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Saturday, March 4, 2006
This Will Surely Encourage New Home Sales:
With new home sales slumping, and many buyers backing out their contracts even at the cost of losing their deposits for fear of losing even more money as the bubble deflates, builder Brookfield Homes has a great idea: threaten not simply to keep cold-footed buyers' deposits, but to sue them for the difference between the price they contracted for and the price the house actualy sells for: "Some buyers could find themselves on the hook for more than their initial down payment. If a house is resold for less than the original purchase price, 'we are able to go back to the initial purchaser and recoup some of the losses we had there,' says Mr. Hughes of Brookfield Homes." Yep, that will inspire new buyers to put down new deposits [clarification: given that it's both terrible customer relations, and also that it implies that Brookfield's poobahs believe that the value of the homes they've sold on spec is rapidly plummeting, or soon will rapidly plummet].
UPDATE: Of course it's true that many real estate speculators treated nonrefundable earnest money like a call option on rising real estate prices, and I wouldn't feel much sympathy for such a speculator who failed to anticipate (either because he didn't know the law, or because he assumed prices would rise forever) that he could be liable for expectancy damages as well. But it's also hard to feel sympathy for builders facing mounting cancellations: the builders knew rampant speculation was going on in many markets, and could have avoided the problem by only selling homes at or near completion.
A Pause to Give Thanks that Robert Bork Didn't Make it to the Supreme Court:
Bork: "Liberty in America can be enhanced by reinstating, legislatively, restraints upon the direction of our culture and morality. Censorship as an enhancement of liberty may seem paradoxical. Yet it should be obvious, to all but dogmatic First Amendment absolutists, that people forced to live in an increasingly brutalized culture are, in a very real sense, not wholly free." Judge Posner once wrote that the alternative to allowing an unregulated speech marketplace is permitting government censorship, leaving "the government in control of all the institutions of culture, the great censor and director of which thoughts are good for us." Posner meant that as a criticism of censorship, but it seems that Bork would think that's a good thing.
With his flaws, I'll take Anthony Kennedy any day (though I'd much prefer if Douglas Ginsburg had made it). In fairness (?) to Bork, he seemed a lot less extremist, and ornery, on a variety of margins before the trauma of his confirmation battle.
Hate Crime in North Carolina?
An attempted murder of nine people.
I'm not wild about special treatment for hate crimes (and, of course, if the story is accurate this is more than just a hate crime); but those who think hate crimes are a separate and important category should agree that this does indeed fall into that category.
UPDATE: I was on the run this morning, and didn't have time to go into details; and I also thought the reason this was a hate crime was pretty clear. Some of the comments question this, though, so let me elaborate.
Hate crime laws generally impose special penalties on criminals who select their targets because of (among other things) the targets' race, religion, or nationality. The attacker here was apparently motivated by his upset at the supposed mistreatment of Muslims. It thus seems no accident that he targeted for his attack a place that's frequented by members of other religious groups. I realize that most places in America are frequented by non-Muslims; if he hadn't told us his motives, we might assume that he was just choosing victims for reasons unrelated to religion. But he has told us his motives, which explain why he drove into a people at a university rather than people outside a mosque or people outside a local Muslim store -- he wanted to retaliate against non-Muslims, so he drove into a predominantly non-Muslim crowd.
Depending on how nationality is defined for purposes of hate crimes laws, an attack aimed at Americans because they are Americans may also be a hate crime on that score. But an attack aimed at a group largely consisting of non-Muslims (or non-Christians or non-Jews) because they aren't Muslims -- and we know this was its aim because it was motivated by the attackers' feeling that Muslims were being mistreated, presumably by non-Muslims -- is a hate crime.
By way of analogy, imagine that a Christian became upset by the supposed mistreatment of Christians (presumably by non-Christians), and rammed his car into a crowd of people who are predominantly non-Christian (or at least not observant Christians). It would seem to me pretty clear that his choice of targets was likely motivated by the targets' religion -- otherwise how would his attack be connected to his stated motive?
Naturally if it turns out that the attacker's motives were different, for instance if it turns out he just want to kill a random bunch of people, or because he was somehow upset at the mistreatment of Muslims by Muslims as well as by non-Muslims -- and decided to act on that by ramming his car into a crowd of predominantly non-Muslim Americans -- the analysis might be different. I'm writing, though, based on what the story reports.
Friday, March 3, 2006
"English-Speaking American":
Denver Post:
Arapahoe County is threatening to fire a veteran Public Works employee for promoting the fact that he is an English speaking American."They claim it's offensive and I've been accused of discrimination and harassment, believe it or not, because of this," said Mike Gray, a heavy equipment operator with the Arapahoe County Road and Bridge Department for 16 years. The problems began last spring. Gray, 50, owns a lawn service business on the side. He was routinely driving to work in his pickup truck towing a trailer that he uses to carry lawn mowing equipment for his business. On the side of his trailer, the married father of two affixed a sign that reads "Lawn Services Done With Pride!! By An English Speaking American."The sign also gives Gray's phone number and the lettering is over a background of an American flag."There are a lot of people in the lawn service that are non-English speaking," Gray said. "Customers and different people were telling me that they have a hard time trying to communicate with them about the work they want done on their yards. I just want to let people know they at least can communicate with me when I do work on their property." Gray also wore a hat to work that says "U.S. Border Patrol," which he says was a gift from his son.
Arapahoe County officials told Gray the sign and hat must go or else. In a Nov. 10, 2005, letter, his supervisor Monty Sedlak wrote the following: "Some of your conduct ... is reprehensible and discriminatory to our non-English speaking and/or Hispanic workforce. You are in violation of ... guidelines which ensure a workplace free from harassment and sensitive to the diversity of employees." "You are required to permanently remove your cap from the workplace. It is offensive and harassing. Your business sign, if on work premises, must be completely covered at all times. This behavior is inappropriate and any further incidents of this nature may result in further disciplinary action up to and including termination of employment."
Gray has hired an attorney to fight the County on First Amendment grounds. Sorry, Mr. Gray, the government is your employer, and it may forbid speech at the workplace that it thinks is offensive to other workers, even if you think your boss is being hypersensitive (and personally, I don't see anything "harassing" about wearing a hat that says "U.S. Border Patrol," though I can see, in context, why some would find it offensive). What the government could not do is require you to cover your sign, or forbid you to wear your hat, outside the workplace.
On the other hand, the government may fire a prosecutor who attends racist meetings, given that having such a prosecutor on staff is likely to reduce public faith in the fairness of the justice system.
Yes, I'm troubled by the fact that the government, acting as employer, has such censorious powers. In the case of the prosecutor, it's pretty much unavoidable. In Mr. Gray's case, it provides another reason to support privatization of peripheral government functions.
Cato and Palmer in Iraq:
I am old enough to remember when a very young Tom Palmer used to travel behind the Iron Curtain on behalf of the Cato Institute to plant seeds of liberty in the Eastern block countries. Since the fall of Saddam, he has been doing the same thing under even more dangerous conditions in Iraq, making several trips there with his own personal set of body armor. This story from the National Journal reports on some of the fruits that have grown from those seeds, and explains why Tom is one of my heros.
Last April, Palmer returned to Iraq to give talks on constitutional and free-market principles. At one such talk he met Kamil. Returning to Washington, Palmer connected with other liberal Arabs and, with their help, began commissioning translations: of Bastiat, Mises, Adam Smith, John Stuart Mill, Voltaire, David Hume, F.A. Hayek, and such influential contemporary writers as Mario Vargas Llosa and Hernando de Soto. Most of this stuff has either been unavailable in Arabic or available spottily, intermittently, and in poor translations.
In January, MisbahAlHurriyya.org made its Internet debut. Today it hosts about 40 texts; Palmer aims for more like 400, including a shelf of books. (It currently offers an abridged edition of Hayek's Road to Serfdom and Bastiat's The Law. The Norberg book is coming soon.) Sponsored by the Cato Institute, it joins a small but growing assortment of Arabic-language blogs and Web sites promulgating liberal ideas.
"The Internet is a historical opportunity for Arab liberalism," Pierre Akel, the Lebanese host of one such site, metransparent.com, said in a recent interview with Reason magazine. "In the Arab world, much more than in the West, we can genuinely talk of a blog revolution." The Internet provides Arab liberals with the platform and anonymity that they need; helpfully, Arabic-language blogware, developed by liberal bloggers, recently came online for free downloading. During the recent controversy over a Danish newspaper's publication of cartoons depicting the Prophet Mohammed, an Egyptian blog, EgyptianSandMonkey.blogspot.com, made a splash by pointing out that no one had protested when the same cartoons had previously been published on the front page of an Egyptian newspaper — and by calling, sardonically, for a Muslim boycott of Egypt. (The site boasts a "Buy Danish" sticker.) When Tom was making his trips to Eastern Europe, and IHS was bringing students from there to the U.S. for its summer seminars at which I taught, the situation in Europe and the USSR seemed far more hopeless than does our present position in Iraq. Let us hope for at least as successful an outcome.
Update: I closed comments after they took a nasty turn (NOT about Tom), especially given that I won't be able to monitor them consistently over the next day or so.
Applying the Fourth Amendment to Pranks:
On Tuesday, the Tenth Circuit handed down a very interesting decision applying the Fourth Amendmemt to a prank. The case is Fuerschbach v. Southwest Airlines, and was written by Judge Lucero (joined by McConnell and Brorby). From the introduction: Several supervisors at Southwest Airlines convinced two Albuquerque police officers to stage an arrest of Marcie Fuerschbach, a Southwest Airlines employee, as part of an elaborate prank that included actual handcuffing and apparent arrest. This was a "joke gone bad," and turned out to be anything but funny, as Fuerschbach allegedly suffered serious psychological injuries as a result of the prank. She sued the officers and the City of Albuquerque under 42 U.S.C. 1983, alleging violations of her Fourth and Fourteenth Amendment rights. . . . We conclude that Fuerschbach's allegations are sufficient to survive the assertion of qualified immunity. Whether the characterization of the incident as a prank permits the officers to escape liability is a question for the jury to resolve. The case is interesting in part because Fourth Amendment "seizures" of persons are analyzed from the perspective of the person seized. The question is whether a reasonable person in that situation would have believed she wasn't free to go, not whether the officers believed that the individual was free to go. The difference is criticial in the case of a prank: the officers know it's all a joke but the person "seized" does not. A very interesting case. Hat tip: Decision of the Day.
All Blogspot Blogs Apparently Blocked in Pakistan,
presumably because of a Pakistan Supreme Court order requiring "[the Pakistan Telecommunication Authority] and other concerned organs of state to take all possible measures for blocking internet web-sites exhibiting the blasphemous caricatures." The source that reports on the blogspot blocking writes:
Update: The block is at the ISP level. Not all internet traffic is routed through the Pakistan Internet Exchange, so the govt. must have ordered local ISP's to block certain websites. All the major ISP's in Pakistan are blocking weblogs hosted at blogspot.com.
I say "presumably" because the sources I cite report as fact only (1) the blocking of blogspot, and (2) the Pakistan Supreme Court order; the remainder, as best I can tell, is still inference, though regrettably plausible inference.
Thanks to Manan Ahmend (Cliopatria) and InstaPundit for the pointer.
Some Oscar Trivia:
What two people won Oscars for portraying the same character in two different movies? What two people were nominated for Oscars for portraying the same character in the same movie? (There are two sets of answers to this one.)
How Religious Liberty Claimants Fare in the Courts—Responding to the Critics and Closing Thougths:
During this past week, I’ve offered a series of thoughts about why traditionalist Christian (specifically Catholic and Baptist) claimants in religious liberty cases now appear to be the disfavored parties in court. Several responses to my postings offered thoughtful questions about methodology or provocative arguments about religious liberty. Other comments, salted with pejorative labels (“pseudo-science,” “cartoonish”) or impugning the researcher’s motives or competence (“whining,” “right-winger,” “unscholarly”), were less analysis than sneering. To quote Martin Marty quoting William Paley: “Who can refute a sneer?”
The subject that received the greatest attention of course was whether traditionalist (or social-conservative) Christians are being treated unfairly in religious liberty litigation or instead are just getting what’s coming to them. Here there was more consensus than might appear. First, most accepted the baseline finding that Catholic and Baptist claimants were significantly more likely to fail. Second, most also agreed that the source of that failure lay in the judicial reaction to the nature of their claims. In sum, despite sound and fury, the principal findings of the study emerged undisturbed.
A few voices wisely warned not to extrapolate from these findings to construct a general model of religious freedom in American society. Given the larger number of lawsuits filed by minority religionists compared to their proportion in the general population, they further suggested that the average Muslim or Native American is more likely to experience religious hostility in society than the average Catholic or Baptist. That may well be true, although because minority religion claims in our study tended to be individual and prisoner claims, while many Catholic and Baptist claims were by religious communities or institutions, that inference is difficult to extract from our data.
In any event, our study forthrightly focused on religious liberty claims in court. Trends in judicial reception of religious liberty claims flow back into society and influence societal attitudes. And impartial and even-handed treatment by judges of claimants regardless of religious affiliation is an important value in itself.
Most critics parted ways with me on how to characterize the finding that Catholics and Baptists were less likely to succeed in court. I suggest typical claims by Catholics and Baptists—seeking exemption from anti-discrimination rules, licensing and regulatory requirements, etc.—were a shot right across the bow of the liberal ship of state. Critics retort that these anti-discrimination or regulatory provisions advance compelling public interests that admit to no exception. I respond that they are conflating the merits—and thus the scope of religious liberty—with ideological or cultural preferences. And ‘round we go.
Two weeks ago, in Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 2006 WL 386374 (U.S. 2006), the Supreme Court unanimously held that the Religious Freedom Restoration Act (FRFA) demands a “focused” and not a “categorical approach”: “[T]he compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” Thus, when a religious sect makes sacramental use of a hallucinogenic substance, “mere invocation” by the government of a general prohibition on non-medical use of narcotics is insufficient to override it.
My vision of religious liberty denies presumptive power to any political agenda, of left or right, over claims of religious conscience. I expect that religious liberty claims by people of all faiths should receive a particularized judicial consideration and not be submerged beneath political platitudes about either “law and order” or “the equal opportunity society.” An insistence upon subordinating religious conscience to rigid dictates of the state, in the name of some general policy goal, is the antithesis of religious liberty.
This vision fits comfortably with today’s Supreme Court under RFRA and with such liberal stalwarts for civil liberties as Justices Brennan and Marshall a generation ago under the Free Exercise Clause of the First Amendment. That many today characterize the case for a robust, vigorous, and broadly-applied judicial protection of religious liberty as but mere conservative special-pleading speaks volumes about the evolution within elite society of attitudes toward religious values and tolerance of dissenting religious perspectives.
In closing, whether you find my research and analysis to be commendable or damnable, I am transparent about what I’m doing. For anyone interested in digging into the dataset, it always has been publicly available.
More NSA Surveillance Programs?:
The Washington Post reports that AG Alberto Gonzales and White House Counsel Harriett Miers each denied in telephone calls to Rep. Jane Harman that there was "a broader program or an additional program out there involving surveillance of U.S. persons" beyond the known NSA surveillance program. This is an interesting development, although exactly what it means isn't clear to me. Given that the statements were made to Harman over the phone and reported by her from memory, we don't know precisely what was said. The details might matter. For example, a statement that there are no additional "surveillance" programs might be quite different from a statement that there are no additional "electronic surveillance" programs. "Surveillance" would seem to be a general term, but "electronic surveillance" is a term of art defined in FISA that is mostly limited to acquiring the contents of communications. See 50 U.S.C. 1801(f). So, for example, a datamining program that used non-content envelope information from Internet and telephone communications to try to look for patterns and links of communications might sound like a "surveillance" program in a popular sense. On the other hand, it technically would not be an "electronic surveillance" program as the term is used in FISA.
Thursday, March 2, 2006
Should Being an Active Member of a racist, anti-gay, anti-Semitic organization
disqualify someone from serving on a state hate crimes commission? You would think so, but, at least in Illinois, you'd be wrong: "On Wednesday, [Governor] Blagojevich expressed support for Claudette Marie Muhammad, director of community outreach for the Nation of Islam, a black Muslim group led by the Rev. Louis Farrakhan... Muhammad recently invited commission members to attend a Farrakhan speech in which he accused 'Hollywood Jews' of 'promoting lesbianism, homosexuality' and other 'filth.'"
UPDATE: In answer to readers' comments, racism is central to NOI ideology, not peripheral. Just do a Google search on "Nation of Islam" "racism" and "yacub" or "yakub." And I find the analogy to a Boy Scouts leader extremely imprecise. The Scouts ban gays (and atheists, and girls), certainly, but I have never seen an example of the Scouts preaching hate toward gays (or atheists, or girls). A governor could nevertheless use his discretion not to appoint a Scout leader to any civil rights-related position, of course.
Proposal to Forbid Law Schools from Relying on the LSAT:
Here are details of a proposal to prohibit law schools from relying on the LSAT, because of the "disparate impact" the test has on African American and Mexican law school applicants. This proposal will be brought to the relevant ABA committee in June. I wouldn't normally give this a snowball's chance of passing, but who would have thought that the relevant ABA committee would pass a proposal that blatantly misconstrues Grutter and requires law schools to disobey the law, all in pursuit of "diversity"?
There are three noteworthy oddities in the memo (by Prof. Vernellia Randall) accompanying the proposal. The first is that it states that the "LSAC recently reported that virtually no law school is implementing Grutter." Given that all Grutter did was allow (but not require) law schools to use racial prefernces to achieve racial diversity if they have determined that racial diversity is a compelling educational interest, it's not clear what "implementing Grutter" could possibly mean. My best guess is that Prof. Randall (who is webmaster of the bizarre "Whitest Law Schools" website) seems to associate Grutter with the idea that every law school should have a "critical mass" of Black and Latino students. Grutter certainly allows law schools to pursue a "critical mass" under the circumstances noted above, but doesn't require them to, and indeed forbids it for reasons other than the "diversity as a compelling educational interest" rationale.
Another oddity is the claim that law schools are relying too heavily on the LSATs at the expense of minority students to raise their ranking in U.S. News, which uses schools' LSATs in its ranking. (She writes: "Perhaps the most pervasive reason is that many schools are undertaking a crude attempt to increase their ranking in the U.S. News and World Report at the expense of admission of minorities.") I've heard this claim often, and I'm sure that part of what is motivating the ABA's recent aggressive actions against law schools without "enough" minorities is the view of some professors that law schools who aren't taking their "fair share" of African-American students are shirking, and are benefitting in the US News rankings at more "progressive" (what is progressive about admitting and then failing out Black students?) schools' expense.
This view, however, neglects how U.S. News works. Average LSATs are irrelevant. Rather, the magazine has traditionally looked at median LSATs (last year they switched to 25 and 75 percentile scores). If you simply replace your lowest LSAT white students with even lower LSAT Black or Latino students this will have no effect on your median (or 25th or 75th percentile, unless a school already has 25% plus Blacks and Latinos) LSAT. Thus, schools that do not engage in vigorous affirmative action preference policies are not getting any meaningful competitive advantage from U.S. News.
The third oddity is the concern only with inputs (number of minority students being admitted to law schools) and not with outputs (how many actually graduate and pass the bar). As I've noted before, at many law schools more than half of African American matriculants never become attorneys. Shouldn't this problem be dealt with before requiring law schools to change their standards to favor even less-academically ready applicants?
ESPN on "The Spot":
After "The Shot" I think we can now say there is "The Spot"--the new Michael Jordan Nike commercial, "Second Generation," that brings chills to me and many other VC readers. Now ESPN has a lengthy story on the spot's creation here. Most interesting is the strong implication that all the spots were recreated live without help from computer generated graphics, including "The Dunk" from the foul line. An excerpt:
In order to film the spot, Wieden + Kennedy held casting calls around the United States looking for kids of various backgrounds and ages who could make the moves, ranging from Jordan's tongue wagging to his gum chewing to memorable moments like his foul line dunk from the 1987 Slam Dunk contest, the fist pump after "The Shot" over Cleveland Cavaliers guard Craig Ehlo in the first round of the 1989 playoffs and his fake out of Utah Jazz guard Bryon Russell that gave the Chicago Bulls the title in the 1998 Finals.
Although all the spots were filmed in Los Angeles, the goal was to show kids imitating Jordan in all parts of the world. Jordan's defensive stance is portrayed by a kid dressed in a jersey that is African inspired. Another scene is set on another continent, where an Asian boy famously palms the basketball like Jordan. Other moments are supposed to hint at play taking place in U.S. cities, like Chicago and New York.
The only attempt at reconstructing specific scenery is the point in the ad where a young player imitates Jordan's most famous dunk. Because the dunk is supposed to happen in the present, the producers didn't have onlookers wearing clothing from the late '80s, but Mark Adamson, Jordan account executive for W+K, said the crowd was spaced out to look like it appeared during Jordan's dunk with the colors matching those of the insides of old Chicago Stadium.
While one might think that the kids were shown the specific Jordan moves before they were performed, W+K execs maintain that was not the case. The kids did what they remembered as art director Jesse Coulter fine-tuned to make sure the moves were as technically accurate as possible.
Public High School Teacher Suspended for Left-Wing Political Rants:
Via Drudge, I learn that a high school teacher in Denver has been suspended pending an investigation into remarks he made during class that were recorded by one of his students. According to the Denver Post,
teacher Jay Bennish described capitalism as a system "at odds with human rights." He also said there were "eerie similarities" between what Bush said during his Jan. 28 State of the Union address and "things that Adolf Hitler used to say.
Can Bennish constitutionally be penalized for presenting one-sided political rants to his class? Yes, I believe he can, and, to the extent he was departing from the assigned curriculum, or violating school policy in presenting only one side of an issue, likely should.
It so happens I've recently written about a similar issue [in a forthcoming book review in the Northwestern University Law Review], whether public schools in the 1950s had the authority to exclude Communist teachers from teaching social studies.
An important background assumption is that the very existence of public schools means that the government will to some degree be inculcating values into minor students. Simply by choosing curriculum, textbooks, and engaging in other functions inherent in the education process, the government will inevitably be making value-laden choices that will dictate what students learn about various social, moral, and political issues....
It is hard to disagree with Redish’s conclusion that since public schools will inevitably inculcate values, the government has a right to ensure that the teachers it employs are "with the program." But perhaps one lesson of the McCarthy era controversy over employment of Communist public school teachers is that government-run schools create inherent First Amendment problems.
Any solution that leaves the government in charge of dictating curriculum, much less directly teaching values, seems second-best from a First Amendment perspective given that, as Redish acknowledges, "the public school educational system is an authoritarian operation." The government's subsidy of certain points of views by teaching them in public schools serves as the equivalent of an implicit tax on competing perspectives, a method for government to get around the prohibition on directly taxing ideas that the government wishes to discourage. To preserve a fair, non-statist, marketplace of ideas, the government, if it must fund education, should simply provide vouchers and let parents decide which values they wish their children to be exposed to. Redish argues that "there is little doubt that a democratic society cannot function effectively absent an effective system of public education," but he does not explain why such a system must be run by, as opposed to simply funded by, the government.
I go on to argue that so long as we live in a second-best world with public schools, government authorities have the right to dictate to teachers what to teach, and to punish those teachers who refuse to comply. I conclude, however, that teachers should only be excluded or punished based on what they actually say in class, not based on their background beliefs:
the implications of allowing school authorities to choose teachers based on how their personal beliefs may affect their teaching are too troubling: May libertarians be forbidden from teaching history courses, because they may be tempted to undermine the statist assumptions so often embedded in public school social studies and history curricula? Can fundamentalist Christians and Jews be prohibited from teaching biology, on the grounds that they may try to undermine the teaching of evolution? Can committed Catholics be prohibited from teaching “health” classes on the grounds that the may try to avoid discussing contraception and abortion, as required by the curriculum? Can conservative Christians be banned from teaching in general, because their views on the morality of homosexuality may lead them to discriminate against gay students?
In short, a public school teacher shouldn't be punished for his background beliefs, though arugably it's constitutional to deny someone a teaching job based on those beliefs (no Klan members teaching a race relations course). But a teacher can be punished for what he says in class.
UPDATE: I've listened to the recording of the class, and this guy is a serious left-wing cliche machine (including some comments on the Drug War I agree with!). If I didn't know better, I'd think it was a satire.
Blog Blocked?
Do any of you folks know (1) whether our blog is blocked by some filters, and (2) how, if at all, we can try to get it unblocked? A reader e-mails that a filter named Bess seems to have it in for us, which keeps up from being accessed on some high school computers. I'm not sure that we'd want to invest a great deal of effort in trying to get unblocked, but if we can quickly find out -- with your help -- who blocks us and just send a few e-mails that might help some high school students get hooked on that Volokh Conspiracy crack take advantage of the information and opinion that we provide, that would be nice.
By the way, I'm not terribly outraged or even upset that we might be blocked. While we don't consciously try to run a "family blog," my sense is that even the 1% of our stuff that may be slightly racy is mighty tame by modern high school standards; but if some filter manufacturer disagrees, I won't to be too upset. I just suspect that the blockage is more a matter of automated word searches than of deliberate and particularized judgment, and that a filter manufacturer who does look more closely at us would probably conclude that we're not really R-rated. (As to pre-high-school students, let's just say that one doesn't need a filter to keep a typical 11-year-old from reading a blog like ours; and if some 11-year-old does read us, I suspect that it'll have to be a generally pretty mature 11-year-old.)
The Expansion of the Supreme Court Bar:
Over at SCOTUSblog, Tom Goldstein has a post on the Supreme Court bar that is a must-read for folks interested in practice before the U.S. Supreme Court. Check it out.
Check the Spell-Check:
This is really funny. My favorite line from the brief: "It is well settled that a trial court must instruct sea sponge on any defense, including a mistake of fact defense." Indeed. Thanks to Crime & Federalism for the link.
Law School Hiring, Both Entry-Level and Lateral:
Initial round-ups of faculty hiring at U.S. law schools came online today. Legal Theory Blog has the scoop on entry-level hires, and Concurring Opinions has posted the initial reports of law school faculty lateral moves. Some of the info at CO has appeared at Leiter's Law School Reports over the last few months, but some of it is new.
Do Traditionalist Christians Lose in Court Because They Present Marginal Religious Liberty Claims (Explanations Part Three)?
Could it be that Catholics and Baptists raising religious liberty claims in the federal courts lose more often simply because they deserve to lose, as they present weaker legal claims justly turned back by the courts?
Within the hour after my first posting on Monday, a few commentators moved with amazing alacrity toward the assumption of merit-deficit on the part of Catholic and Baptist claimants, well before any evidence had been examined and without any support in the literature. Others more deliberatively pointed to the small shares of Catholic and Baptist claimants in our study, compared to their proportion in the general population. From this they drew the plausible inference that most mainstream believers have little need for court-ordered accommodation and thus the few who file suit may be outliers making more extreme demands.
However, the Catholics and Baptists who resort to legal action just as likely may be located in discrete areas less hospitable to traditionalist Christians, as what counts as the mainstream varies enormously by geography. Moreover, these claimants were compared not only to minority religious groups whose claims might be seen as more likely to raise vital objections to repression by a hostile society, but also with others whose position on the religious spectrum falls closer to the middle. And remember some of these are defensive claims by involuntary (not self-selecting) parties to suit.
We also should inquire whether the design of the study and the evidence from the data shed any light. So I turn to what some have insisted is an endogeneity problem, or what social scientists describe as questions of omitted variable bias or inadequate specification of the model. However framed, the issue is whether the less-successful claims raised by Catholics and Baptists were comparable in merit to those raised by others. Social scientists have not yet found the Holy Grail of an objectively determined and replicable measure of legal merit. Nonetheless, our study included three different, admittedly crude, proxies for claim strength or validity.
First, we included case-type control variables to ensure that any relationship discovered was not an artifact of a correlation between a religious variable and a particular type of case. As Donald Songer and Susan Tabrizi well explain, “integrated models will be incompletely specified unless they include the particular case facts that are most relevant for the type of cases examined.”
Second, because freedom of speech is one of the most vigorously protected constitutional rights, claims involving religious expression ought to be among the strongest religious liberty claims. When we separated out religious expression claims, our results remained stable.
Third, and most importantly, focusing upon published decisions provides a rough measure of claim quality. By examining published decisions, we actually biased our database in favor of decisions that raise highly visible, controversial, landmark, or difficult questions of religious freedom. The set of published opinions is likely to be skewed toward those cases that raised viable, as opposed to frivolous, claims.
We also have the raw data so that we might see the types of claims that Catholics and Baptists bring into the courts. As addressed yesterday, the diminished success of Catholics and Baptists may be attributed to their greater tendency to resist application of various social welfare regulations and anti-discrimination laws to church-related institutions, because judges regard such regulatory measures and civil rights laws as serving especially compelling public interests.
Some commentators have seized upon precisely this point, which they characterize as going to the legal merits of the claim. Such an appraisal of merit, however, shades into little more than a subjective aversion to the cultural values expressed by traditional religionists and a subjective preference for the present-day priorities of secular liberalism.
Why should the welfarist, regulatory, and anti-discrimination agendas of the moment be regarded as more impervious to claims of religious conscience than the old-style governmental interests of law and order and loyalty to American democracy that were invoked in days past to suppress minority religious groups? Should we not be suspicious of the rather convenient (and downright dangerous) argument that the scope of religious liberty for others neatly dovetails with and is calibrated to our particular political preferences? More responses to comments tomorrow.
Levy Fellowships at George Mason Law School:
Some readers may be interested in applying for the Levy Fellowship program at George Mason Law School.
Eligibility requirements are as follows:
The Robert A. Levy Fellowships in Law & Liberty were created through the generosity of Dr. Robert A. Levy, a 1994 graduate of the law school. Through this fellowship program, Dr. Levy seeks to encourage young scholars to enter the academic field of law and economics by sponsoring their pursuit of a J.D. degree. Fellowship grants cover tuition and fees and provide a substantial stipend for up to three years.
To be eligible for a Levy Fellowship, an applicant must either (1) have earned a Ph.D. in economics, philosophy, political science, finance, or a related field from an accredited university or (2) have successfully completed all course work in one of the above fields and have passed a general exam for a Ph.D. in one of those fields from an accredited university. Additionally, each fellow must pledge that it is his or her intention to pursue a policy-related or an academic career with an interdisciplinary teaching and research specialization.
Two or more fellowships per year are granted to entering law students. Fellowship grants cover tuition and fees at the George Mason University School of Law and provide an average annual stipend of as much as $22,000 for up to three years.
Fellowships are granted for one academic year and are renewable, on evidence of satisfactory progress, for up to two additional years.
Additional information on how to apply is available here. The deadline for Applications is April 1, 2006.
In addition to the other benefits, Levy Fellows are participants in the Levy Fellows Workshop program at the law school, at which the Fellows present works in progress as well as inside and outside faculty. The Spring Levy Fellows workshop schedule is here.
Alumni of the Levy Fellows program include Professors Jonathan Klick of Florida State Law School and Moin Yahya of the University of Alberta School of Law as well as several lawyers at the Federal Trade Commission and elsewhere in the federal government.
Wednesday, March 1, 2006
More Details (and More Speculation) on the NSA Surveillance Program:
Attorney General Alberto Gonzales has sent a letter to the Senate Judiciary Committee following up on his testimony about the NSA domestic surveillance program. The new letter adds a few details and corrects a few potential misimpressions from the AG's live testimony. Among the more interesting tidbits: The NSA surveillance program was authorized by the President very soon after 9/11. Specifically, it had already been authorized by the time the President signed the Patriot Act into law on October 26, 2001. Also pretty interesting: The Gonzales letter gives a very strong hint that the initial legal justification for the NSA program within the Executive Branch was mostly a strong Article II claim of inherent power, and that the AUMF argument that the Administration is relying on now did not provide the primary legal basis for the program when it was enacted. See pages 5-6. Given that we now know the NSA program was approved by late October 2001, it seems at least possible (depending on how you read the letter) that the program may have been approved before the AUMF was even passed. That would have required really fast work, as the AUMF was passed about a week after 9/11, but it's at least a possibility. What changed that explains the current primary reliance on the AUMF argument? One plausible answer is the Supreme Court's June 2004 decision in Hamdi v. Rumsfeld. Most of the Hamdi opinions are hard to reconcile with the Administration's broader Article II claims. In addition, Justice O'Connor's plurality opinion offered a relatively broad interpretation of the AUMF, making the AUMF arguments more plausible (if, in my mind, ultimately unpersuasive). The shift in legal ground may also explain why the scope of the NSA program and the arguments being made in favor of it don't match very well: It seems that the Administration's arguments in recent weeks weren't the major arguments DOJ was relying on when the program was designed and approved. UPDATE: More on this from The Anonymous Liberal.
Cool in a different way:
Here is another basketball video from GoogleVideo (hat tip Club For Growth Blog), that is cool in an entirely different way than the Jordan commercial to which I linked yesterday (but you have to stay with it, it does not go where you think it is going at first). Apparently the embedding function--which I think is pretty cool in itself--is not available for this clip, so you have to click here.
I enabled comments for comments on this clip as well as on the Jordan video which still gives me chills after watching it 10 times. If you have not yet seen the Jordan clip use the chain link below to get to yesterday's post.
Would Journalists Lose Geneva Convention Protections If They Arm Themselves in Self-Defense?
Lawprof Kevin Heller (Opinio Juris) says no, despite the International News Safety Institute's contrary views. (Of course, the pragmatic costs-and-benefits question facing each journalist on this is separate from the legal question.)
Actors:
An easy one. What do these actors have in common?
Warren Beatty Kevin Costner Clint Eastwood Mel Gibson Robert Redford
The Simpsons v. The First Amendment:
Quick, without looking or reading on, how many of the liberties protected by the First Amendment can you name?
If you can name more than one, you're among the elite in constitutional literacy in the United States.
Says the AP:
Americans apparently know more about "The Simpsons" than they do about the First Amendment.
Only one in four Americans can name more than one of the five freedoms guaranteed by the First Amendment (freedom of speech, religion, press, assembly and petition for redress of grievances.) But more than half can name at least two members of the cartoon family, according to a survey.
The study by the new McCormick Tribune Freedom Museum found that 22 percent of Americans could name all five Simpson family members, compared with just one in 1,000 people who could name all five First Amendment freedoms.
The survey also found that more Americans could name the three "American Idol" judges than could name three rights guaranteed by the First Amendment.
These results are amusing, perhaps disappointing, but not terribly surprising. I wonder how many lawyers could name the freedoms beyond speech and religion. And the survey doesn't really tell us much about the state of practical knowledge in the country. My sense is that most Americans know they have some sort of right to speak their minds and that even people who disagree with them do, too. They also probably understand that they and their neighbors can worship God or not, more or less in their own way. Their grasp of the Establishment Clause is probably less firm, but in that they are joined by the Supreme Court. The other three freedoms listed in the First Amendment (press, assembly, and petition) are historically important and could be valuable in theory, but have played little role independent of free speech in the Supreme Court's jurisprudence.
By the way, I count six (not five) freedoms explicitly listed in the First Amendment: no establishment of religion, free exercise, free speech, press, assembly, and petition. If we added the unenumerated freedom of association we'd get to seven. The survey designers lumped the Establishment Clause and the Free Exercise Clause together as "freedom of religion," but it seems to me the clauses serve distinct (yet complementary) roles in protecting religious freedom.
There is good news in the survey for advocates of the living Constitution:
About one in five people thought the right to own a pet was protected, and 38 percent said they believed the right against self-incrimination contained in the Fifth Amendment was a First Amendment right, the survey found.
I had thought the constitutional right to own a pet was found in the Ninth Amendment, or perhaps among the transcendental liberties protected by the Due Process Clause of the Fourteenth Amendment. Is there a more suitable constitutional home for the right to own a pet?
Explaining the Disadvantage in Court for Traditionalist Christians Making Religious Liberty Claims (Part Two):
In yesterday’s post, when exploring the reasons why traditionalist Christians are significantly less likely to succeed with religious liberty claims, compared to other religious groupings including members of minority religions, I turned aside the possibility of old-fashioned bigotry and questioned the assertion that supposedly mainstream believers do not need or deserve judicial protection for religious conscience.
In today’s post, I suggest that because Catholic and Baptist claimants tend to assert controversial claims of conscience that conflict directly with the social policy-initiatives of liberal secular governments, judges that are disproportionately drawn from the cultural elite may (at the margin) react more skeptically or hostilely to such claims, even aside from the legal merits (and there'll be much more on the merits issue tomorrow).
During the course of American history, both the political left and the right at different times and in different ways have posed threats to our most cherished liberties, whether freedom of speech, procedural protections against government action, or free exercise of religion. In the past, the greatest threats to religious liberty were posed by patriotic sentiments and a law and order agenda typically advanced by the right. Today, the greater threat may come from the left through imposition of anti-discrimination and social welfare requirements even against private associational groups, such as religious believers and communities.
What Catholics and evangelical Protestants tend to hold in common today is a general adherence to traditional or conservative social values that may conflict with the commands of liberal governments. Thus, when traditionalist Catholics and Baptists resist governmental regulation by seeking exemptions from, for example, anti-discrimination or licensing laws, they run against the grain of mainstream secular society in certain regions of the country.
William Marshall has argued that “[a] court is more likely to find against a claimant ... when the religion is bizarre, relative to the cultural norm.” I submit that the opposite may be more common, given the natural human tendency to respond more vigorously to the perceived threat next door than to the peculiarity on the far side of town.
Thus, when we hear stories of strange (to us) religious beliefs and practices, our reaction tends to be one not of antipathy or disagreement, but of detached curiosity. Because such unconventional thinking or conduct is so distant from our own, we are less likely to compare those attitudes and actions against our own beliefs and practices.
By contrast, the typical American may be more threatened by that which is familiar and close at hand, but regarded as morally reprehensible, than by that which is foreign and remote (culturally if not geographically). We may react more defensively to the neighbor who is in almost all aspects similar to ourselves but who departs markedly on some essential point that is crucial to our own sense of values or identity. Consider our response toward someone who looks much like us, grew up in similar ways, lives in the same neighborhoods, attended the same schools, holds the same kinds of jobs, but who then holds what we see as peculiar and abhorrent views on human sexuality or abortion and reproduction or relations between the genders or responsibility for the community and social welfare.
Accordingly, when a judge encounters a religious practice that departs so radically from the conventional as to appear wholly other, the judge may be more willing to tolerate it as harmless for that very reason. However, when the follower of a traditional religious group presses a claim of conscience that folds into one of the conventional, if controversial, perspectives within American public life, a judge may pass the religious claim across the metric of his or her own worldview.
Thus, for example, when an evangelical Christian school challenges the application of employment discrimination laws when discharging an unmarried pregnant school teacher or a Catholic hospital resists accreditation requirements for providing abortion-related training or services, a judge may find it more difficult not to think of how those claims stand against the judge’s own religious or political viewpoints. Accordingly, orthodox Christians who seek accommodations that reflect traditional religious values may not be at all well-positioned for litigative success in the modern era—especially before a judiciary that is drawn largely from the cultural elite.
Law Faculty Blogging.--
An article about law faculty blogging in the National Law Journal has received a lot of discussion in the legal blogosphere. Lawblogger extraordinaire Paul Caron has a nice roundup.
I wanted to comment further on a point highlighted by Ann Althouse:
[J]ust counting the numbers of bloggers is not very accurate. For example, Chicago has a high blogger count because it runs a group blog with a long list of faculty names. I'd like to see a weighted count — if you're going to get into counting — that reflects the actual amount of blogging that is going on. But then if you did that, you'd probably want to count the blogging that is specifically about law, as opposed to, say, "American Idol."
Indeed, the school-by-school counts of law professor bloggers are:
14 University of Chicago
7 University of California at Los Angeles
7 University of San Diego
5 George Washington
5 George Mason
4 Stanford
4 Northwestern
4 Ohio State
4 University of California, Davis
4 University of Cincinnati
The problem with this list is obvious: Can Chicago really be the leading blogging law school without a single major blogger on its full-time faculty? Dick Posner, who is a part-time senior lecturer there, runs an excellent and reasonably popular blog with Gary Becker that nonetheless gets in a month roughly as many visitors as Glenn Reynolds gets in a few peak hours in a single day.
Former dean and former provost Geoff Stone blogs at the extremely popular HuffingtonPost, but he contributed only one post to Huffington in the month of February.
Most of Chicago's bloggers post at the U. of Chicago Faculty Blog. Though also of high quality, it had barely more than a dozen posts during the entire month of February. It will probably evolve into a successful blog, but with 3-4 posts a week on average, there is not yet enough content to generate regular readers.
From skimming the list of the most popular blogs at The Truth Laid Bear on Tuesday night, it appears that the most popular blog run mostly or completely by full-time professors in any field is Instapundit (8th in traffic, 2d in links), followed perhaps by the Volokh Conspiracy (55th in traffic, 11th in links). Although the TruthLaidBear.com website doesn't track all blogs, it appears that we are a distant second to Glenn among all academic blogs, whether measured by links or by traffic, It is entirely possible that I've missed an academic blog in another field between Glenn's blog and Eugene's group blog.
In the number of links, Professor Bainbridge is 59th among all tracked blogs at TruthLaidBear (but 207th in traffic), and Althouse is 81st in links and 107th in traffic.
One of the problems in doing empirical research is the quantitative fallacy: the belief that what is easiest to count substantively counts the most. Although Chicago may develop into a significant blogging law school, it does not yet reach the influence in the blogosphere of UCLA, Tennessee, San Diego, GW, George Mason, or Wisconsin, among others.
Tuesday, February 28, 2006
Power Line Comments on the U.N. Conference on Islamic/Western Relations:
Much worth reading. Note particularly the criticisms of Archbishop Desmond Tutu's remarks, and the comparison between the Iranian President's pious remarks about how "We must respect the beliefs of other nations and religions whether we believe in them or not" and how Iran actually treats the beliefs of other religions within Iran.
Thanks to InstaPundit for the pointer.
Salman Rushdie, Ayaan Hirsi Ali, Bernard-Henri Lévy, and Others
publish a Manifesto, "Together facing the new totalitarianism": After having overcome fascism, Nazism, and Stalinism, the world now faces a new totalitarian global threat: Islamism.
We, writers, journalists, intellectuals, call for resistance to religious totalitarianism and for the promotion of freedom, equal opportunity and secular values for all.
The recent events, which occurred after the publication of drawings of Muhammed in European newspapers, have revealed the necessity of the struggle for these universal values. This struggle will not be won by arms, but in the ideological field. It is not a clash of civilisations nor an antagonism of West and East that we are witnessing, but a global struggle that confronts democrats and theocrats.
Like all totalitarianisms, Islamism is nurtured by fears and frustrations. The hate preachers bet on these feelings in order to form battalions destined to impose a liberticidal and unegalitarian world. But we clearly and firmly state: nothing, not even despair, justifies the choice of obscurantism, totalitarianism and hatred. Islamism is a reactionary ideology which kills equality, freedom and secularism wherever it is present. Its success can only lead to a world of domination: man's domination of woman, the Islamists' domination of all the others. To counter this, we must assure universal rights to oppressed or discriminated people.
We reject « cultural relativism », which consists in accepting that men and women of Muslim culture should be deprived of the right to equality, freedom and secular values in the name of respect for cultures and traditions. We refuse to renounce our critical spirit out of fear of being accused of "Islamophobia", an unfortunate concept which confuses criticism of Islam as a religion with stigmatisation of its believers.
We plead for the universality of freedom of expression, so that a critical spirit may be exercised on all continents, against all abuses and all dogmas.
We appeal to democrats and free spirits of all countries that our century should be one of Enlightenment, not of obscurantism.
12 signatures
Ayaan Hirsi Ali
Chahla Chafiq
Caroline Fourest
Bernard-Henri Lévy
Irshad Manji
Mehdi Mozaffari
Maryam Namazie
Taslima Nasreen
Salman Rushdie
Antoine Sfeir
Philippe Val
Ibn Warraq
Presentations:
Ayaan Hirsi Ali
Ayaan Hirsi Ali, from somilian origin, is member of Dutch parliement, member of the liberal party VVD. Writter of the film Submission which caused the assasination of Theo Van Gogh by an islamist in november 2004, she lives under police protection.
Chahla Chafiq
Chahla Chafiq, writer from iranian origin, exiled in France is a novelist and an essayist. She's the author of "Le nouvel homme islamiste , la prison politique en Iran " (2002). She also wrote novels such as "Chemins et brouillard" (2005).
Caroline Fourest
Essayist, editor in chief of Prochoix (a review who defend liberties against dogmatic and integrist ideologies), author of several reference books on « laicité » and fanatism : Tirs Croisés : la laïcité à l'épreuve des intégrismes juif, chrétien et musulman (with Fiammetta Venner), Frère Tariq : discours, stratégie et méthode de Tariq Ramadan, et la Tentation obscurantiste (Grasset, 2005). She receieved the National prize of laicité in 2005.
Bernard-Henri Lévy
French philosoph, born in Algeria, engaged against all the XXth century « ism » (Fascism, antisemitism, totalitarism, terrorism), he is the author of La Barbarie à visage humain, L'Idéologie française, La Pureté dangereuse, and more recently American Vertigo.
Irshad Manji
Irshad Manji is a Fellow at Yale University and the internationally best-selling author of "The Trouble with Islam Today: A Muslim's Call for Reform in Her Faith" (en francais: "Musulmane Mais Libre"). She speaks out for free expression based on the Koran itself. Née en Ouganda, elle a fui ce pays avec sa famille musulmane d'origine indienne à l'âge de quatre ans et vit maintenant au Canada, où ses émissions et ses livres connaissent un énorme succès.
Mehdi Mozaffari
Mehdi Mozaffari, professor from iranian origin and exiled in Denmark, is the author of several articles and books on islam and islamism such as : Authority in Islam: From Muhammad to Khomeini, Fatwa: Violence and Discourtesy and Glaobalization and Civilizations.
Maryam Namazie
Writer, TV International English producer; Director of the Worker-communist Party of Iran's International Relations; and 2005 winner of the National Secular Society's Secularist of the Year award.
Taslima Nasreen
Taslima Nasreen is born in Bangladesh. Doctor, her positions defending women and minorities brought her in trouble with a comittee of integrist called « Destroy Taslima » and to be persecuted as « apostate »
Salman Rushdie
Salman Rushdie is the author of nine novels, including Midnight's Children, The Satanic Verses and, most recently, Shalimar the Clown. He has received many literary awards, including the Booker Prize, the Whitbread Prize for Best Novel, Germany's Author of the Year Award, the European Union's Aristeion Prize, the Budapest Grand Prize for Literature, the Premio Mantova, and the Austrian State Prize for European Literature. He is a Commandeur of the Ordre des Arts et Lettres, an Honorary Professor in the Humanities at M.I.T., and the president of PEN American Center. His books have been translated into over 40 languages.
Philippe Val
Director of publication of Charlie Hebdo (Leftwing french newspaper who have republished the cartoons on the prophet Muhammad by solidarity with the danish citizens targeted by islamists).
Ibn Warraq
Ibn Warraq , author notably of Why I am Not a Muslim ; Leaving Islam : Apostates Speak Out ; and The Origins of the Koran , is at present Research Fellow at a New York Institute conducting philological and historical research into the Origins of Islam and its Holy Book.
Antoine Sfeir :
Born in Lebanon, christian, Antoine Sfeir choosed french nationality to live in an universalist and « laïc » (real secular) country. He is the director of Les cahiers de l'Orient and has published several reference books on islamism such as Les réseaux d'Allah (2001) et Liberté, égalité, Islam : la République face au communautarisme (2005).
Thanks to Agora and InstaPundit for the pointer.
Stuntz on the Future of Harvard:
Harvard lawprof Bill Stuntz has a very interesting (and very pessimistic) essay in The New Republic (free registration req'd) on the Lawrence Summers resignation and the future of Harvard. An excerpt: Harvard is the General Motors of American universities: rich, bureaucratic, and confident--a deadly combination. Fifty years from now, Larry Summers's resignation will be known as the moment when Harvard embraced GM's fate. From now on, the decline will likely be steep. And not only at Harvard: Among research universities as in the car market of generations past, other American institutions will follow the market leaders, straight to the bottom. The only question is who gets to play the role of Toyota in this metaphor.
I Love Dahlia Lithwick's Writing Style:
Check out these opening paragraphs about the Anna Nicole Smith case:
It's difficult to imagine two more different pieces of circuitry: The Supreme Court is hard-wired to suck out the drama from even the most emotionally charged conflicts. Bush v. Gore, the partial-birth-abortion case, the enemy-combatant cases -- each was briefed and argued like, well, like a bankruptcy case. Life, death, anthrax scares: The court somehow scatters its own unique brand of boringness and uptightness over every drama it touches.
Whereas Anna Nicole Smith exists exclusively for psychodrama. If she isn't wearing something sparkly or saying something filthy, she might not exist at all. Which is why this morning's collision between the two worlds is so compelling. It's probably well worth the hundreds of millions of dollars in question for Anna to rein in the jubblies, dress in sober black, and sit still for an hour. She doesn't give interviews or sign autographs as she enters or exits the marble tomb, although some reporters are mowed flat in the scrum. In the first dispute today -- the ethos of Anna Nicole versus the ethos of the Supreme Court -- the court is the clear winner....
Anna Nicole Smith Has Her Day in (the US Supreme) Court.--
I had been meaning to post a few days ago on today's Supreme Court argument in the Anna Nicole Smith case (since it overlaps with one of the areas I write in: Estates & Trusts). After the 9th Circuit reversed an 88.5 million dollar bankruptcy judgment in favor of Anna Nicole Smith, Anna--using her usual restraint--told a reporter: "The judges were so paid off."
Despite Anna's ridiculous claim about the 9th Circuit, Anna's lawyers sought certiorari in the US Supreme Court. Not only did the Court grant cert., but the Solicitor General filed a brief supporting her side of the case. So going into the oral arguments today, Anna Nicole Smith (aka Vickie Lynn Marshall) had 3 things going for her:
1. The Supreme Court reverses more cases than it affirms.
2. The 9th Circuit is known, rightly or wrongly, as the most reversed circuit.
3. One of the best predictors of winning in the Supreme Court is for a private citizen to have the Solicitor General join your side.
Then Anna had a fourth thing going for her: the 9th Circuit statement of the law is clearly wrong. Before I explain why, I reprint most of SCOTUSBlog's good account of the argument held today:
For all the media fascination with the second case argued Tuesday, Marshall v. Marshall (04-1544), the actual argument was a treat mainly for experts in civil procedure and the laws of bankruptcy and inheritance. The case involves what Judge Richard Posner once described as "one of the most mysterious and esoteric branches of the law of federal jurisdiction."
The single aspect of that issue that the Court was reviewing is whether the so-called "probate exception" to federal court jurisdiction bars federal bankruptcy courts from deciding a case that might implicate an estate that is simultaneously being administered in a state probate court. The tone was set for the argument when Vickie Lynn Marshall's attorney, Kent L. Richland of Los Angeles, began his presentation this way: "This is a bankruptcy case."
Vickie Lynn (who made fame under her performing name Anne Nicole Smith) was married for 14 months to billionaire Texan J. Howard Marshall. She has been seeking in federal bankruptcy court to recover more than $88.5 million in damages awarded her, against Marshall's son, Pierce. That sum is to compensate her for the son's attempt to undermine — allegedly by fraud — her claims that her husband intended to give her, while he was alive, a substantial gift.
Richland ultimately seemed to have most if not all of the Court with him, after overcoming a somewhat shaky start when he argued excessively that bankruptcy law allows no exceptions whatsoever for estate probate matters when those involves a disputed asset — here, Vickie Lynn's recovery in her tort lawsuit against Pierce. (Texas probate courts would later award Vickie Lynn nothing from the estate itself.)
Justice Antonin Scalia bluntly suggested that Richland back off of such a sweeping claim, and other Justices joined in. Essentially, Richland did. "It is not necessary to our case," he conceded. "Obviously, this case is miles away from probate...This case has nothing to do with probate jurisdiction." The attorney was not rigorously challenged after that, as the Justices explored the interrelationship between bankruptcy law and Texas probate law, seemingly inclined to favor the former.
Richland picked up some support from Deanne E. Maynard, an assistant to the U.S. solicitor general, who urged the Court to clear up the confusion among lower courts on the "probate exception" but to do so by giving it a very narrow scope, so that it applied only when specifically interpreting a will would be at stake. Justice Scalia, however, suggested that Maynard may have suggested taking away too much of a bankruptcy court's jurisdiction if will interpretation were completely beyond its reach.
A Yale law professor, G. Eric Brunstad, Jr., of New Haven, Conn., representing Pierce Marshall, made a thoroughly competent argument that Texas probate law should prevail — but it was an argument that attracted no significant support from the bench. His plea essentially boiled down to a claim that Vickie Lynn could bring her claim based on the tort verdict only by undermining the entire "estate plan" that had been probated in Texas court. "It is never appropriate," he argued, "for a federal court to invalidae a will or an estate plan," and that is what Vickie Lynn would have to do to prevail, he said. . . .
The problem with the 9th Circuit opinion is that it assigns to state probate courts jurisdiction over matters that determine the property subject to probate (often to the exclusion of federal courts), including specifically theories based on "tax liability, debt, gift, bequest, tort." This can't be right. State probate courts do not determine federal estate tax liability under the Internal Revenue Code, nor are they the main court source determining pensions and insurance governed by ERISA. So the 9th Circuit's statement of law can't stand.
Yet, even if the law announced by the 9th Circuit is overturned, as it almost certainly must be, there may be other ways that Anna could still lose her case eventually. For example, the District Court's opinion explicitly found that Texas law would recognize tortious interference with a lifetime gift, even though Texas had no authority on this one way or the other.
For those who are interested, the district court opinion (Marshall v. Marshall, 275 B.R. 5 (C.D. Cal. 2002), reversed by the 9th Circuit) has a fascinating account of Anna's courtship and marriage, as well as the court's staggering conclusions that Anna's stepson Pierce and/or his lawyer had committed repeated fraud by altering and backdating documents involved in the litigation. One surprising courtship fact: Anna met J. Howard Marshall because she was working the day shift at the strip club since she was too heavy to be assigned the better evening shift.
By the way, according to the Forbes list of the richest Americans, Pierce Marshall is worth 1.7 billion dollars, just behind Mark Cuban.
Wonkette, not surprisingly, is having a field day, with multiple posts, including this one.
UPDATE: The Bankruptcy Litigation Blog has a nice roundup of commentary on the Marshall (Smith) case.
C-Span Interview With Glenn Reynolds:
C-Span's Brian Lamb interviewed Glenn Reynolds recently for C-Span's new "Q-and-A" program. The goal of the Q-and-A program is to "introduce you to interesting people who are making things happen in politics, the media, education, and science & technology in hour-long conversations about their lives and their work." The video is here, and the transcript is here.
Chills:
I thought that videos involving Michael Jordan could not give me chills anymore. I was wrong.
Doctors and Guns:
Eugene's post on Saturday discussed an interesting bill before the Virginia legislature. It passed the Assembly 88-11, but was defeated in a Senate committee by a 6-9 vote. It seems that there is a reasonable chance that a similar bill might be introduced in the future in Virginia, or in other states. The bill states:
A. The Board may refuse to admit a candidate to any examination; refuse to issue a certificate or license to any applicant; reprimand any person; place any person on probation for such time as it may designate; suspend any license for a stated period of time or indefinitely; or revoke any license for any of the following acts of unprofessional conduct:...
22. Oral or written inquiry to a patient concerning the possession, ownership, or storage of firearms, where such inquiry has no relationship to the practice of the healing arts or the medical condition of the patient, and is for the purpose of gathering statistics or to justify patient counseling, unless such inquiry is the subject of a request, or related to a medical complaint, made by the patient.
The comments from Eugene's post raised many interesting arguments, on both sides of the issue. In this post, I would like to advance the debate and clarify the issues.
First, as I read the bill, it does not present a physician from inquiring about gun ownership in the home of a person who has demonstrated a high risk for suicide, or a person who has demonstrated a high risk for perpetrating a violent crime. Such persons should clearly be kept away from guns. Perhaps future bills should be modified to specifically include the exceptions.
Second, I think it's hardly clear that the bill would violate the First Amendment, or its Virginia counterpart (Art. I, sect. 12), which states:
That the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments; that any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people peaceably to assemble, and to petition the government for the redress of grievances.
As Eugene noted in his post, the boundaries of protection of speech by licensed professionals are very unclear. The bill is in the form of a regulation of medical ethics, a subject which is unquestionably within the Virginia legislature's authority. The bill determines, as have previous bills setting standards for medical ethics, that certain actions by a health care provider are a violation of medical ethics. Dr. Timothy Wheeler and I have previously argued that it is a violation of medical ethics (under the principle of boundary violation) for physicians to push an anti-gun agenda during a patient interview.
The U.S. Supreme Court decisions striking down legal-ethics restrictions on attorney advertising show that some state-imposed ethical rules for licensed professionals can violate the First Amendment. I encourage commenters to supply information about actual court cases which have addressed free speech isues, outside the context of advertising, regading professional regulation.
Given that existing case law appears to provide little if any guidance on the issue, I do not think that a legislator would be violating her oath to uphold the state and federal constitutions if she voted in favor of the bill.
The much stronger argument against the bill is that it violates free speech values. A legislator could reasonably say, "Even if a court probably would not declare the bill unconstitutional, I favor very broad protection for free speech, and — even though I also favor the right to bear arms and received an "A" rating from the NRA in my last election — I oppose almost all restrictions on free speech, and so I will vote against the bill." Such an argument appears to be what we might have heard from Senator Volokh, had he been a member of Virginia Senate.
I do not think that this view is wrong, but I also believe that reasonable, constitutionally-faithful legislators could vote the other way.
Let me address some of the arguments which commenters offered regarding the bill.
Physician speech against gun ownership is offensive. This was a straw man offered by opponents of the bill. I hope that no reader of this weblog favors banning speech merely because it is offensive.
The practical reality of medical coercion, under 21st century conditions. As medical practice existed in the early 20th century, most doctors enjoyed vast autonomy, and so did most patients. If you don't like what the doctor says, take your money and go to a new doctor — just as you leave one restaurant you don't like, and go eat somewhere else. To extent that medical care in early 21st century America is delivered under this free choice model, the arguments for regulating physician speech are weaker.
However, as many commenters pointed out, a very large percentage of people do not have practical free choice in medical care. For example, their employer medical plan may funnel them into a single HMO. It's true, as a matter of libertarian theory, that somebody earning $18,000 a year could opt out of the company medical plan, and seek out her own physician. It's also true that legislators can base decisions on real-world conditions, rather than theory. In the real-world conditions under which a great deal of medical care may be delivered under conditions in which the consumer does not have, practically speaking, free choice, the argument for consumer protection against ethical violations becomes stronger.
One issue the commenters did not discuss was protection of physicians. Again, in the 1910 health care model, the physician had tremendous freedom. Under the working conditions of modern medicine, many doctors have considerably less freedom. They may ask patients about guns, and provide anti-gun counseling, not because they want to, but because they are ordered to do so by insurance companies, HMOs, etc. (Again, the physician could always go into solo practice and stop taking patients who want to use medical insurance, but legislators can respond to practical realities.)
Of course there are some physicians who sincerely do want to provide anti-gun counseling. As the commenters noted, the recommended practice of the American Academy of Pediatrics and other groups which promote asking about guns is to promote follow-up counseling urging people to get rid of their guns, or, at the least, to keep them locked up under conditions which may make them useless during a sudden emergency.
Part of a legislator's job is to weigh empirical evidence and make policy conclusions based on that evidence. There is substantial evidence to suggest that disarming law-abiding people, or convincing them to "lock up their safety" (as Gun Owners of America puts it) significantly harms public safety and promotes violent crime. There is also contrary evidence, but there are sufficient facts on which reasonable legislator could conclude that disarmament is such a serious danger to public safety that preventing unwarranted disamament is a compelling state interest. I'm not saying that a legislator must reach such a conclusion, only that a reasonable legislator could. Alternatively, a legislator could legitimately be concerned that, although physician anti-gun counseling might have little aggregate impact on total firearms ownership in society, individual patients would be victimized by such counseling, and wo |