so in the future, given the pretty low quality of the materials.) I also do think the offering of money to students is a bit unsavory, though I'm not positive how bad it is; much information-gathering, after all, is done by people who get paid, and sometimes get paid in rough correlation to the stuff they unearth. My colleague Jerry Kang points out that tape recording for money might violate a specific California statutory provision; it's an interesting question whether applying the law to tape recordings in this context (which is also far from the context that seems to have animated the enactment of the law) would be an unconstitutional burden on information gathering.
Nonetheless, I do think we need to put all this in perspective. My colleagues and I are public servants. We have a certain degree of influence over public affairs, both through our public commentary and through our teaching. Others disagree with us, and think we're doing a public disservice rather than a public service. They're entitled to criticize us, and to monitor our public performance of our duties to see whether that performance is, in their view, lacking. I try to imagine what I would think if someone from the Left set up a site to criticize Prof. Bainbridge, me, and my (rather few) conservative colleagues, and to solicit concrete evidence of our supposed misdeeds; I would like to think that I would recognize that this was their right, both legally and ethically.
Now it's true that this may have a "chilling effect" in the sense of deterring some people from saying controversial things, in class or outside it. But all criticism has such an effect; much criticism is intended to have such an effect. It's even good when criticism has such a deterrent effect, for instance when it deters us from saying foolish or unsound things. If you criticize my posts, my articles, or my lectures, and I recognize that your criticism is apt — that my lectures were too partisan, or that my arguments were unsound — then I may well change what I say. That's criticism performing its proper function.
And if I think your criticism is unsound, my duty is to remain undeterred. It's not always an easy duty to fulfill. But look: Most of my colleagues have tenure. Even our untenured colleagues have the protection of being reviewed by their peers, and peers who are generally unlikely to much sympathize with what the UCLAProfs.com site says. We're in a much better position than other public servants, who routinely have to deal with criticism. If we're not robust enough to resist unsound criticisms — if we're deterred from saying certain things even when we think they should be said — what's the point of all the employment protections we have?
If people are criticizing us unfairly, we should fault them for that. (Stephen Bainbridge does so, for instance.) But labeling this (as one professor quoted here did) "a reactionary form of McCarthyism" strikes me as no more sound or effective than the pejoratives that UCLAProfs.com sometimes uses itself. As Prof. Bainbridge points out, "If you can't tell the difference between the abuse of position by a United States Senator backed by the coercive power of the state and the exercise of free speech by a bunch of disgruntled alumni, well...."
UPDATE: Stephen Bainbridge writes more about the power of technology, and closes with this:
Getting feedback from the proletariat is always unsettling for authority figures . . . . The initial and, perhaps natural, reaction is to decry it as McCarthyism and a danger and so on.
Upon mature reflection, however, we have to realize that the world has changed. Those over whom we have authority now have at their disposal technology that gives them a very loud megaphone. Very public criticism has become the lot of all authority figures, including those within the ivory tower.
Much of that criticism will be unfair, uninformed, or just plain dumb. Isn't it Sturgeon's Law that says 90% of everything is crap? But so what? As my friend and colleague Eugene Volokh notes [quote of the "if I think your criticism is unsound, my duty is to remain undeterred" paragraph omitted -EV].
Precisely. And so I say to my colleagues: Welcome to the 21st Century. It's going to be a very bumpy ride.
From the AP:
SAN JOSE, Calif.--A couple who planted a severed finger in a bowl of Wendy's chili in a scheme to extort money from the fast-food chain were sentenced Wednesday to prison terms of nine years and more than 12 years.And in case you were wondering:
Anna Ayala, 40 years old, who claimed she bit into the digit, was sentenced to nine years in state prison. Her husband, Jaime Plascencia, 44, who obtained the finger from a co-worker who lost it in a workplace accident, was sentenced to more than 12 years.
The pair pleaded guilty Sept. 9 to conspiracy to file a false insurance claim and attempted grand theft with damages exceeding $2.5 million.
A lengthy search for the finger's owner eventually pointed to one of Mr. Plascencia's co-workers, who lost it in an accident at the paving company where they worked, police said. Mr. Plascencia bought the tip of Brian Rossiter's right ring finger for $100 and told him what he and Ayala were plotting, according to court documents. Mr. Rossiter later told police the couple offered him $250,000 to keep quiet.Ewwwww.
As for the Defendants:
During a recorded jailhouse phone call, Ms. Ayala bragged about how other inmates were asking for her autograph, according to a transcript of the call.
As I observed a few months ago, one predictable loser in the post-Kelo aftermath would be tax-exempt organizations such as churches. Tom Blumer reports on the case of the Centennial Baptist Church which stands in the path of a new Home Depot in Sand Springs, Oklahoma.
By pure coincidence, the new strip mall just has to go exactly where the church is located, rather than, say, on the site a nearby McDonald's and muffler shop. Tom has the maps--it looks like the church is right in between the McDonald's and the muffler shop.
I suspect this won't be the last we hear of churches in the crosshairs of governments taking land and giving it to commercial developers. Small, minority, poor, and unpopular religions and charities would seem to be especially vulnerable to the wrecking ball.
More from Professor Bainbridge (who previously described a similar situation in LA involving a nonprofit animal shelter), Christine Hurt, who asks, "What's Liberal About Eminent Domain?" and Peter Lattman at the WSJ Law Blog, who describes Eminent Domain as "Business Law’s Angelina Jolie" (taking off on this article in today's NY Times).
Tuesday, January 17, 2006
The argument promises to be fascinating. The defendant's brief makes a direct textual and historical challenge to the very concept of anticipatory warrants, and it's the kind of argument that I think should be very appealing to Justices Scalia and Thomas. The argument is that the Fourth Amendment's warrant clause means what it says: "no Warrants shall issue, but upon probable cause." Anticipatory warrants are warrants issued before probable cause exists; the idea is that when a future event occurs, probable cause will exist, so the police can execute the warrant whenever it happens.
There are reasonable policy arguments for why anticipatory warrants don't disrupt this scheme very much, at least if regulated carefully; Justice Breyer endorsed them back when he was on the First Circuit. But my guess is that Scalia and Thomas are going to focus heavily on the text of the Fourth Amendment instead of the policy arguments, and a few other Justices are going to be worried about how anticipatory warrants can water down the warrant requirement. Stay tuned.
Justice Kennedy's majority opinion flaty rejected the Bush Administration's broad claims to executive authority, dismissing the Administration's position as a "radical shift" to claim "extraordinary" and "unrestrained" power:
[T]he Attorney General claims extraordinary authority. If the Attorney General’s argument were correct, his power . . . would be unrestrained. It would be anomalous for Congress to have so painstakingly described the Attorney General’s limited authority . . . but to have given him, just by implication, authority [over] an entire class of activity . . . .Justice Kennedy rejected claims made on behalf Attorney General Alberto Gonzales that the Executive Branch had independent authority to interpret federal law: "The statutory terms. . . do not call on the Attorney General, or any other Executive official, to make an independent assessment of the meaning of federal law." "The idea that Congress gave the Attorney General such broad and unusual authority . . . is not sustainable." The Court's opinion ended with a particularly harsh rebuke of the Administration's claims of broad executive power and reemphasized the role of Congress:
The Government, in the end, maintains that the [statute] delegates to a single Executive officer the power to effect a radical shift of authority . . . . The text and structure of the [statute] show that Congress did not have this far-reaching intent to alter the [institutional] balance and the congressional role in maintaining it.Justice Scalia dissented, joined by Chief Justice Roberts and Justice Thomas. Scalia argued that it was proper to defer to the Executive Branch's efforts to protect public safety, noting that from "an early time in our national history, the Federal Government has used its enumerated powers" to protect such interests.
(Okay, so the case today involved assisted suicide, not enemy combatants or the NSA surveillance program. Still, the language in Kennedy's majority opinion is pretty interesting, isn't it?)
Some people have faulted the ACLU for failing to file friend-of-the-court briefs (also known as "amicus briefs") in certain free speech cases -- this, they've argued, shows that the ACLU doesn't really support free speech, at least of the sort involved in those lawsuits (for instance, religious speech). I've blogged before about why this is wrong, but I'd like to elaborate on this further, because it might help people understand the proper role of amicus briefs.
When are groups supposed to file amicus briefs? Not just when the case involves something that the group cares about; rather, they're generally supposed to do it only if they have something valuable to add that the parties and that other amici aren't already saying. This is what my two favorite public interest law firms, the libertarian Institute for Justice and the conservative-libertarian Center for Individual Rights (which in turn credits IJ), call the "Mr. Ed rule." Here's Scott Bullock from IJ:
We have long followed what we call the "Mr. Ed" rule on amicus briefs. . . . Mr. Ed (the talking horse) only spoke "when he had something to say." And that is our approach. We don't do amicus briefs unless we feel like we can bring a unique perspective, voice, or insight into the case. . . .
And here's Michael Rosman of CIR:
[W]e prefer to be involved in a case by representing parties. Accordingly, our official policy is that we file amicus briefs infrequently, and only if we believe that we have something to say that is of interest and that will not be said by the parties to the litigation. . . .
That's (1) a sensible allocation of the group's resources; amicus briefs take time and effort to produce, and most public interest organizations are already stretched pretty thin. But (2) it's also how courts ask groups to behave.
That's made explicit in Rule 37.1 of the U.S. Supreme Court Rules:
An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.
Rule 29 of the federal Rules of Appellate Procedure, which applies to the federal courts of appeals, likewise states:
The motion [for leave to file an amicus brief] must be accompanied by the proposed brief and state . . . the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.
The Advisory Committee notes accompanying the rule make clear that "relevance" refers to the same standard as that given in Supreme Court Rule 37.1. ("The former rule only required the motion to identify the applicant's interest and to generally state the reasons why an amicus brief is desirable. The amended rule additionally requires that the motion state the relevance of the matters asserted to the disposition of the case. As Sup. Ct. R. 37.1 states: 'An amicus curiae brief which brings relevant matter to the attention of the Court that has not already been brought to its attention by the parties is of considerable help to the Court. An amicus curiae brief which does not serve this purpose simply burdens the staff and facilities of the Court and its filing is not favored.' . . .")
Now sometimes groups do file briefs just because they feel a burning need to participate in a case -- perhaps because they want to impress donors, or because they think their very name might help influence the judges. But that's not what courts really want them to do, and it's both expensive and possibly counterproductive (since judges might get annoyed when they feel that a group is wasting the judge's time by filing briefs that add nothing really new). It also wastes the time of lawyers on the other side, who have to read the briefs closely and figure out whether they indeed have anything to say.
So keep that in mind when you're criticizing a group for not filing an amicus brief. If you can find evidence that, for instance, the ACLU failed to file an amicus brief in a religious speech case because it thought religious speech shouldn't be protected, you can certainly fault the ACLU for having such a mistaken view. But the ACLU's failure to file an amicus brief does not by itself reveal the ACLU's substantive views: It may well be that Mr. Ed just didn't think he had anything really helpful to say.
The AP reports (thanks to reader Dan Schmutter for the pointer):
Mayor Ray Nagin apologized Tuesday for a Martin Luther King Day speech in which he predicted that New Orleans would be a "chocolate" city once more and asserted that "God was mad at America."
"I said some things that were totally inappropriate.... It shouldn't have happened," Nagin said, explaining he was caught up in the moment as he spoke to mostly black spectators, many of them fearful of being shut out of the city's rebuilding.
During the speech Monday, Nagin, who is black, said that the hurricanes that hit the nation in quick succession were a sign of God's anger toward the United States and toward black communities, too, for their violence and infighting. He also said New Orleans has to be a mostly black city again because "it's the way God wants it to be."
On Tuesday, Nagin said his comments about God were inappropriate and stemmed from a private conversation he had with a minister earlier. "I need to be more sensitive and more aware of what I'm saying," he said.
The mayor said his speech was really meant to convey that blacks were a vital part of New Orleans' history and culture and should be encouraged to return. "I want everyone to be welcome in New Orleans -- black, white, Asian, everybody," he said.
Nagin said the other main point he had hoped to make Monday was that when blacks do return, they must work to stamp out the crime and political infighting that have held them back....
[Ed Renwick, the director of Loyola University's Institute of Politics said of the remarks,] "It seemed to be another Nagin-being-Nagin. He has a penchant for just speaking off the cuff and not thinking it through.... He also tends to speak to the literal audience he's with at the time instead of the whole world he reaches through the TV, radio and print media."
Very glad to hear about -- and to report -- the Mayor's apology.
I think it's too bad that the ACLU takes a collective rights view of the Second Amendment, and generally doesn't do much to defend state constitutional rights to bear arms. (As readers of this blog might realize, I don't think they're evil or even hypocritical for disagreeing with my interpretation of the Second Amendment, or even for declining to defend the clearly individual state constitutional rights. They're entitled to pick and choose what rights they think are most important to defend, just as the NRA and my two favorite conservative/libertarian public interest law firms, the Institute for Justice and the Center for Individual Rights, are entitled to do the same. I just think the ACLU is mistaken in its views.)
In any case, though, I'm pleased that the ACLU of Texas is taking a pro-right-to-self-defense view; Scott Henson, director of the police accountability project for the ACLU of Texas, testified this Spring -- on the ACLU of Texas's behalf -- in favor of a proposal to let law-abiding citizens carry guns in their cars. The law ultimately passed, and Mr. Henson is now trying to check how well it's being implemented, by filing state open records act requests for any instructions that government agencies are giving police officers about the new law. Sounds like good work to me.
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Last March, Jacques Pluss was fired from his job as an adjunct professor at Fairleigh Dickinson University soon after it came to light that he was a prominent member of the National Socialist Movement of the United States. This weekend, in an online essay titled "Now It Can Be Told: Why I Pretended to Be a Neo-Nazi," Mr. Pluss purports to reveal his true intentions in joining the white supremacist group: He did it all for scholarship. . . .
Citing Jacques Derrida, Michel Foucault, the medievalist Ernst Kantorowicz, and the English Romantic poets, Mr. Pluss says he developed a highly participatory theory of historical investigation. "It slowly yet surely dawned on me," he writes, "that any attempt to understand a group, a movement, or an individual psyche, would have to include becoming, as much as an individual can, the subject under study."
To that end, Mr. Pluss joined the National Socialist Movement in February 2005 and soon began serving as host for a weekly Internet radio show called White Viewpoint, on which he railed against the "browning of America" and described Fairleigh Dickinson's treatment of him as "Hebrew" and "lawyerly." Within a few weeks of joining, he became a national officer of the group. He continued as a member until October. . . .
Perhaps the strangest part of Mr. Pluss's account is his claim that he engineered his own dismissal from Fairleigh Dickinson in order to suffer the kind of public marginalization often experienced by neo-Nazis. . . .
When you combine this news with past reports about Jeremy Blachman and David Lat, I think you begin to see a new career path emerge for unhappy lawyers who are also good writers. If you don't want to practice law, start an anonymous blog on the side. Work on the blog until it develops a big following, and then go public; you can then use the fame from your blog to arrange a book deal or another job as a writer and leave the law behind. It can't work for many people, of course, but it does seem to be working for some.
Phil Carter (a prominent military blogger -- and former law student of mine -- who's now back on active duty in Iraq) comments on the downside of heavy body armor in the UPDATE to this post; the post itself, by Noah Shachtman, is generally pro-armor. I know nothing about the subject myself, but it sounds like Phil and Noah do, so I thought I'd pass along the link.
The lawsuit was filed on behalf of a group of prominent journalists, scholars, attorneys, and national nonprofit organizations (including the ACLU) who frequently communicate by phone and e-mail with people in the Middle East. Because of the nature of their calls and e-mails, they believe their communications are being intercepted by the NSA under the spying program. The program is disrupting their ability to talk with sources, locate witnesses, conduct scholarship, and engage in advocacy.The complaint is available here. The causes of action are the Fourth Amendment, the First Amendment, the Administrative Procedure Act, and a general right against the operation of executive actions alleged to violate the separation of powers.
[NOTE: See UPDATE below, which discussed Mayor Nagin's follow-up statement. FURTHER UPDATE:
If only it were just the name of a new dessert (a la Baked Alaska) — but unfortunately it's not. Rather, it's New Orleans Mayor Ray Nagin's aspiration:
It's time for us to come together. It's time for us to rebuild a New Orleans, the one that should be, a chocolate New Orleans. And I don't care what people are saying uptown or wherever they are. This city will be chocolate at the end of the day.
I don't think this is quite identical to a white politician talking about wanting a "lily Savannah" or some such, but closer to a Chinese-American politician or an Italian-American politician making similar statements about his own ethnicity. While black Americans, Chinese-Americans, and Italian-Americans are hardly entirely culturally homogeneous, there's enough of a shared black American/Chinese-American/Italian-American culture that such references may be seen chiefly as a form of mild cultural chauvinism, rather than outright hostility to other groups. Whites in America, on the other hand, are so immensely culturally varied that aspirations to making some place white or whiter are almost invariably aimed chiefly at derogating other groups, and not at affirming a nonexistent shared white culture. That's why, I think, we'd be somewhat less suspicious about an Irish-American who would like his daughter to marry an Irishman than about a white who would like his daughter to marry another white — I wouldn't be wild about either, but the former seems more animated by excessive love of the Irish, while the latter seems likely to be more animated by dislike of nonwhites.
Nonetheless, Mayor Nagin's sentiments surely aren't very good, either. Cultural chauvinism of this sort may not be the same as outright racism, but neither is admirable, especially when a government official engages in it. (Note that this isn't just a broadly applicable "what a wonderful group you folks are!," which is pretty normal in American politics and mostly unobjectionable because it can be said equally to a wide range of groups, but rather a statement ascribing one color to a city, state, or nation.)
What's more, this isn't just a moral or symbolic concern; it's also a serious practical matter: To thrive, New Orleans has to have investment of time, money, effort, and commitment from nonblacks as well as blacks; the sad fact is that for various reasons black areas already tend to draw less outside investment than they need to thrive. Would expressly stressing — not just as a descriptive matter but as a matter of the local government's aspirations — that those areas are and should be "chocolate" mitigate or exacerbate that condition?
Thanks again to InstaPundit for the pointer to this story.
UPDATE: Thanks to Bob Bobstein for the correction — I originally wrote "more suspicious about an Irish-American" when I of course meant "less." Whoops!
UPDATE: Reader DNL points to a CNN story in which Mayor Nagin elaborates on his comments:
Pressed later to explain his comments, Nagin, who is black, told CNN affiliate WDSU-TV that he was referring to creation of a racially diverse city in the wake of Hurricane Katrina, insisting that his remarks were not divisive.
"How do you make chocolate? You take dark chocolate, you mix it with white milk, and it becomes a delicious drink. That is the chocolate I am talking about," he said.
Well, I appreciate Mayor Nagin's clarification; his second statement suggests that his intentions were far better than those I inferred from the first statement.
Yet whatever his intentions, it seems to me that the meaning that most people would have drawn from the original statement would have been quite different; it just seems to me that that this isn't really how most people would understand references to "chocolate." There are lots of phrases that are generally understood as referring to racial or ethnic diversity or mixing (melting pot, rainbow, salad bowl, and more). "Chocolate," as best I can tell, isn't usually one of them. Still, as I said, at least I'm happy to hear that Mayor Nagin's intentions were good, even if his expression was somewhat inapt.
[UPDATE: Here's an item about Mayor Nagin's apology for this statement.]
Surely God is mad at America. He's sending hurricane after hurricane after hurricane. Surely he's not approval of us being in Iraq under false pretenses.
But surely he's upset at black America also. We as black people, it's time. It's time for us to come together. It's time for us to rebuild a New Orleans, the one that should be, a chocolate New Orleans. And I don't care what people are saying uptown or wherever they are. This city will be chocolate at the end of the day.
(Source: Transcript of video clip aired on MSNBC's The Situation, Jan. 16, 2006; there might have been some editing, but I presume that it didn't change the substance; CNN and also MSNBC's Scarborough Country reports this as "Surely God is mad at America. He's sending hurricane after hurricane after hurricane. And it's destroying and putting stress on this country. Surely he's not approval of us being in Iraq under false pretenses. But surely he is upset at black America also.")
But if God is mad at America, why exactly did he decide to kill, injure, and make homeless this particular chunk of America? Are poor people, who generally suffer the most from natural disasters, particularly likely to be guilty in God's eyes? (Though the dead in Katrina weren't disproportionately poor by New Orleans standards, the dislocation caused by natural disasters generally disproportionately hurts poor people, who are least likely to have savings to fall back on, least likely to have educations and other credentials that would make it easy to start over, and least likely to be adequately insured. Surely God knows that.)
Were those hurt by Katrina particularly able to control America's Iraq policy? Were they particularly able to prevent whatever problems of black America Mayor Nagin is pointing to? Actually, wouldn't Mayor Nagin and his fellow politicians have had more influence (though of course surely not unlimited influence) that could have helped "black America" "come together"? And, if so, why didn't God target them especially? (Or is it that Mayor Nagin was spared because of his righteousness, and others were punished because they were especially sinful? You can't have it both ways — it's either that, or it's that God was punishing people without regard to their own deserts.)
Of course, one possible response is that God works in mysterious ways, and either chooses not to control natural disasters, or sends them for reasons and in manners that are beyond human understanding. But if that's so, then why is Mayor Nagin so confident that God is mad at America, and that the reason is God's disapproval of America's actions in Iraq, or of the actions of black America? And how, if at all, is Mayor Nagin different from Rev. Shanks and Rev. Robertson in this respect?
Thanks to InstaPundit for the pointer.
. . . More than a dozen current and former law enforcement and counterterrorism officials, including some in the small circle who knew of the secret program and how it played out at the F.B.I., said the torrent of tips led them to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive.This is an interesting story, although I'm not quite sure what to make of it. If the spying program led to the discovery of "a few terrorists," is the real story that the program only led to a few terrorists, or is it that the program successfully led to the discovery of terrorist cells inside the United States? The Times opts for the former, but it's not immediately obvious to me why they don't opt for the latter. Second, I'm a little bit skeptical of the sourcing for this article. Turf battles can create inter-agency friction, and a New York Times piece based on anonymous sources can provide excellent cover for fighting the battle over turf. I would want to know what kind of turf battles are going on within the government between the NSA and FBI before knowing how much to trust the views of anonymous FBI insiders about the work of the NSA. The story is helpful, and may be quite accurate, but I'm a bit cautious about this one.
. . . [T]he comments on the N.S.A. program from the law enforcement and counterterrorism officials, many of them high level, are the first indication that the program was viewed with skepticism by key figures at the Federal Bureau of Investigation, the agency responsible for disrupting plots and investigating terrorism on American soil. . . . .
Officials who were briefed on the N.S.A. program said the agency collected much of the data passed on to the F.B.I. as tips by tracing phone numbers in the United States called by suspects overseas, and then by following the domestic numbers to other numbers called. In other cases, lists of phone numbers appeared to result from the agency's computerized scanning of communications coming into and going out of the country for names and keywords that might be of interest. The deliberate blurring of the source of the tips caused some frustration among those who had to follow up.
I've seen some persuasive evidence, both scholarly and anecdotal, that a major factor driving the "housing bubble" is historically loose credit standards: no money-down (or even negative money down) mortgages, cursory (or even non-existent!) checks of reported income levels, qualification based on teaser rates that rise substantially after a year or two, and so on. Here's a nice anecdotal example:
Nevertheless, maintenance worker [name deleted], 30, and his wife, [name deleted], who cleans homes, were able to purchase their first home last year for $475,000 with no money down.
"It was a good price for us, and this is the house we wanted," said [name deleted], whose monthly mortgage on the 25-year-old house is $3,600. "We wanted four bedrooms, and everywhere else in the county it was too expensive. I don't know how we got this house, but we came in and saw it, and me and my wife said the first moment we saw it, 'Hey, this is our house.'"
Unless maintenance men and cleaning ladies get paid much better in San Diego than anywhere else I've ever lived, $475K at $3,600 a month is a heck of lot to lend this couple, especially since they've shown no previous ability to save (no money down).
At some point, when the teaser rates expire, and prices stabilize (which they seem to be doing already) so that mortgagees can't simply "flip" their properties when their monthly payments rise, this is going to get very, very ugly. And the regulators who've dropped the ball on managing credit standards are going to look a lot like the regulators asleep at the switch in the '80s with regard to S&Ls.
Welcome to Truth on the Market. We have launched this blog to provide the metaphysical subjective truth on abstract, concrete and invisible markets throughout the civilized world (whatever that means). More specifically, as indicated by our current tagline (we know it’s unoriginal; we hope to come up with something better soon) our blog will provide academic commentary on law, business, economics and more. The “more” will include observations on law school, blogging, being a law prof, smoking bans, payola, legal valuation, football, processed cheese, and calorie counts, among other things.
We currently have a lineup of six young turks as regular bloggers and may add more. We all teach and write in the business law area, broadly defined. We had hoped to have some non-law profs (economics, finance, IO, sociology, etc.) and business law practitioners, but our recruitment efforts have so far been unsuccessful. Note though that Josh has a Ph.D. in economics. We also have an anonymous blogger, “pseudonym on the market” (he/she is rumored to be the love child of Article III Groupie and Jaun Non-Volokh). Unfortunately, contrary to rumors, neither Henry Manne nor Kate Litvak will be joining us out of the shoot, but we’re hoping one or both will join us in the near future for at least a guest stint.
We are aware of recent statements that blogging should be avoided by junior faculty. We are all junior faculty here and thus obviously disagree. Or, more correctly, as elaborated by Prof. Barnett in this post, we applied our local knowledge of our faculties and personal knowledge of ourselves and determined that the benefits of blogging outweigh the risks (other than Pseudonym on the Market who does think it is too risky, hence the pseudonym).
If all goes well with this blog, look for the Truth on the Market hedge fund. If not, maybe we can get jobs at Tufts (does Tufts have a law school?).
Alert readers will recognize that the group made their debut guest-blogging for Larry Ribstein at Ideoblog in December.
Among the contributors is my colleague Josh Wright, who has correctly interpreted George Mason's local culture on such matters, and joins David, Michelle, and yours truly in the blogosphere. With the exception of Chicago, which has its own in-house blog, given the size of our faculty I suspect that this must give GMU Law one of the higher blogger-faculty ratios in the country. And we hope to add a few more this year (news to come at a later date, I hope).
Monday, January 16, 2006
Ann Althouse discusses Dana Milbank's article on the Alito hearings, which culminated in Milbank's observation:
The nominee relied heavily on the language of law books, mentioning "Humphrey's Executor" (whoever he is) 10 times, "undue burden" 10 times, and "jurisdiction" 25 times.
Humphrey's Executor fundamentally dealt with the constitutionality of the FTC as independent agency. During my time at the FTC, I sported the following scrolled text as a screen saver on my computer:
The sound application of a principle that makes one master in his own house precludes him from imposing his control in the house of another who is master there.
There is a picture of Commissioner Humphrey on the first floor of the FTC building, which contains a hall of all the FTC's Commissioners through the years. Needless to say, we FTC alumni are well aware of both Mr. Humphrey--and his Executor.
UPDATE: In response to comments, let me clarify that my last sentence refers to the article as a whole — which is a criticism of Sally Frank's lawsuit — rather than every claim in the article. I gather that the author was trying to use a mix of serious criticisms and occasional Coulteresque over-the-top statements to criticize Frank's lawsuit. I mentioned Southern Partisan because the author's connection to that magazine semeed to rule out Todd's suggestion that the whole article might have been an elaborate joke poking fun at paleoconservative views.
A reader writes in and provides the link to the now-notorious article "In Defense of Elitism" from The Prospect, the publication of the Concerned Alumni of Princeton. He argues that the article that provoked such outrage was actually intended as a poorly-executed satire:
I don't know if you have read the article Ted Kennedy has been reading from, but I find it highly amusing that he was reading from an obvious satire.... [It] can be accessed on the Senator's website, [here].
The article is not funny, and is over-the-top in the way I recall some College Republicans at UVA were in the 1980s. But it is clearly intended as parody. By the end the author comments that elitism is culturally relative, and that "Princeton men" eat the lean part of steaks, and "Yale men" eat the fat. It is a joke that Kennedy failed to note the intended humor in this stupid farce.
I have not seen any reports on whether the author (supposedly one H.W. Crocker III) intended the article as a farce. But given the over-the-top nature of the language quoted during the hearings and the larger context of the article, it at least raises some question about whether this was intended as a satire. In addition, the goofy pictures and the one-page "back of the book" nature of the article (rather than a serious in-depth article) seems to add further credence to the suggestion that this was intended as a satire. The article seems to be intended as a tongue-in-cheeck defense of the Princeton eating clubs that were under attack by litigation by Sally Frank at this time.
The circumstantial evidence also suggest satire. The use of the term "philistines" in the subtitle. And the disquisition in the middle of the article on the "inverse elitism" of Sally Frank and the distinction between punk rockers who "condier themselves elitists" when in reality "they're merely proletarian snobs. They'll beat, mock and spit upon anyone who doesn't know that 'Dead Children Eat Vomit' by Joe Trash and the Mucuous Membranes is a parody of 'Dead Cats on the Freeway" which itself is a parody of 'There's Blood in My Soup.'" Not to mention the Yale v. Princeton steak wars cited by my correspondent.
In addition, the author's bio notes that at the time of the article, he was an "Intern at the National Journalism Center" in Washington, DC, and was the founder of the California Review at UC San Diego. In short, this all suggests that the author was a college undergraduate, and the article itself reads like the satirical efforts of a college undergraduate.
Does anyone know if "H.W. Crocker III" is even a real name? It seems to be extravagantly pretentious, in keeping with the rest of the tone of the article. At the very least, it is hard to imagine that CAP would have entrusted a UC-San Diego undergrad to provide an authoritative statement of the group's position on coeducation.
Was Senator Kennedy "had"? Reading the full article, it certainly seems that a strong case can be made that "In Defense of Elitism" was actually a poorly-executed satire by a college undergraduate, and Senator Kennedy took it seriously.
As they say, read the whole thing for yourself. But I think there is a real possibility here that Senator Kennedy was "had" by a satire and actually took it seriously. One may still find the satire tasteless, offensive, and inappropriate, but a poorly-executed satire sure seems different from the sort of charges that Senator Kennedy was hurling at Judge Alito the other day.
Several Commenters pointed me to this interview with Dinesh D'Souza at the end of last week that I missed where D'Souza states that the article was a satire. And this article which covers some of the same ground.
And, as Orin and several commenters have observed, apparently the author is real. I have struck the relevant sentences from the post.
Through one of the Trackbacks I discover that Sally Frank is now a Professor at Drake Law School.
Readers may be interested in Heather MacDonald's sure-to-be-controversial article on law school clinical education in the latest issue of the City Journal.
This is an expanded version of her Wall Street Journal column on the topic last week.
Resolved: The federal holiday known as "Martin Luther King, Jr., Day,"
should be replaced with a holiday should have been called "Civil Rights Day". Discuss.
UPDATE: Commenters don't seem to want to make the "Pro" argument, so here are some potential arguments (note: I am not endorsing any of these views, but I've heard them over the years):
(1) Naming the holiday after King neglects the contribution of the many thousands of others who contributed to the development of civil rights in the U.S., and it runs the risk of reducing the Civil Rights movement as taught in schools to the story of Dr. King.
(2) We don't usually name holidays after people, but events, movements, or whatnot: Labor Day, Memorial Day, Independence Day, Veteran's Day. Washington's Birthday is an exception, but even there, the holiday has become known popularly as "President's Day." And Columbus Day is also an exception, this holiday was founded as a political sop to Italian Americans, and is gradually becoming neglected.
(3) MLK was a great leader, but his views on civil rights and other things were and remain very controversial. For example, many on the Left believe he was too "accommodationist" and "integrationist." Many on the right believe his economic views were socialistic. Because many of his views are still not universally praised, the focus of public celebrations of his holiday are on him as a great leader who promoted civil rights, and he is best remembered for the "I have a dream speech." But if we are primarily celebrating the principle, why not have the holiday be based on that principle, and avoid the annual unproductive debate over whether "we" are really following Dr. King's principles, when a large percentage of Americans, though committed to civil rights and equality as they see it, have not necessarily agreed with some fraction of his principles to begin with?
Of course, it would be extraordinary to change the name of an existing holiday, and MLK Day has itself become symbolic of the success of the Civil Rights Movement, so I've edited the topic slightly. And how about the suggestion of the commenter that it should have been called "Martin Luther King, Jr., Civil Rights Day?"
FURTHER UPDATE: There is already a federally designated "National Civil Rights Day". Who knew? In theory, it could be combined with MLK Day to form the holiday suggested by the commenter.
Sunday, January 15, 2006
Over the last few weeks, I have been reading some of Michael Totten's posts and articles from his travels in the Middle East, in particular, Lebanon, Libya, and Egypt. He has a nice conversational style, with wonderful local detail and often a light touch in making his bigger political points.
In mid-December, Totten had an article in LA Weekly on his meal and other contacts with Hezbollah: "Guess Who’s Coming to Iftar: A Meal to Remember with Hezbollah." It seems that Hezbollah officials do not have a finely developed sense of humor.
But Totten's observation that I found most distressing and most insightful was made in a post recounting an evening at a Cairo bar he spent with the Egyptian blogger Big Pharoah:
I asked Big Pharaoh what he thought would happen if Egypt held a legitimate free and fair election instead of this bullshit staged by Mubarak.
“The Muslim Brotherhood would win,” he said. “They would beat Mubarak and the liberals.”
I was afraid he was going to say that.
“I’ve had this theory for a while now,” I said. “It looks like some, if not most, Middle East countries are going to have to live under an Islamic state for a while and get it out of their system.”
Big Pharaoh laughed grimly.
“Sorry,” I said. “That’s just how it looks.”
He buried his head on his arms.
“Take Iranians,” I said. “They used to think Islamism was a fantastic idea. Now they hate it. Same goes in Afghanistan. Algerians don’t think too much of Islamism either after 150,000 people were killed in the civil war. I hate to say this, but it looks like Egypt will have to learn this the hard way.”
“You are right,” he said. “You are right. I went to an Egyptian chat room on the Internet and asked 15 people if they fasted during Ramadan. All of them said they fasted during at least most of it. I went to an Iranian chat room and asked the same question. 14 out of 15 said they did not fast for even one single day.”
“Egypt didn’t used to be like this,” I said.
“Nasser’s biggest crime was not establishing democracy when he took over," he said. "Back then, Egyptian people were liberal. It would have worked then. But not now.”
Unfortunately, this makes sense. One way or another, it may be likely that some Muslim Middle East countries will be ruled by radical Islamist governments, as happened in Iran and Afghanistan. In such a country, in a decade or two the people are likely to turn against the government and radical Islamism. But ridding a country of a totalitarian regime can be difficult, often taking decades to accomplish. I fear that one or more of Egypt, Saudi Arabia, or Iraq may go through this Islamist stage in the next few decades, with enormous problems for the rest of the world. As many have argued, we may have entered a "long war" against Islamic totalitarianism (and the terrorism it breeds) that may last a century.