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Saturday, March 18, 2006

Against Impeaching Justice Ginsburg Over the Use of Foreign Law.--

A few days ago, John Hinderaker had a long post criticizing Justice Ruth Bader Ginsburg's defense of the Supreme Court's use of foreign law. Paul Mirengoff adds to John's post the statement:

It won't happen, of course, but I think there's a case to be made for impeaching Justice Ginsburg.

Paul then repeats his claim in a post of his own:

Last night, John criticized Justice Ginsburg for her speech in South Africa defending the use of foreign law and court decisions to interpretation of the American Constitution. I suggested that a good case can be made that Ginsburg should be impeached. That case will become even stronger to the extent that her willingness to use foreign law continues to inform her opinions.

I find the current debate over the Supreme Court's reference to foreign law somewhat strange, since the Supreme Court has cited foreign law for almost all of its history. In a new manuscript by my colleague Steve Calabresi and Stephanie Zimdahl, they document nearly all the uses of foreign law in the Court's history. It can be downloaded from SSRN at the end of their long abstract here.

Calabresi and Zimdahl take a somewhat more nuanced approach than does either Justice Ginsburg or her critics:

This Article [describes] . . . what the Supreme Court's practice has actually been from 1789 to 2005 with respect to citing foreign sources of law. We will show that the Court's citation of foreign sources of law in recent years is not unprecedented as Justice Scalia implies, but that citation to foreign sources of law is increasing in the modern era in ways that may be very problematic. We show that there have been some dramatic, if not notorious, instances of the Court citing foreign sources of law historically, as happened for example in the Dred Scott case and in the anti-polygamy case, Reynolds v. United States. Moreover, we will show that the debate over citing foreign sources of law in American judicial decisions is not a new one at all. Indeed, the practice was debated as early as 1820 when Justice Livingston, in a sentiment echoed many years later by Justice Scalia, responded to Justice Joseph Story's citation of foreign sources of law in a Supreme Court case to provide a definition for the crime of piracy, by stating that it it is not perceived why a reference to the laws of China, or to any other foreign code, would not have answered the purpose quite as well as the one which has been resorted to. Thus, Scalia's modern lament finds an echo as long ago as 1820 in the U.S. reports. . . .

This article thus examines the many instances between 1789 and 2005 in which the Court has cited foreign sources of law and points out that several themes become apparent. First, on some occasions, the Court cites such sources as evidence of the reasonableness of its decisions: foreign practice is reviewed as to whether an American practice is reasonable or unusual. Second, we think it is striking that the three Justices who have historically been most likely to cite foreign sources of law in their opinions, Justices Joseph Story, Felix Frankfurter, and Stephen Breyer, were all, at some point in their careers, professors at Harvard Law School. This suggests a Harvard nexus to the debate over citation of foreign sources of law, which has gone previously unobserved. . . .

Our analysis of the Court's practice leads us to several conclusions.

First, we believe those who say the Court has never before cited or relied upon foreign sources of law are clearly and demonstrably wrong. In fact, the Court has relied on such sources to some extent throughout its history.

Second, the Court has, however, cited foreign sources of law with much more frequency in far more important constitutional cases in recent years, as Justice Scalia has suggested, and in addition the Court has tended to cite foreign sources of law in some of its most problematic opinions such as Dred Scott, Reynolds, and Roe v. Wade. This suggests Scalia is right to be wary of the Court's new trend in this direction.

Third, as Professor Calabresi has argued elsewhere, citation to foreign law is most justifiable when the U.S. Constitution asks the justices to weigh whether a certain practice is reasonable, as it does in the Fourth Amendment, or whether it is unusual, as it does in the Eighth Amendment. In contrast, citation to foreign law is least justifiable when the Court is asked to determine whether an unenumerated right is deeply rooted in American history and tradition, as was the case in Lawrence, or whether a federal statute violates American federalism rules, as it was asked to do in Printz v. United States. In these cases, we agree with Justice Scalia that the Court's task is to interpret the original meaning of our Constitution and not to determine the current day reasonableness or unusualness of a legislative practice. We thus think, with Justice Scalia, that in the over-whelming majority of non-Fourth and Eighth Amendment, it will not be appropriate for the Supreme Court to cite foreign sources of law. Citation of such law is, in fact, a sign that the Court is falling into policy-making, as it did in Dred Scott, Reynolds, and Roe v. Wade, and this in turn suggests the justices are behaving illegitimately.

While John and Paul make several good points in their critiques of Justice Ginsburg's speech on foreign law, the case for Justice Ginsburg's impeachment is neither outlined by Paul, nor do I see any serious basis for it.

I don't know whether a Justice should ever be impeached for holding a bad judicial philosophy, but such a philosophy would have to be far more unusual than Justice Ginsburg's to form a plausible basis for impeachment. By the way, I don't read Paul as actually advocating that Ginsburg be impeached, just opining that a "good case" could be made for such a move.

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Grim Milestone Reached: US Deaths in Iraq Surpass Worst Month in Vietnam.--

As the War in Iraq approaches its third anniversary on March 20, 2006, U.S. military deaths in Iraq have just passed another grim milestone. The worst month of U.S. military deaths in Vietnam was May 1968: 2,316 lives. The second worst month in Vietnam was February 1968: 2,293 lives.

According to the website ICasualties.org, which tracks U.S. military deaths in Iraq, the total U.S. military deaths in Iraq since March 20, 2003 is 2,317 lives, one more than the worst month in Vietnam. In this count of 2,317 deaths, ICasualties.org includes 5 reported U.S. deaths pending Department of Defense confirmation.

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Cathy Seipp on Walkout:

Seipp follows up on aspects of Walkout that the movie -- which is about a 1968 walkout by Hispanic students protesting L.A. education policies -- somehow leaves out, especially the legacy of "bilingual education" that seems to have on balance been a disaster for Hispanic students. Here's an excerpt, though the whole piece is much worth reading:

As it happens, this year marks the 10th anniversary of the state’s anti-bilingual backlash, which began when Skid Row activist and Episcopal priest Alice Callaghan organized about 100 Spanish-speaking parents who wanted their Ninth Street Elementary children to learn English in class.

In the film, spunky 17-year-old heroine Paula Crisostomo, now an administrator at Occidental College, has a friend and fellow protester named Vickie, who (at the end we learn) grew up to be Victoria Castro, L.A. school board member from 1993 to 1997 and board president in 1998. The film doesn’t mention that after Castro refused to help those frustrated Ninth Street parents, they staged a walkout of their own, an incident that inspired Ron Unz to back Prop. 227 two years later....

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George Mason Advances!

Props to George Mason for a dominating victory over Michigan State last night. And it was great for Jim Larranaga to prevail despite suspending Tony Skinn. In the world of modern college sports it is great to see a guy do the right thing and still win.

The hardest part was being away from my Mega March Madness for the first two days of the tourney. I was on vacation visiting family for Spring Break and--horrors!--I had to watch whatever CBS put in front of me. How do people still live like that?

Consider this an open thread to talk about the first two days of March Madness if you like.

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Follow-Up To Beauty Study:

Last fall I posted a link to a study on "beauty" and other attributes. The researchers have a follow-up study if you are interested in participating:

Would you like to participate in a scientific study undertaken by Niclas Berggren (The Ratio Institute), Henrik Jordahl (Uppsala University) and Panu Poutvaara (University of Helsinki)? They are studying whether beauty and some related traits play a role in politics. This is a follow-up study of a previous study from last fall. You can participate in this one irrespective of whether you participated in the earlier study.

They would appreciate it greatly if you would assess some photos of politicians at the following link:

http://www.beautystudy.se/

Please write VOLOKH when asked about where you heard about the study.

There is a chance to win €100 for participants. You can also choose to receive an executive summary of the results (in June). The identity of respondents is kept confidential.

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Friday, March 17, 2006

"A Certain Four-Letter Verb

for 'copulate,' of possible Scandinavian origin (see Webster’s New Collegiate Dictionary (1977) p. 463, col. 2) appears frequently in the record along with its gerundive and a related noun involving the maternal parent," says footnote 1 of this California Court of Appeal opinion.

Thanks to How Appealing for the pointer.

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Justice Ginsburg on Foreign Law and the U.S. Constitution:

I haven't followed the debate over the use of foreign precedents, international treaties, etc., to interpret U.S. law as closely as I should. Thus, I was, but perhaps shouldn't have been, surprised and rather horrified to read this speech by Justice Ruth Bader Ginsburg. For example, she writes:

Interpreting U.S. Supreme Court precedent, a divided U.S. Court of Appeals for the District of Columbia Circuit held in 1989, during my tenure on that court, that foreign plaintiffs acting abroad - plaintiffs were Indian family planning organizations - had no First Amendment rights, and therefore no standing to assert a violation of such rights by U.S. officials. In particular, the Indian organizations complained of a condition on U.S. grant money: the recipients could not engage in any abortion counseling, even in a separate entity funded by non-U.S. sources. In dissent, I resisted the notion that in an encounter between the United States and the people of another land, "the amendment we prize as 'first' has no force in court." I expressed the expectation that the position taken in the Restatement (Third) of Foreign Relations would one day accurately describe our law. "[W]herever the United States acts," the Restatement projects, "'it can only act in accordance with the limitations imposed by the Constitution.'".... Among examples from that [October 2002] Term, I would include the Michigan University affirmative action cases decided June 23, 2003. Although the Court splintered, it upheld the Michigan Law School program. In separate opinions, I looked to two United Nations Conventions: the 1965 Convention on the Elimination of all Forms of Racial Discrimination, which the United States has ratified; and the 1979 Convention on the Elimination of All Forms of Discrimination Against Women, which, sadly, the United States has not yet ratified. Both Conventions distinguish between impermissible policies of oppression or exclusion, and permissible policies of inclusion, "temporary special measures aimed at accelerating de facto equality." The U.S. Supreme Court's decision in the Michigan Law School case, I observed, "accords with the international understanding of the [purpose and propriety] of affirmative action."

Indian plaintiffs (that is, residents and citizens of India) should have the right to go to U.S. courts and have them tell Congress how to spend U.S. taxpayers' money? The Supreme Court should rely on a "Convention" that the U.S. hasn't ratified? The meaning of the Fourteenth Amendment should be determined, in part, by "Conventions" ratified by such paragons of equality as Cuba, Libya, Syria, Saudi Arabia, Burundi, Burkina Faso, Chad, China, Kazakhstan, Vietnam, and so on, which therefore represent "international understanding"? I don't know whether to laugh or to cry.

Thanks to reader John J. Vecchione for the tip; his thoughts on the speech can be viewed here (3/16, no permalink available).

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Swell New Podcasts:

The Independence Institute has started a new podcast series, iVoices. You can listen on-line, or download mp3 files. We plan to publish many, many podcasts, but so far, we have three available: I discuss the Internet and New Media, and offer some cautions about triumphalist claims about the alleged demise of the traditional media. Our Campus Accountability Project Director Jessica Corry reports her experience on the University of Colorado's Blue Ribbon Diversity Panel, where diversity of thought was forbidden. And Senior Fellow Dennis Polhill discusses petition rights.

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Danish Prosecutor Rules the Mohammed Cartoons Don't Violate Danish Law:

Danish law does prohibit certain kinds of criticism of religion and religious groups, but the prosecutor concludes that these cartoons didn't qualify. I'm on the road right now (up at Stanford for a conference on the jurisprudential legacies of Chief Justice Rehnquist and Justice O'Connor), so while I've read the ruling I don't have the time to blog more about it. But for now, the ruling suggests to me that (1) Danish prosecutors are willing to read Danish speech restrictions fairly narrowly, which is to their credit, but (2) despite this, Danish law does on its face bar a good deal of speech that's critical of religion, and in many cases it will be quite hard for publishers or speakers to tell up front how this law will be applied.

Thanks to Peter Herngaard for the pointer.

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Same-Sex Marriage and Polygamous Marriage:

Ann Althouse responds to Charles Krauthammer's slippery slope argument:

If Krauthammer has been writing about this subject for 10 years, it boggles the mind that the obvious distinction has not yet dawned on him.

Legal marriage isn't just about love, it's an economic arrangement. Having the state authorize your union is not the same thing as having your friends and neighbors approve of you and your religious leaders bless you. It affects taxes and employee benefits — huge amounts of money. A gay person with a pension and a health insurance plan is incapable of extending those benefits to his (or her) partner. He (or she) can't file a joint tax return. That's not fair. A polygamous marriage, however, puts a group of persons in a position to claim more economic benefits than the traditional heterosexual couple. That doesn't appeal to our sense of fairness. . . .

[I]t's not all about love and who respects what. It's also about economics. And in that dimension, it's easy to distinguish polygamy.

I generally much like Prof. Althouse's work, but here I'm unpersuaded. She gives a good argument for not giving polygamous families more benefits than two-member families have. But it's easy to exepct what polygamous families would say in response:

We're not asking for benefits that would extend to all the spouses in the family. All we're asking for is what two-member families get. We want the symbolic value of having our marriages recognized as marriages, which doesn't impose economic costs on anyone. We want other no-cost or very low-cost benefits. And for the costly benefits, such as insurance and pensions, we'll be happy if the law just covers two members of our marriage; we'll take care of the other members on our own.

We don't want coverage for three, four, or five members. We just want coverage for two, just like the rest of you get. But it's unfair if you entirely reject our marriage, and give us coverage only for one.

I've argued in my Same-Sex Marriage and Slippery Slopes that polygamous marriages are indeed unlikely to be recognized in the U.S., even if same-sex marriages are recognized. If the same-sex-marriage-recognition movement wins, and especially if it wins by stressing certain kinds of arguments, those arguments may indeed be logically usable by polygamy-recognition forces. But, as I argued, "It takes more than a plausible argument to win battles like this, either in the legislature or in court. It makes more than a plausible argument plus some slippery slope effects. It takes a broadly supported political and legal movement (whether of a majority or a committed substantial minority) of the sort that gay rights advocates have managed to muster. I doubt that there’ll be such a movement for polygamist rights, even with the potential slippery slope effects I describe."

Nonetheless, though I'm not terribly impressed by the slippery-slope-towards-recognizing-polygamy arguments, I don't think they can be dismissed as easily as Prof. Althouse suggests. It's not enough to come up with a plausible distinction between what one supports and the extreme version of what others support. One also has to deal with the more modest versions that the others will come up with in response to your distinction.

UPDATE: My disagreement with Prof. Althouse may be less than I thought; in an update to her post, she writes:

I'm not saying that the distinction is so obvious that everyone will accept it. I'm just refuting Krauthammer, who thinks there is no way to stop the slip down the slope from gay marriage to polygamy. I'm against the scare tactic that is being widely used: don't accept gay marriage or nothing will stave off polygamy. All I'm saying is that there is a principled basis for drawing a line between the two. Nothing compels us to choose that line, however. I freely admit that.
On that, I agree; as I've stressed in all my writing on slippery slopes, it is very rarely the case that the first step will absolutely positively guarantee to lead to the future step (as in "nothing will stave off"). People who overstate the slippery slope argument by making it sound like the bottom of the slope is inevitable end up weakening their own position.

Nonetheless, it still seems to me that a distinction between recognizing same-sex marriage and recognizing polygamous marriage should -- to be practically useful and not just theoretically plausible -- do more than just explain why the most extreme version of recognizing polygamous marriage (recognize my marriage and put all eight of my wives on my insurance plan) is distinguishable from recognition of same-sex marriage. It should also explain why the likely alternatives that you'll be given in response (recognize my marriage and put one of my wives on my insurance plan) is distinguishable.

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David Boaz's Blog:

My friend David Boaz of the Cato Institute has a new blog at the Guardian, and it's off to a great start. David's first post attempts to explain why conservatives love Bush so much, even though his economic policies are anything but conservative:

As a nominating speech for President Grover Cleveland once put it, "They love him most for the enemies he has made." Conservatives love Bush because the left hates him. If the New York Times would run a front-page story headlined "Bush Delivers the Big Government Clinton Never Did," and the lefty bloggers would pick it up and run with it, maybe conservatives would catch on.

So here's your challenge, lefty bloggers: If you don't like the tree-chopping, Falwell-loving, cowboy president--if you want his presidency fatally wounded for the next three years--then start praising him. One good Paul Krugman column taking off from that USA Today story on the surge in entitlements recipients under Bush, one Daily Kos lead on how Clinton flopped on national health care but Bush twisted every arm in the GOP to get a multi-trillion-dollar prescription drug benefit for the elderly, one cover story in the Nation on how Bush has acknowledged federal responsibility for everything from floods in New Orleans to troubled teenagers, and maybe, just maybe, National Review and the Powerline blog and Fox News would come to their senses. Bush is a Rockefeller Republican in cowboy boots, and it's time conservatives stopped looking at the boots instead of the policies.

I made a similar point a couple of years ago in a post called "George Bush, Liberal Darling," which provoked a storm of reaction from the left blogosphere.

UPDATE: Kieran Healy is entitled to his opinion, but his implication that David Boaz and I were once Bush supporters who have now turned on him for "the sake of their own conscience," is simply wrong. I've never been a fan of the president's, though of course I don't disagree with him on everything. I criticized him rather severely in 2004, and managed to find a far better candidate to vote for, and I didn't vote for Bush in 2000, either. And, though I don't want to speak for Boaz, I suspect that he has been even less of a fan than I have.

FURTHER UPDATE: The basic point of Boaz's post, it seems to me, is not that Bush is a liberal, or that liberals always support government spending. Rather, it's given that the Left will seemingly attack Bush for whatever he does, regardless of whether it promotes a conservative or a liberal agenda [see, e.g., the persistent attacks on the prescription drug benefit plan, the largest entitlement program since the Great Society, as a "giveaway to the pharmaceutical industry" because it doesn't fix drug prices. Food stamps don't control food prices, a giveaway to Big Ag? Student loans and grants don't control tuition prices, a giveaway to Big Education? Medicare originally did not control doctors' fees, a giveaway to doctors and hospitals? Section 8 vouchers don't control rent prices, a giveaway to landlords? Since when does the government's failure to include price controls with subsidies lead to so much indignation on the left?]. Under those circumstances, conservatives believe either (a) Bush is not being attacked for his policies, but for being a Republican, and thus good Republicans should defend him; and/or (b) If the Left were in power, they would outspend and outwaste and outnationalize Bush on entitlements, education, health care, etc., so better to support Bush than undermine him and let the Left take over.

We saw a similar phenomenon on the right with Clinton, with conservatives irrationally attacking him even when he pursued conservative policies, and the left, as a whole, swallowing their doubts and defending him. It wasn't so irrational, I suppose, if the object was to regain power, but it was if the object was to promote conservative economic policies. The right (barely) succeeded in winning the 2000 election, but also destroyed the national political commitment to fiscal restraint that had survived from Reagan to Clinton.

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London Review of Books Article on the Israel Lobby:

The London Review of Books has a lengthy article by Professors John Mearsheimer of University of Chicago and Stephen Walt of Harvard, arguing that given that Israel is such a malevolent country that acts in so many ways contrary to U.S. interets, support for Israel in the U.S. must be primarily, perhaps solely, a result of the power of the pro-Israel political lobby.

The article is so full of misrepresentations and distortions that it would take me an entire day to properly Fisk it. Fortunately, the authors discredit themselves in the very first paragraph.

For the past several decades, and especially since the Six-Day War in 1967, the centrepiece of US Middle Eastern policy has been its relationship with Israel. The combination of unwavering support for Israel and the related effort to spread ‘democracy’ throughout the region has inflamed Arab and Islamic opinion and jeopardised not only US security but that of much of the rest of the world.

This is sheer nonsense [clarification: the nonsense is the purported relationship between U.S. support for Israel and U.S. support for democratization of the Middle East. As I explain below, given that Israel is opposed to the latter policy, it's hard to see how it's a "related" effort]. The Israeli government has never supported an agenda of democratizing the Middle East. Jimmy Carter wanted to democratize Iran, and his administration encouraged the Shah to abdicate. Israel had a fine relationship with the Shah, would have been happy to see him retain power, and was very unhappy with how the U.S. undermined him, leading to the rise of Khomeinism is Iran. Today, Israel wanted to postpone or cancel the Palestinian elections, but relented under pressure from the U.S. Israel has, perhaps foolishly, put its faith in dictators willing to sign peace treaties or otherwise cooperate with Israel, including Egypt's Mubarak, and the monarchies in Morocco and Jordan. The last thing Israel wants right now is for any of these countries to become democracies, as public opinion is extremely hostile to Israel in each country. Israel previously put its faith in Yasser Arafat post-Oslo, precisely because it thought he could impose calm on his subjects. The only major public figure in Israel who has been a proponent of spreading democracy in the Middle East is Natan Sharansky, and he is considered a crank by most Israelis, and even he has been skeptical of U.S. democraticization policy with regard to the Palestinians.

I can't really make out what the authors' argument is in attributing either the invasion of Iraq (even though they acknowledge that top Israeli officials thought Iran was more of a threat to Israel) or the policy of spreading democracy to the Middle East to the pro-Israel lobby, but it seems to be something along the lines of the following: Neoconservatives wanted to invade Iraq and spread democracy to the Middle East; Israel thought it would benefit from the invasion of Iraq and the toppling of Saddam Hussein (no mention of the fact that Israel does not think it would benefit from democratization); and neoconservatives tend to be strong supporters of Israel.

As I've noted before, neoconservatives were also strong supporters of U.S. military involvement in the Balkans. Does that mean that pro-Israel lobby was behind Clinton's actions in Bosnia?

One expects a lot better from Harvard and Chicago professors than this.

UPDATE: Rosner's blog asks, regarding the study in question:

Do you ignore it - having concluded it is biased, one-sided, foolish, repetitive, and most of all, has nothing new to offer - or do you write about it, knowing that the "Harvard," "Chicago," "professors," "Kennedy school" labels will make it acceptable anyway, even news-worthy, in the eyes of many. In short: Does one need cooperate with the advancement of the cause of academic garbage?

And Rosner, like me, doesn't have the time and energy for a full-scale Fisking: "But let us not start arguing about every little detail in this paper. It will take a long time, and it will be a waste of time, as it is clear that the writers are not here to be convinced that they're wrong."

And from Martin Kramer: "This newest article, obviously the work of Walt more than Mearsheimer, cobbles together a lot of half-truths and untruths that have been out there on the far fringe, and gives them 'academic respectability.'"

Drezner has a reasonably thorough critique, including,"Shot through these papers are an awful lot of casual assertions that don't hold up to close scrutiny."

And here's a New York Sun editorial criticizing the study.


[Puzzleblogger Kevan Choset, March 17, 2006 at 11:03am] Trackbacks
People In Common:

What do these people have in common (besides their names starting with the letter 'J')?

  • J.R. Ewing, Jon Stewart, Julia Duffy, James Buchanan.

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Nice headline in . . .

today's International Herald Tribune: "French in streets, but it's not '68; Protesters seek to 'keep what we have'." That sums it up pretty nicely -- the student protesters (who I'm sure consider themselves great radicals) are, this time, protesting for the status quo, in the face of the government's efforts to change French labor law so as to allow employers to fire young workers without cause after two years. [The inability of employers to fire workers is, in much of the E.U., a primary cause of perpetually stagnant job growth statistics -- though it looks like the French government is losing its battle of trying to persuade people about that].

Incidentally -- I'm reading the IHT because I'm spending this semester over in Bologna, Italy, a truly magnificent city and a fascinating place to spend some time. I'll have postings here on the VC from time to time -- but in collaboration with a friend and colleague, David Castronuovo, who teaches in the Italian Department at Skidmore College, I'm keeping a running record of my adventures in Italy over at a blog we've set up here. I don't know if VC readers will find it to be of interest, but feel free to check it out if you do.

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Thursday, March 16, 2006

Housing Warning from Federal Reserve Board Governor:

Via The Housing Bubble Blog:

"The Federal Reserve has no intention of preserving all of the recent gains in home price values, said Federal Reserve board governor Donald Kohn on Thursday. If real estate prices begin to erode, homeowners should not expect to see all the gains of recent years preserved by monetary policy actions,' Kohn said in a speech."

"In his remarks, Kohn attacked the popular 'Greenspan put' theory that Fed policy would always protect investors from sharp asset market drops while doing nothing to restrain these markets when prices rise. 'This argument strikes me as a misreading of history,' Kohn said. 'Conventional policy as practiced by the Federal Reserve has not insulated investors from downside risk,' he said."

"'Whatever might have once been thought about the existence of a 'Greenspan put,' stock market, investors could not have endured the experience of the last five years in the United States and concluded that they were hedged on the downside by asymmetric monetary policy,’ Kohn said."

“‘The same consideration apply to homeowners: All else being equal, interest rates are higher now than they would be were real estate valuations less lofty; and if real estate prices begin to erode. Homeowners should not expect to see all the gains of recent years preserved by monetary policy actions,’ Kohn said.”

Am I misinterpreting, or does the bolded quotation mean that the Fed has raised short-term interest rates higher than it would have otherwise in order to prick the housing bubble? [Which means, assumedly, that the Fed won't STOP raising rates until housing prices decline?]

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The Obligation to Defend Unpopular Clients.--

Gail Heriot at the RightCoast posts on the appearance that Ropes and Gray may have ceased to represent an unpopular client because of opposition from Harvard law students. The unpopular client was Catholic Charities of Boston:

If yesterday's Boston Globe story is to be believed, the estimable Ropes & Gray attorneys may have been intimidated into abandoning an existing client by a group of (gasp!) unhappy Harvard law students who threatened not to like them anymore.

Up until two weeks ago, Ropes & Gray represented Catholic Charities of Boston, which in addition to its other charitable work, provided adoption services. In particular, it excelled in "hard to adopt cases" in which the child involved was older than the average adopted child, handicapped, or bore the scars of abuse or addiction. Catholic Charities came under fire, because its policy was not to place children with gay couples, and Massachusetts law now prohibits adoption agencies from discriminating on the basis of sexual orientation. Catholic Charities felt it could not abandon Catholic teachings in this area and apparently sought a religious dispensation from the law.

This did not sit well with Harvard's gay and lesbian students, according to the Boston Globe. . . .

Of course, Ropes & Gray does not admit that it was intimidated by a bunch of law students. (Startlingly, however, it does not deny it.) But the ONLY acceptable response to a bunch snot-nosed brats telling it whom to represent is to tell them to take a hike. If Ropes & Gray had been even considering terminating its representation of Catholic Charities for any reason before receiving the student threats (or even a whiff of threats), it should have insisted on continuing once that message was received. And that would be true whether the students were angry because Catholic Charities opposes gay adoptions, angry because it supports them or just plain angry. Even appearing to cave to such tactics is inappropriate. And an attorney who fails to understand this isn't fit to appear before a court of law.

If law students begin lobbying to prevent lawyers from representing unethical or unpopular clients (and I don't pretend to know precisely what happened with Ropes & Gray), I would think that reformist students would start with their own law school criminal clinics, where in most clinics a large number of their clients have done very bad things to innocent people. Or maybe idealistic students can switch their law school criminal clinics to working on the prosecution side to avoid representing the most unpopular clients (though, of course, not all prosecutors are always ethical).

If this "reform" does not strike people as an attractive switch, then perhaps they might take seriously Professor Heriot's admonition to continue to represent unpopular clients.

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Women and Men, Abortion and Excuse from Child Support Obligations:

Cathy Young has some interesting thoughts on the subject.

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Antidiscrimination Rules Imposed on University Groups:

My sense is that many campus antidiscrimination rules (1) were originally aimed at discrimination by social organizations such as fraternities, sororities, and eating clubs, and that (2) their drafters didn’t think much about how the rules might burden ideological groups’ ability to disseminate their ideologies (for instance, if a "no religious discrimination by student groups" rule interferes with a religious group's ability to maintain its identity as a religious group). But I haven't been able to find much support for this assumption, which makes me wonder whether it's accurate.

Does anyone have any pointers to places that might either support or contradict my assumption? The more detail, of course, the better. If you'd be so kind, please limit comments to information about this factual issue, and not a discussion about whether such rules are a good idea. Thanks!

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Armed Resistance to the Holocaust:

That's the title of my forthcoming article in the May 2006 issue of NATIV, the journal of the Ariel Center for Policy Research. (The Ariel Center is a think tank in Jerusalem; its main audience is Israeli policy intellectuals and policymakers.) The final article will be published in Hebrew and English. In the meantime, you can read an English draft in PDF or HTML. Comments and suggestions for improvement are welcome.

Summary: Contrary to myth of Jewish passivity, many Jews did fight back during the Holocaust. They shut down the extermination camp at Sobibor, rose up in the Warsaw Ghetto, and fought in the woods and swamps all over Eastern Europe. Indeed, Jews resisted at a higher rate than did any other population under Nazi rule. The experience of the Holocaust shows why Jews, and all people of good will, should support the right of potential genocide victims to possess defensive arms, and refutes the notion that violence is necessarily immoral.

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Odd Automated Phone Call for IL Governor Blagojevich mispronounces his name.--

In Illinois, next Tuesday is primary election day. As someone who usually votes in the Democratic primary, I have been getting automated political phone calls from Democratic candidates.

I just got an odd call from Planned Parenthood on behalf of Governor Rod Blagojevich (bla-GOY-a-vich).

What was odd was not the boilerplate about a "woman's right to choose" or the Bush administration, but the fact that the recorded spokeswoman for Blagojevich referred to him at least four times incorrectly as "bla-GOYD-a-vich." The message ended with a reference to things "here in Illinois." I tried *69 to find the origin of the call, but the supposed originating number was "000-000-0000."

Of one thing I'm reasonably certain: the spokeswoman was not from "here in Illinois."

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Tufts Panel on the Mohammed Cartoons:

This story describes the panel, which was sponsored by three departments or centers in the school (the International Relations department, the Peace and Justice Studies department, and the Fares Center for Eastern Mediterranean Studies) as well as three other groups. Oddly, as best I can tell, all five panelists seemed to be largely critical of the publication of the cartoons.

Do any of our readers know more about the panel? Was it more balanced than the story suggests? (Surely it wouldn't be the first time that a college newspaper, or any newspaper, failed to properly capture the spirit of an event.)

Seems to me that when an academic institution (as opposed to an advocacy group) participates in putting together a panel on a contested subject such as this one, it makes sense to include the cartoons' defenders as well as their critics. I wouldn't by any means impose such balance as a legal or even administrative requirement, and one can imagine situations where the balance is unnecessary: A panel on paleontology need not, for instance, have a Young Earther on it. But the cartoons controversy seems to be the sort of topic on which real debate would be helpful, and on which universities should try to provide real debate.

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Daily Illini Fires Editor Who Published the Mohammed Cartoons:

Details here; my earlier post on the subject here.

17 Comments

More Chutzpah:

Orin reports:

The Lodi (CA) News-Sentinel has an interesting story about a city dump truck driver who accidentally crashed a city dump truck into his own private truck, jointly owned by himself and his wife. He then asked the city to pay for the damages, on the ground that a city employee had damaged the truck.

27 Comments

Two Speeches in San Francisco Today: Sorry for the last minute posting, but things have been rather hectic the past few days. I am speaking later today about Scalia's Infidelity: A Critique of Faint-Hearted Originalism, at two Federalist Society sponsored talks:

The first is at noon at the University of San Francisco School of Law at 2130 Fulton Street, room 103.

The second is at 5:00PM at Golden Gate University School of Law at 536 Mission.

Sirhan Sirhan denied parole.--

Sirhan Sirhan, the Palestinian extremist who murdered Robert Kennedy, was again denied parole in California:

A CALIFORNIA parole board has refused to release Sirhan Sirhan, who killed US presidential candidate Robert F Kennedy in 1968, saying the assassin remained a danger to society.

Sirhan opted not to attend today's parole board hearing and did not send anyone to represent him, Tip Kindel of the California Department of Corrections and Rehabilitation said.

"Essentially, the board found he continues to be a danger to public safety and is not suitable to parole," Mr Kindel said.

"He was given two opportunities by the panel to show up, and declined."

The board concluded Sirhan killed Kennedy in a "cold, calculated and callous manner" with disregard for the senator and those with him, Mr Kindel said. Psychiatric exam results presented to the board indicated Sirhan "hates Americans and, if released, wants to be involved in Middle East politics". [Tip to Tim Blair]

One of my favorite examples of Chutzpah was Sirhan's statement to the parole board in 1982:

"If Robert Kennedy were alive today, he would not countenance singling me out for this kind of treatment."

I suppose that it is just Sirhan's bad luck that somebody killed Robert Kennedy.

This is a real-world example of the classic plea for mercy: "A boy is on trial for murdering his parents, and he begs of the judge leniency because he is an orphan."

28 Comments

Is African American Enrollment in Law School Down?:

One frequently hears that the enrollment of African American students in law school has "declined," calling for desperate measures such as the ABA's new "diversity" standard. [See, e.g., a statement from Marian M. Yim, Chairperson, Education Subcommittee, ABA Council on Racial and Ethnic Justice, stating that there is a "growing crising [sic] in declining enrollment of African-American and Latino students in law school."] Putting aside the relevant legal and policies issues, is it true that African American enrollment has declined? Yes, but. Data on the ABA's website (if someone can tell me how to reproduce the chart in this post, I will) shows that enrollment of African-American students leaped from 5,894 in 1986 to 9,681 in 1994, a better than 60% increase in just eight years. Enrollment then declined slightly, reaching a low of 9,271 in 1998, and then began to rise slowly again. In 2004, the last year for which data is available, the total reached 9,488.

In short, African-American enrollment has indeed "declined" if you use 1994 as the baseline. On the other hand, if you use 1986 as a baseline, African-American enrollment has risen by over 60%, but the increase essentially came in one large boom between 1986 and 1994. If that increase had happened gradually between 1986 and 2004, the trend line would show a steady increase in African-American students. So it's correct to state that enrollment of African-American students has declined since 1994, but it's a bit misleading if you don't acknowledge that the 1994 statistics reflected a seemingly anomalous large increase (why the sudden increase at that time? I don't have a clue) over a very short period of time.

Academic Year No. of Schools Reporting 1st Year 2nd Year 3rd Year 4th Year TOTAL
2004-2005 185/188 3,457 2,873 2,845 313 9,488
2003-2004 184/187 3,300 3,008 2,787 342 9,437
2001-2002 181/184 3,474 2,867 2,737 334 9,412
2000-2001 180/183 3,402 2,890 2,757 305 9,354

1999-2000

179/182

3,353

2,903

2,700

316

9,272

1998-99

178/181

3,478

2,728

2,754

311

9,271

1997-98

175/178

3,126

2,752

2,887

367

9,132

1996-97

176/179

3,223

3,013

2,991

315

9,542

1995-96

175/178

3,474

3,161

2,855

289

9,542

1994-95

174/177

3,600

3,000

2,771

310

9,681

1993-94

173/176

3,455

2,846

2,573

282

9,156

1992-93

173/176

3,303

2,603

2,465

267

8,638

1991-92

173/176

3,169

2,556

2,196

228

8,149

1990-91

172/175

2,982

2,222

2,023

205

7,432

1989-90

172/175

2,628

2,128

1,816

219

6,791

1988-89

171/174

2,463

1,913

1,728

217

6,321

1987-88

171/175

2,339

1,761

1,690

238

6,028

1986-87

171/175

2,159

1,800

1,735

200

5,894

1985-86

172/175

1,800

1,838

1,791

240

6,052

1984-85

171/174

1,735

1,878

1,686

177

5,955

1983-84

170/173

1,735

1,813

1,711

196

5,967

1982-83

169/172

2,217

1,827

1,623

185

5,852

1981-82

169/172

2,238

1,793

1,596

162

5,789

1980-81

168/171

2,144

1,684

1,531

146

5,506

1979-80

166/169

2,002

1,647

1,438

170

5,257

1978-79

164/167

2,021

1,565

1,572

192

5,350

1977-78

160/163

1,945

1,648

1,508

203

5,304

1976-77

160/163

2,128

1,654

1,488

233

5,303

1975-76

160/163

2,045

1,511

1,452

119

5,127

1974-75

154/157

1,934

1,587

1,329

145

4,995

1973-74

147/151

2,066

1,443

1,207

101

4,817

1972-73

144/149

1,919

18 Comments

Wednesday, March 15, 2006

Irish Jews can now wear chainmail and leather armor:

Thanks to an astute reader on a previous post, who pointed out that Ireland has repealed its law, enacted in 1181, which forbade Jews from possessing armor.

The Irish law was almost certainly based on the Assize of Arms, which was promulgated by England's King Henry II in 1181. At the time, England claimed sovereignty over Ireland, so presumably the Assize remained part of Irish laws, even after Irish independence was recognized in 1921.

Other sections of the Assize of Arms required freemen to possess weapons and armor, with the particular implements depending on the subject's socioeconomic rank. The Assize was one of many examples of the English policy of relying on a widely-armed populace for national defense.

The Jewish section of the Assize stated:

7. Item, no Jew shall keep in his possession a shirt of mail or a hauberk (an armored shirt made of mail or leather), but he shall sell it or give it away or alienate it in some other way, so that it shall remain in the king's service.
Read narrowly, the Assize still allowed Jews to possess plate armor for their chests (although such armor, invented during the Roman Empire, had temporarily fallen out of use when the Assize was written), and to possess any form of armor for their arms, legs, and head, as well as to possess shields and any type of weapon.

For a burgess (citizen of a borough; similar to bourgeois), the Assize also specified the maximum amount of arms and armor which could be possessed.

Shari'a law forbids dhimmis (Jews, Christians, and sometimes Hindus) from exercising a wide variety of civil rights, including repairing the outside of religious buildings, possessing arms, and engaging in self-defense against Muslim attackers. (See Bat Yeor's fine books for details.) Restrictions on Jewish possession of arms were common in many European Christian countries as well, and of course were also a characteristic of National Socialist law.

Some questions for commenters: do any states currently have specific laws placing special restrictions on weapons possession by Jews? Or on adherents of other religions? Is the Assize of Arms still part of the positive law of the United Kingdom, albeit an unenforced law?

And, BTW, thank you to the commenters on my information-seeking posts from the past couple weeks; you have helped advance public knowledge of various subjects, corrected errors, and demonstrated the enormous intellectual firepower of the VC's readership.

31 Comments

Balkin on Solomon:

Jack Balkin has an illuminating post on the Solomon Amendment decision, Rumsfeld v. FAIR.

Balkin explains why he was a "reluctant" supporter of the litigation against the Solomon Amendment:

...I believed that, if successful, these lawsuits might cause problems for other areas of antidiscrimination law, in particular, in the area of Title VI and Title IX law. The reason is that Title VI and Title IX impose antidiscrimination obligations on schools that receive federal funds. If the FAIR and Yale plaintiffs had first amendment rights to be excused from the Solomon Amendment, racist and sexist institutions might claim that they were entitled to be excused from Title VI and Title IX obligations. There are ways to distinguish the two situations, but it requires some fairly fancy footwork and it might cause even more problems down the road. Therefore, when I joined the Yale suit as a platinff, my preference was for a much narrower theory of the case, one that would pose no danger of undermining federal antidiscrimination laws.

I think this helps explain why FAIR lost, and lost so badly, in the Supreme Court. There was simply no constituency on the Court, and precious little constituency off the Court, for the sorts of broad speech and associational rights being pressed by the litigants in the context in which they pressed it. Aside from the interesting doctrinal issues raised, neither conservatives nor liberals liked the claims. Conservatives defer to the perceived needs of the military and to Congress's "judgment" about those needs, even though that judgment was largely a fiction in this case. (There was no evidence that the military needed access to law school buildings in order to recruit a sufficient number or quality of law students to provide legal services. Even the Defense Department initially opposed the Solomon Amendment as unnecessary and counterproductive.)

Liberals were never enthusiastic about the broad associational rights announced in Boy Scouts v. Dale, which was decided by the narrowest margin (5-4), because they worried about its effects on federal and state antidiscrimination laws. Balkin, correctly in my view, reads Chief Justice Roberts' opinion to confine the associational freedom protected in Dale largely to membership issues. But whereas Balkin celebrates that limitation of associational freedom, I think it is unduly narrow, both as a matter of the Court's associational freedom precedents and as a matter of principle.

In short, for conservatives, Rumsfeld v. FAIR was a chance to reassert Congress's traditional power over national defense; for liberals, the case was a chance to narrow the reach of Dale and implicitly to reassert government's power to enforce antidiscrimination regulations. If neither conservatives nor liberals support your case, you have no case.

Also worth reading in Balkin's post is this insight regarding the Court's suggestion that law schools are now perfectly free to post notices, etc., announcing that military recruiters are not welcome:

If a school (and its faculty) were repeatedly to send the message that its black students were not welcome, even though the school did nothing else to prevent the students from attending the school, I have little doubt that the school would have violated Title VI of the 1964 Civil Rights Act. Similarly, if a restaurant had signs at its entrance saying "blacks go home" and "we resent serving blacks" and placed those signs deliberately in order to make blacks feel unwelcome, but did not refuse service to those blacks who came inside, the owners of the restaurant would probably be in violation of Title II. In other antidiscrimination laws, equal access isn't simply a requirement of no formal limits on physical access. Equal access usually means that you aren't allowed to send signals that the group is disfavored and unwelcome so as to discourage the group from entering and using the facility.

As a matter of statutory construction, the distinction between the Solomon Amendment and Titles II, VI, and VII may be that the former is solely an "equal access" requirement (e.g. "you must simply let us in, if you let in others") whereas the latter statutes are broader, generalized "equal treatment" commands (e.g., "you must not simply let us in, but treat us with the same dignity and respect as you give others"). But Balkin's argument does suggest that courts may be put in a bind in a future case where a law school pushes the envelope in its efforts to make military recruiters unwelcome. At some point, presumably, a federal court might decide that "unwelcome mats" for the military effectively deny its recruiters equal access.

A related issue Balkin touches on: The Court's opinion suggests that the law schools' freedom to protest on-campus military recruitment (e.g., through "unwelcome" signs and forums) is a matter of legislative grace, not necessarily constitutional law. A future Congress might decide, in response to pesky academics, to adopt a true anti-discrimination requirement for military recruitment, one that mandates not simply equal "access" but substantive equality of treatment. Would the Court hold that these protest rights are protected by the First Amendment? In that event, the Court would have to explain government's power to prohibit other associations from doing the same in, say, Title VII. Or would the Court back off and say that expressive associations, like businesses, may be required not simply to admit those they disdain, but to keep silent about their objections? In that event, the damage done to First Amendment values by this litigation will have been magnified.

UPDATE: Marty Lederman has an interesting reaction to Balkin's post and to the Solomon Amendment decision. Professor Lederman makes the very useful point that (as now construed by the Court) there's a real sense in which the Solomon Amendment requires preferred, not equal, treatment of military recruiters. They, and they alone, are exempt from law schools' general requirement that prospective employers not discriminate against gay law students.

I have to say, however, that I found the statutory argument -- that excluding military recruiters on grounds of violating a generally applicable antidiscrimination policy would comply with the Solomon Amendment -- a bit strained. It seems to me that Congress's requirement of access for military recruiters equal to that given other employers, fairly read in context and in light of its obvious purpose, was really a requirement of "compelled access" for military recruiters if other recruiters were allowed on campus. The statutory issue isn't without doubt, and is more complicated than I'm presenting it here, but on this point I think the Court probably got it right.

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Monday Panel Discussion at Georgetown Law on New ABA "Diversity" Standard:

THE FEDERALIST SOCIETY’S CIVIL RIGHTS PRACTICE GROUP & GEORGETOWN STUDENT CHAPTER PRESENT A PANEL DISCUSSION ON: Mandated Racial Admissions in Hiring at Law Schools? An Examination of the Newly Proposed ABA Standard

At its midyear meeting, the American Bar Association proposed a new standard that would purportedly require law schools to consider race and ethnicity in its admissions and faculty hiring practices. The standard further states that compliance with conflicting law will not excuse a law school from complying with the ABA standard. The standard, not yet formally adopted by the ABA, is scheduled to be voted on by the ABA House of Delegates at its annual meeting in August. The proposed ABA standard has particular significance because the ABA is recognized by the U.S. Department of Education as the accrediting entity for law schools. Our panel of experts will discuss the pros and cons of the proposed ABA standard.

Participants to Date:

Professor David Bernstein, George Mason University School of Law Mr. Roger Clegg, Center for Equal Opportunity Professor Peter Edelman, Georgetown Law Center Mr. James Freeman, The Advancement Project. Professor Tom Morgan, George Washington University Law School (moderator)

Monday, March 20, 2006 12:00 p.m. – 2:00 p.m. (lunch will be provided) Georgetown Law Center Hart Auditorium Cost: FREE


[Puzzleblogger Kevan Choset, March 15, 2006 at 11:16am] Trackbacks
The West Wing & Math:

This dialogue is from the West Wing episode, "Evidence of Things Not Seen."

C.J. There's a spot on the earth where the temperature is exactly the same as it would be if you drilled through the earth to the other side.

WILL No, there isn't. How about six dollars if you do it with a face card?

C.J. Yes, there is, and it's called the antipode. And if that's true, then why can't it be that you could stand an egg on end at the equinox?

Now, the problem. Prove that at any given moment, what C.J. is saying is true: there are two points on the earth exactly opposite each other which have the exact same temperature. You can assume that temperature is continuous (i.e., there's no spot on the earth where the temperature just "jumps" from 0 degrees at one spot to 100 degrees at a spot infinitesimally close to it).

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House Resolution Overwhelmingly Supports the Solomon Amendment:

TaxProf has the details.


Freedom of Speech vs. People's Supposed Right To Hide Their Past:

In 1979 and 1980, Barry Treash -- then a vice-president at Beneficial Standard Life Insurance Company -- was involved in a kickback scheme that essentially defrauded his employer out of hundreds of thousands of dollars. In 1984, Treash was convicted of mail fraud and income tax evasion stemming from this scheme.

Would you do business today with someone who had been convicted of fraud twenty years before? I might; twenty years is a long time. But I’d be extra cautious, and I’d consider it valuable to know about the man’s past history.

In any case, Barry Treash is indeed in business now; he runs Readylink Healthcare, “a staffing company linking nurses to hospitals.” Treash got into a tiff with lawyer David Lynch (details here), and Lynch put up a note on his Web site soliciting clients who might be interested in suing Readylink. After further legal skirmishing, Lynch added extra pages that revealed Treash’s history.

So Treash turns around and sues Lynch for, among other things, invasion of privacy, specifically the disclosure of privacy facts. Lynch, the legal theory goes, is legally barred from publishing even truthful accounts of Treash’s past criminal convictions.

That, I think, would make for a very bad legal rule. Some people may take a forgive-and-forget attitude towards past crimes. But others may not. We should be entitled to decide for ourselves how much weight to give to such information, without the legal system forbidding others from speaking to us about these matters.

Unfortunately, for several decades, California courts did indeed take the view that accurately discussing people's crimes from a decade or more ago could lead to legal liability. Such speech, a discussion in a 1971 California Supreme Court said, serves no "public purpose" and is not "of legitimate public interest"; there is no "reason whatsoever" for it, when (in the court's view) the plaintiff has been "rehabilitated" and has "paid his debt to society."

"[W]e, as right-thinking members of society" -- yes, the court did say "right-thinking," and not, I think, ironically -- "should permit him to continue in the path of rectitude rather than throw him back into a life of shame or crime" by revealing his past. "Ideally, [the convicted criminal's] neighbors should recognize his present worth and forget his past life of shame. But men are not so divine as to forgive the past trespasses of others, and plaintiff therefore endeavored to reveal as little as possible of his past life." And to assist plaintiffs in what the court apparently thought was a worthy effort at concealment, the law may bar people from saying things that would interfere with the convicted criminals' plans -- even when the speakers and the listeners take a somewhat different view of what's "right-thinking" than the court does.

Fortunately, in 2004, the California Supreme Court realized that under modern First Amendment law, this view is unsound, and “a media defendant may [not] be held liable” for publishing “facts obtained from public official court records.” And, the court held, this was true regardless of whether a judge or jury decided that the facts were “newsworthy” (an unpredictable and subjective standard).

But, back to unfortunately, this still leaves open the question that the Treash v. Lynch litigation -- now called Readylink Healthcare v. Lynch -- raises: Is this right to speak applicable to all speakers, or does it indeed distinguish “media defendant[s]” from nonmedia speakers who are “motivated by malice or intent to gain commercial advantage”? The federal court of appeals for the Ninth Circuit just certified this question as a matter of state law to the California Supreme Court; if the California court concludes that California law categorically protects such nonmedia speakers, the matter will be settled; if the court concludes that such speakers may indeed be held liable for such true speech, then the Ninth Circuit will have to decide whether the First Amendment allows such liability.

I expect that the courts will ultimately rule in favor of the speakers -- and I think that’s exactly right. First Amendment principles should apply to all speakers, whether or not they are parts of the institutional media; and this is of course even more clear now that the media / nonmedia line is blurrier than ever. Newspapers can clearly write about Treash’s past. Presumably I can do the same, since it’s hard to see why I should have fewer First Amendment rights than a small-town newspaper that may have no more readers than this blog does. I take it that Lynch could do the same on a blog that Lynch runs. How can the law sensibly distinguish Lynch’s site from his blog, Lynch’s blog from my blog, or my blog from the Siskiyou Daily News (circulation 6000)?

Nor should it matter that Lynch is "motivated by malice or intent to gain commercial advantage." Newspapers and other media outlets are of course often motivated by an intent to gain commercial advantage. (Our economy generally and copyright law in particular rests on the notion that a desire to gain commercial advantage is generally good, and the law should harness it as a means of producing valuable goods and important speech, rather than condemning it.) And investigative newspaper reporters are often motivated at least in part by hostility to the bad guys they’re covering. Larry Flynt, who published the scurrilous (but constitutionally protected) attack on Jerry Falwell in Hustler Magazine v. Falwell, was likely largely motivated by malice against Falwell. Free speech protection that can be lost simply because a jury finds that you spoke out of “malice” is not much of a protection.

Should this disclosure-of-private-facts tort exist? I think the answer should generally be “no,” for reasons I’ve discussed at much greater length here. Perhaps there ought to be a narrow and well-defined exception for speech that reveals private facts and yet genuinely has virtually no plausible value other than tittilation -- I have in mind, for instance, a tort that would be limited to the unauthorized publication of nude photographs or sex videos (a matter that has been in the news in recent years). I’m not enthusiastic about even such a clear and narrow exception, because of the risk that the narrow exception would be used as a justification for much broader ones; but at least if the exception is kept clear and narrow, relatively little of value would be lost.

But whatever you think about the disclosure tort in other contexts, here we’re dealing with our ability to speak about public events -- a trial and a conviction -- which may still be quite relevant to people’s behavior today. Our freedom to speak about such matters shouldn’t hinge on ad hoc decisions by judges and juries about what’s “newsworthy,” or for that matter who’s a member of the “media” and who isn’t.

[TECHNICAL NOTE FOR LAW GEEKS: Howard Bashman (How Appealing) asks a good question about the terms of the Ninth Circuit's certification to the California Supreme Court; I'd guess that the Ninth Circuit meant to ask the California Supreme Court about the nature of the California disclosure tort, which the California Supreme Court has been developing (albeit in light of the First Amendment), but I agree that literally the questions also ask the California Supreme Court's view on a purely federal constitutional issue, which is an odd thing for a federal court to do; see also this follow-up from a How Appealing reader.]

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Book Recommendation:

Just finished reading John Scalzi's The Ghost Brigades, and liked it very much. It's a sequel to his Old Man's War, which I also very much liked. It's fresh, thoughtful, and readable; highly recommended.

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Tuesday, March 14, 2006

Marc Lepine bleg:

The perpetrator of the infamous Dec. 6, 1989 massacre at the Ecole Polytechnique in Montreal was born on October 26, 1964. Does anybody know where he was born?

Lepine's father was Rachid Liass Gharbi--an alcoholic, wife-beating, child abusing Algerian Muslim who had immigrated to Canada. He often said that women’s only purpose was to serve men. Lepine's mother Monique was a French-Canadian former nun. Does anyone know more about the backgrounds of either Rachid or Monique?

Please supply answers in the Comments. Thanks.

35 Comments

Surrender of Jericho Terrorists:

"Our prison is surrounded on all sides by Israelis. They are asking us over loudspeaker to come out," Ahed Abu Ghoulmi, one of the targeted prisoners. "We will not come out under any circumstances."

"We are not going to surrender. We are going to face our destiny with courage," Sa'adat later told the Arab satellite channel Al-Jazeera.

Several hours later, they all surrendered. Guess martyrdom is just for the patsies, not for "leaders" who can hope to eventually be released in a prisoner exchange.

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Purim:

Today is the second day at of the Jewish festival of Purim. Historians debate whether the events described in the book of Esther, on which the Purim festival is based are historically accurate, but in any case, the story is interesting and teaches some useful lessons.

According to the Book of Esther, during the reign of King Ahasuerus in Babylon, the king decided to pick his wife by holding a beauty contest. The winner and new queen was a beautiful young woman named Esther. She was Jewish, but the king did not know it.

A wicked counselor named Haman convinced the king to order the destruction of all the Jews. Messengers were dispatched throughout the kingdom announcing the extermination of the Jews to take place several months later. Haman had picked the most auspicious date by casting lots.

Esther’s wise uncle Mordecai urged her to petition the king, but Esther was afraid that she too might be killed. Mordecai replied that Esther, despite her privileged position, would not escape what would befall the rest of the Jews. Moreover, it might be that Esther had been elevated to the queenship for this very moment.

So Esther invited the king and Haman to a banquet, a banquet which Haman thought was in his honor. At the banquet, Queen Esther told the king how Haman was plotting against Mordecai the Jew, who had earlier saved the king from an assassination attempt. She then accused Haman to trying to kill her, for, Esther confessed, she was a Jew.

The enraged king ordered Haman to be hanged—-ironically, on the gallows that Haman had been building for Mordecai.

According to Babylonian law, a king’s decree could not be rescinded. So the king sent forth throughout Babylon a second decree, allowing the Jews “in every city to gather themselves together, and to stand for their life, to destroy, to slay, and to cause to perish, all the power of the people and the province that would attack them.” The language precisely matched the previous decree which had ordered the destruction of the Jews.

On the day that the destruction of the Jews was scheduled to begin, the people who hated the Jews attacked. The Jews fought back, assisted by provincial governments which sought Mordecai’s favor. “Thus the Jews smote all their enemies with the stroke of the sword, and slaughter, and destruction, and did what they would unto those that hated them.”

Forever after, Jews have celebrated the Feast of Purim (“lots”). It is a joyous springtime festival, full of children’s games.

Esther is the only book of the Bible in which God is not mentioned. Yet it is easy enough to see who is doing God’s work: wise Mordecai, brave Esther, and the fighting Jews throughout Babylon.

On Purim, Jews are supposed to drink until they can no longer distinguish "Blessed be Mordecai" from "Cursed be Haman." Some people say that this means a person should drink until he can no longer do the mathematical calculations with the Hebrew letters showing that Mordecai and Haman each add up to the same value, namely 520. (All Hebrew letters have a numeric value.)

Other people say that because the blessing of Mordecai and the cursing of Haman both manifested God's goodness, a person should drink until he realizes the fundamental similarity of God's superficially diverse good works.

Whether or not there was a historical Queen Esther, history shows that Esther and Haman are archtypes who will always be with us. When the Nazi war criminal Julius Streicher was being dragged to the gallows in his underwear, he screamed “Purim Feast, 1946.” (Abram L. Sachar, The Redemption of the Unwanted: From the Liberation of the Death Camps to the Founding of Israel (N.Y. St. Martin’s Pr., 1983), p. 123.) Streicher was publisher of the ultra-anti-Semitic weekly newspaper Der Stuermer. He was convicted of crimes against humanity for inciting the murder of Jews. Even with the context of Nazi politics, Streicher was an extremist in his early, frequent, and insistent demands for Jewish extermination. As an inciter of genocide, Streicher did have much in common with Haman.

Many Jewish families and communities celebrate an additional Purim based on their own miraculous deliverances. For example, according to the 1991 book Purim: Its Observance and Significance (Mesorah Pubs.), the Jews of Algiers celebrate an additional Purim to commemorate the Turkish defeat of a 1775 Spanish invasion (retaliation for Algerian raids on the Spanish coast), which saved the Jewish quarter from almost certain destruction by the Spaniards.

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What do Conservative Judaism and the Federalist Society Have in Common?

Federalist Society mission statement: "[i]t is emphatically the province and duty of the judiciary to say what the law is, not what it should be."

Rabbi Kenneth Cohen, on Conservative Judaism and Jewish law: "the role of the rabbi is not to decide what the law should be, but rather what the law is."

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The President's Secret IMs: This was the first one of the series by Danielle Crittenden I had seen. ;-)

Comments should only be in IM mode.
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An "Ideological Vacancy Chain" on the Volokh Conspiracy?: Kieran Healy on Crooked Timber comments here.
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Big Love "Threat or Menace?" Comment Board: With the success of The Sopranos comments board below, I thought I would solicit reader comments on Big Love, the new HBO series on polygamy. What do you think?

In response to some of the comments on The Sopranos, I wanted to add that, for me, The Wire is a far more realistic depiction of crime and law enforcement. I view The Sopranos as more surrealist than realistic in a highly (for me) aesthetically pleasing way. Deadwood, in contrast, I view as Shakespearean in its investment in dialog, which includes the inability to understand some of it without a quick backup on the Tivo™ to hear a line again. It is even better in second viewing when you do not have to concern yourself with the plot and can focus on the words. Then there is Entourage. . . an awesome show. These are my four favorite series.

Do I sound like I watch too much TV? After all, there is also 24, the amazing House, Rome, and the far inferior but still entertaining, Prison Break, to keep up with. Well, perhaps. But the Tivo™ allows me to be very selective. [In response to a comment, I have been and remain a genuine Tivo™ owner since the product was first introduced.] Choose the shows to which I want to commit and keep up with them late in the evening when I am too drained to do anything else. And the other nice thing is that there are new episodes of different series throughout the year, not just from Fall to Spring, so there are at any one time probably no more 3-4 shows to watch per week.

This may well be the new Golden Age of television, with the medium finally being used to accomplish story telling that cannot be done in the traditional "series" format or the traditional 2-hour movie format.

Related Posts (on one page):

  1. Big Love "Threat or Menace?" Comment Board:
  2. Sopranos Comment Board
62 Comments

Please Re-Download "Judicial Power and Civil Rights Reconsidered":

My colleague Ilya Somin and I last year published a review essay in the Yale Law Journal entitled Judicial Power and Civil Rights Reconsidered, a review of Michael Klarman's From Jim Crow to Civil Rights. When first posted on SSRN, the review received over 100 downloads. However, the YLJ objected to us posting the piece on SSRN, and we had to take it down. This resulted in the download counter being reset to zero. The piece has now been reposted, but only has four lonely, embarassing hits. This is hurting my SSRN ranking! I'd probably be around number 620 instead of 633 in alltime downloads but for this snafu. So please do me a favor, and if you downloaded the paper previously, download it again, so the SSRN counter will know you did it. Every vote counts! Click below for important instructions!

(show)

UPDATE: While I was joking in honor of Purim about needing the downloads (see text hidden under "show"), it turns out SSRN has addressed the underlying problem. Prof. Bernard Black writes:

If you remove a paper from SSRN and later repost it, you can recover the lost downloads. Just add a comment when you repost giving the abstract number for the old post, and ask that the old downloads be carried over to the new post. This is also useful when you want to combine two versions of one article, without losing downloads.

3 Comments

Monday, March 13, 2006

Grotius bleg:

The great Dutch philosopher Grotius, one of the founders of modern international law, wrote that foreign humanitarian intervention was lawful to "to stop the maltreatment by a state of its own nationals when that conduct is so brutal and large-scale as to shock the conscience of the community of nations." I found the quote in a secondary source (Commentary magazine). Does anyone know the original cite? The quote does not appear in the law review database in Westlaw, nor in the Allcases database.

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Phi Beta Cons: The National Review has started a new blog on conservatism and higher education, Phi Beta Cons. Thanks to Instapundit for the link.
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Why Did the Law Professors Lose So Badly in the Solomon Amendment Case?:

N.Y. Times:

Others offered their own theories.

There is the reactionary Supreme Court hypothesis. William N. Eskridge Jr., a Yale law professor who helped shape the losing side's arguments, said the defeat demonstrates the "ridiculously obvious" point that the Supreme Court is "a justificatory instrument" for military policy.

Then there is the clueless law professor theory.

Peter H. Schuck, a Yale law professor who thought the law schools' legal position was misguided, said that many professors were so indignant about the military's treatment of gay men and women and so scornful of the military itself that their judgment became clouded.

"There is often a feeling that if something is morally wrong it must be legally wrong and that clever arguments can bring those two things into alignment," Professor Schuck said.

The elite law schools have for decades been overwhelmingly liberal, Professor Schuck said, and that may have blinded professors to problems with their arguments. Only one law school brief, organized by members of the faculty of George Mason University School of Law, supported the military.

"If you put together a Vietnam legacy, a gay rights ideology, the idea that courts can solve all problems and the legal academy's echo chamber, you get this result," said Joseph Zengerle, an adjunct professor at George Mason who helped write the brief.

The most bizarre aspect of the whole litigation, in my opinion, was that the Third Circuit opinion ruling for the law professors failed to discuss or even cite the case most obviously on point, Grove City College v. Bell, which held in rather conclusory language that Congress has rather wide authority to encourage universities via threats of withholding funding to follow federal policy, even if direct legislation on such issues would violate the schools' First Amendment rights. It was as if the Third Circuit majority decided that conditional federal funding was okay when it operated in the interest of "civil rights," as in Grove City, but not when it was not in the interest of "civil rights" as in the FAIR litigation. In fact, however, as I've noted before, the Solomon Amendment was modeled directly after Title IX, the antidiscrimination provision at issue in Grove City. Instead of being forced to adhere to rules designed to ban discrimination against women, Solomon required law schools to adhere to rules designed to ban discrimination against military recruiters. No amount outrage over what is seen as Congress' moral obtuseness in analogizing discrimination against women to discrimination against military recruiters could obscure the fact that if the federal government could threaten Grove City College's funding for refusing to follow federal antidiscrimination dictates, it could do the same to Yale and Harvard.

One bright spot of the FAIR opinion is that the Court seemed to suggest that it was willing to consider in a future case how broadly Grove City should be interpreted before the "unconstitutional conditions" doctrine kicks in. As someone who is very much opposed to the federal government exercising control over university policy via its spending power, that is a potentially welcome development indeed.

UPDATE: A VC commenter writes below:

Further, you could argue that there is NO discrimination against military recruiters; they are just held to the same standards as all recruiters. Private recruiters who refuse to higher gays and lesbians are ALSO excluded from on-campus recruitment. So, where is the "discrimination?" Now this argument, unlike the one in the previous paragraph, is a matter of rhetoric. rather than objective fact. Here I am emphasizing the differences between the two cases and minimizing the similarities.

I've heard this argument many times before, but, sorry,it doesn't really help distinguish FAIR from Grove City. Grove City was not even alleged to have ever engaged in sex discrimination. Rather, the federal government threatened Grove City because it refused to collect statistics that the government wanted it to collect. Surely, if the government could take away Grove City's funding for engaging in behavior which wasn't even alleged to be discriminatory, the government could take away Yale's money for engaging in behavior that the government has defined as discriminatory. Also, as C.J. Roberts emphasized, the reason law schools had for discriminating against military recruiters, that the military itself discriminates against homosexuals, doesn't make the law schools' behavior any less discriminatory, but, at best, means that the law school thought it's reasons for discriminating were more important than the government's reasons for prohibiting discrimination. Whether that point of view is correct or not is, alas, legally irrelevant, as law schools cannot simply choose to obey only the laws they agree with.

63 Comments

Good Luck to Orin:

Let me also put in a plug for Orin's new blog, which already has a very interesting post on the constitutionality of "good driver" stops. Excellent stuff, as Orin's work always is.

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Becker on The (Fatally Weakened?) Case for Open Immigration:

Gary Becker: "Open immigration to America worked well during the 19th century because the government did very little for immigrants and their families. How immigrants voted after becoming citizens also mattered little because government decisions were not so important. With the growth of government during the past half century, neither of these conditions continues to hold, so the case for open immigration is fatally weakened." Hat tip: Mike Rappaport at the Right Coast. I would throw in the fact that the American establishment has a much weaker commitment to assimilation these days, that modern communcations allow immigrants to retain much stronger ties to their homelands, and that the courts require the government to allow dual citizenship. Also, if we're serious about preventing terrorist attacks in the U.S., wouldn't it make sense to ban immigration from the countries where terrorists are most likely to come from (e.g., Saudi Arabaia, home of 15 of the 19 9/11 hijackers?) Though not a panacea, it a lot cheaper both in terms of monetary costs and civil liberties than additional dubious homeland security initiatives. I'm generally pro-immigration and pro-immigrant, but I think there needs to be an intelligent, informed debate on American immigration policy, with the goal of replacing the haphazard mess we have now.

80 Comments

Curse you Orin Kerr!! Oh, I meant to write "Good Luck Orin," on your new venture. Thanks for putting the pressure on the rest of us to make up for the loss of your impressive legal analysis on this blog.

(I won't activate comments here, so readers can continue to post about Orin's semi-departure from the VC in the comment section of his previous post.)

Sopranos Comment Board I consider the Sopranos to be more like a movie series (like James Bond) than a television series. At least that's the way I can rationalize the 2 year hiatus since it last aired. I approached this season with much anticipation, rewatching the 2004 season over the past week or so, and the last episode immediately before the new one. I thought the continuity was impressive. Unlike previous season premiers which seem to pale by comparison with the previous season's finale, this premier seemed to be a genuine continuation, albeit with some new set ups and a big surprise. (If you Tivo™ the show, do not read the comments..)

What did you think about last night's premier of the Sopranos? In the spirit of Orin Kerr, post your comments here. (Please, no posts about Big Love. I won't be watching it until tonight.) I look forward to reading your take. Here are some possible issues that could be discussed: Did the premier episode thrill or disappoint? What do you think makes the Sopranos a cut above other television shows? How would you rate it as compared with Deadwood, a show I find simply amazing in its dialog? How do you think the series format on HBO compares with film as a medium for story telling? Post away!

Related Posts (on one page):

  1. Big Love "Threat or Menace?" Comment Board:
  2. Sopranos Comment Board
32 Comments

A New Venture -- OrinKerr.com: I've decided to experiment with a new blog. Starting today, I am splitting my time between the Volokh Conspiracy and a new solo blog, OrinKerr.com. I imagine the new blog as a kind of "lawyer’s lawyer" blog; all of the posts will be about the law, with an emphasis on current legal debates and a broader perspective on the legal academy and the legal profession. I'll continue to blog here at the VC about general topics, but my legal posts normally will appear only at the solo blog.

  In case you're wondering, I'm trying this experiment for two reasons. First, I find myself increasingly drawn to more legal and less political blogging topics, and I'm not sure I like the juxtaposition of the two that is common at the VC. I gather lots of readers like the combination — the VC's sitemeter stats are proof enough — but for a range of reasons I'm interested in creating a sharper divide between the two. The new blog will have a much smaller readership than the VC, but I'm not sure that's a bad thing.

  Second, starting a new blog will let me try a new approach to comments. At the new blog, most comments will be by invitation only. I explain the details in my first post, but the idea is to promote comments by a specific group of legal experts and commenters rather the general public. This isn't very populist of me, I realize, but I think it fits the focus of the new blog: Comments can add tremendous value to a blog post, but legal experts and informed commenters tend to add the most value to blog posts about the law. Of course, my posts here at the VC will continue to be open to all.

  Anyway, the plan is to try the new blog for a month or two and see if I enjoy posting there. If it doesn't work out, I'll fold up shop and post exclusively at the VC.

  Comments here are enabled (naturally, please keep it civil).

Related Posts (on one page):

  1. Just A Reminder:
  2. Good Luck to Orin:
  3. Curse you Orin Kerr!!
  4. A New Venture -- OrinKerr.com:
32 Comments

Sunday, March 12, 2006

Cat Fight: I don't know if we've ever done cat-blogging here at the VC, but I laugh every time I watch this 10-second video.
8 Comments

President of Bar Association in Pakistan, Plus Major Pakistani Party, Supports Murder of Danish Cartoonists:

Agora reports, translating a Danish article:

The men behind the Danish Muhammed cartoons are today faced with another bounty on their heads from Pakistan.

It is the Bar Association who are calling for the murder of the 12 Jyllands-Posten cartoonists.

"I offer the reward of 10 Million Rupees (1 Million DKK, 120000US$) for anyone who kills one of the Cartoonists," says Syes Athar Bukhari, the President of the Bar Association.

Bukhari is supported by the Jamaat-i-Islami party, the second-largest part of the Pakistani coalition government....

If any readers know Danish and can verify (or criticize) the translation, or know Pakistan and can give some perspective on the Bar Association, the party, or Bukhari, please let me know.

22 Comments

Open Thread: What's on your mind? Comment away.
86 Comments

Are Gitmo's Days Numbered?: The Independent (UK) reports:
  The US has asked the British government for advice in preparation for closing down the notorious prison camp at Guantanamo Bay by sending hundreds of alleged al-Qa'ida fighters back to their home countries, The Independent on Sunday can reveal. * * *
  Legal sources in the US have confirmed that senior Bush officials want to send most of these men, including senior aides to Osama bin Laden and at least five British residents, to be imprisoned in their home countries - a process that could start within weeks.
20 Comments