Miers responded to Jordan's comment with a joke: "I think I needed you out in the blog world."
Thanks to Howard for the link.
Saturday, April 29, 2006
Interesting Comment on Blogs and Supreme Court Nominations: The Dallas Morning News has a story today on a speech given by White House Counsel Harriet Miers to the Dallas Bar Association. Former bar association president Darrell Jordan introduced Miers, and called the criticism of her Supreme Court nomination "vitriolic," "unfair," and "shameful."
Miers responded to Jordan's comment with a joke: "I think I needed you out in the blog world."
Thanks to Howard for the link.
Friday, April 28, 2006
Why so few gay marriages?:
Assuming the new report I discussed earlier today is correct that relatively few gay couples are getting married where it’s allowed, why is that the case?
The report itself suggests a couple of possible directions marriage rates among gay couples might go in the future:
Of these two directions - - an increasing demand as marriage culture takes hold in gay communities or a continued low (or falling) demand as the excitement of having a new right subsides - - which seems more likely?
The answer, I think, depends on why we think marriage rates among gays might initially be low. Every gay person on this planet right now has lived almost her whole life without the prospect of ever marrying the person she loves. Most gay people in most parts of the world probably still think the prospects for this are very dim where they live, despite what’s happened in Europe, Canada, and Massachusetts. Relationships have been started, plans have been made, worldviews and political ideologies have been formed, based on the absence of marriage as an option. Suddenly, for a few people in a few isolated jurisdictions, marriage is now a possibility for the first time in their lives. While some gay couples can be expected to jump the broom right away, it's not surprising that many others will need more time to assess this new possibility.
This is so for several reasons. First, the idea of marriage is still novel in gay culture and among gay individuals. As the report suggests, "novelty" can produce excitement – but it can also produce fear, specifically fear of the unknown. Britney Spears aside, I doubt many people get married for the novelty of it. Marriage is a huge legal and social commitment. There's less experience with marriage in gay communities, and thus more uncertainty about what it means in practical terms. People who have never even imagined it would be a prospect in their lives will be understandably hesitant.
Second, without the social encouragement and support that marriage provides for relationship formation, there are probably relatively fewer long-term and stable gay couples to begin with, and thus relatively fewer couples who would immediately demand marriages. Those couples secure enough and invested enough in their relationships can start taking advantage of the option right away, if that’s what they want, and they're likely to be the first couples to get married. But for other couples, the availability of marriage means staying the course or embarking on a new one. As new relationships are formed under a regime of marriage, these couples will eventually reach the point where someone pops the question, “Will you marry me?” All of this suggests there will be an adjustment period of some duration while more marriage-inclined couples form and while marriage becomes a comfortable and normatively appealing option to them.
Third, reinforcing the fear of the unknown is the fact that many gay people have actually constructed an oppositional identity for themselves partly based on their exclusion from marriage. Excluded from marriage, they have made a virtue of necessity: "You won't let us marry? We don't want to get married anyway." This oppositional identity takes many forms in the writings of queer theorists and in the things even ordinary gay people can be heard to say when the subject of marriage arises. One hears expressions of this oppositional identity like, "We don't need marriage with all its patriarchal and heterosexist trappings." Or: "I don't want to mimic straight people." Or: "Marriage is such a mess, with 50% divorce rates, why would we want to join it?" Or: "Just give us the benefits of marriage and you can keep the word." There's a stubborn pride, born of necessity, in being on the outside of a group that won't let you in. Some people will retain this oppositional identity no matter how much time passes. But for others, primarily those younger people whose identities are formed in an environment where marriage is an option, oppositional identity of this sort should fade. Mainstreaming effects like this are what many queer theorists fear about the coming of gay marriage.
I doubt that marriage rates among gays will ever equal marriage rates among heterosexuals, primarily because gay couples will be less likely to raise children. Even after marriage culture settles in, straight couples will be most likely to get married, followed by lesbian couples (who are more likely to raise children than gay males), followed by gay-male couples. But a disparity in marriage rates among heterosexual and homosexual couples is not an argument in itself against recognizing same-sex marriages.
Whether there’s a rising or continued low demand for gay marriage over time does not necessarily answer the question whether same-sex marriages should be recognized. A rising demand for gay marriages that are causing harm to marriage would be terrible. A low demand for gay marriages that are at least helping the few couples who want it, without hurting marriage itself, would be fine.
Whatever our views of gay marriage, we should not be surprised to find gay couples and communities taking things slowly.
Report finds few gay marriages where it's allowed:
Maggie Gallagher's Institute for Marriage and Public Policy, which opposes gay marriage, has just issued a new report finding that few gay couples are getting married in jurisdictions where gay marriage is permitted. Here's the summary of the findings from the report:
The report derives these numbers by comparing the total number of same-sex marriages in a jurisdiction (based on government reports) to an estimate of the total number of adult homosexuals in the jurisdiction (based on survey data for the jurisdiction, if available, or a general estimate if not). The first number is precise; the second number is necessarily a rough estimate. I won't address here the accuracy of the data; I'll assume that the numbers for same-sex marriages are correct. While we could quibble over the estimates of gays in a given jurisdiction, the assumptions used seem fair. The report itself has a welcome "just the facts, ma'am" tone.
The report finds that there does not appear to have been a stampede of gay couples to the altar. It appropriately does not try to draw any grand conclusions from these findings, but the report will undoubtedly be used to make normative arguments in the debate over gay marriage.
Which way do these preliminary findings cut? On the one hand, the report gives some ammunition to opponents of gay marriage, who may argue that marriage will have little practical impact among gays. We should not "change the definition of marriage," they will argue, to benefit a tiny fraction of a tiny fraction of the population. The legal benefits of marriage will remain unavailable to gays who don't marry, and the overwhelming majority of gays aren't marrying where it's allowed.
On the other hand, even assuming that marriage rates among gays remain low, there will still be legal, social, and other practical benefits to those gay couples who do choose to marry. To them marriage will be important regardless of whether others choose not to marry. As to the harm gay-marriage opponents claim will be produced, it's even harder to see how this tiny fraction of a tiny fraction of the population will cause any practical harm to existing marriages or to marriage as an institution. It's true that a low rate of marriage among gays would mean fewer benefits from recognizing same-sex marriages, but it would also mean correspondingly fewer potential harms caused by the existence of such marriages (such as the modeling of bad marital behavior by nonmonogamous gay male couples).
Of course, if you believe that a "change in the definition of marriage" to include same-sex couples is itself harmful to marriage then marriage will be worse off even if no gay couple actually gets married — but then you didn't need this report to make your argument. To me, this definitional fear has always seemed far too abstract to count for much.
There's an interesting correlation in the report not noted by the authors. Gay couples are most likely to get married in places where marriage culture itself is still relatively strong. Thus, the highest rates of marriage among gays have occurred in the United States (Massacusetts) and Canada, with much lower rates in Europe. It's just a correlation, but it's hard to believe that gay couples are unaffected by the respect accorded marriage generally in the societies in which they live. Marriage will be less attractive as an option to them if, as in Europe, it's already atrophied to the point that even opposite-sex couples are widely choosing unmarried cohabitation. That point was already reached in much of Europe before gay marriage became a reality in the Netherlands, Belgium, and Spain. For gay marriage to have a strong influence in the lives of gay citizens, marriage itself must have a strong influence in the lives of all citizens. For those of us who support gay marriage, this correlation suggests that we should also be concerned generally about preserving marriage.
More in another post to come on why marriage rates among gays may be especially low, at least initially.
Harvard Bloggership Conference.--
Larry Solum, who is one of the most insightful commentators on papers I've ever met, is liveblogging on the Legal Theory Blog from the Harvard Bloggership Conference. He even posted several times from the podium while others were presenting.
Ann Althouse, another of my favorite bloggers, is also live-blogging the conference.
The link for the live broadcast is here.
UPDATE: In Larry Solum's online comment on my comment on the panel, Solum wrote:
Just to clarify, what I perhaps imperfectly remember saying about SSRN was that [in law] it started with mostly law & economics and covers that field well, and it then expanded into legal theory. Beyond those two fields, its coverage is much less extensive. Most legal scholarship is not on SSRN.
And on the number of downloads of my Yale review of Michael Bellesiles's Arming America ("Fall from Grace: Arming America and the Bellesiles Scandal"), I pointed out that the number of downloads from Glenn Reynolds' Instapundit site exceeded 130,000, with over 50,000 downloads in the first week it was up on his site. That was only one of the three sites where the review was up. If you are curious, my Yale review can now be downloaded from SSRN at the bottom of this SSRN page.
"Student Bill of Rights" Adopted at Princeton:
According to the Daily Princetonian, in a referendum this week the student body voted to adopt of the "Student Bill of Rights."
From what I can tell, there is no binding effect of the policy, it is just a statement of principle by the Princeton student body. According to the story: "USG president Alex Lenahan '07 will now sign the SBOR, 'making it the official statement of the Princeton University student body,' USG vice president Rob Biederman '08 said."
The supporters of the referendum acknowledge that the Student Bill of Rights was inspired by David Horowitz's Academic Bill of Rights, but also state that they disagree with his "tactics" (although I can't tell for sure what that means). Somewhat amusingly, one article seems to suggest that the response by the Student Assembly to the success of the referendum will be to consider whether it is too easy to place student referenda on the ballot (even though this proposal gained majority support after a highly-contested campaign).
I have previously expressed my disagreement with Horowitz's Academic Bill of Rights. Nonetheless, as I think this grassroots effort at Princeton indicates, there also seems to be a deep frustration out there that lies behind efforts such as Horowitz's and Princeton's. In particular, I think there is a widespread lack of confidence in the ability of universities to take these concerns seriously and to engage in responsible self-governance on this issue. In that light, it will be interesting to see what, if anything, will be the response of the Princeton administration to this. Unless colleges and universities start paying attention to this issue and these frustrations, I suspect that that internal efforts such as Princeton's will be imitated on other campuses and that Horowitz will continue to gain headlines (and eventually legislative support, I fear).
HT: Stephen Balch at Phi Beta Cons
Commenter EricK has posted the text of the Princeton Bill of Rights in the Comments here.
Cameras in the Court? Dan Henninger has this column today in the Wall Street Journal about his first time listening to oral argument in the Supreme Court. I know how he felt. My first time was only a few years ago when I went to listen to argument in the Oakland Cannabis Buyers Cooperative case, and had the same reaction as he did. As much as I would like to watch oral argument on C*SPAN, I have to think that this particular aspect of the Supreme Court is not broke and does not need to be fixed. People cite C*SPAN in Congress as the model (as well as televised state supreme courts), but I hardly think Congress is operating particularly well.
I am not saying that the Supreme Court does not need any reform. Most important among those I have read about is reforming its private conferences so the Justices debate more before voting. But I am content with audio of oral argument released soon afterwards. I can do without cameras in the Supreme Court. Can you? Comments are enabled.
Thursday, April 27, 2006
Atlas Shrugged Movie:
Variety reports yet another attempt to film Ayn Rand's Atlas Shrugged. Variety tags Angelina Jolie as a potential Dagney Taggart. Isn't her public persona a bit, er, altruistic for a role as Taggart? She's a bit young for the role, too. Maybe Sigourney Weaver or Sharon Stone. Meryl Streep as Lillian Reardon? Jane Fonda as Reardon's mother?
Traditionalizing pressure from gay families in S.F.:
The evidence is anecdotal so far, and very preliminary, but it appears that gay (and straight) families in San Francisco are starting to complain about the hyper-sexualized atmosphere of the Castro. Public displays of sexuality that would have gone unnoticed just a few years ago are now being contested. I've gathered some of the evidence of the trend here.
Executive constitutional interpretation:
There are plenty of examples of presidents who supported/signed legislation thinking that the legislation was both constitutional and otherwise good policy.
There are plenty of examples of presidents who opposed/vetoed legislation, thinking that the legislation was both unconstitutional and otherwise bad policy. Andrew Jackson's veto of the Second National Bank is an example of this: he said in his veto message that he believed it was unconstitutional, but he also opposed it on policy grounds.
Both of the above scenarios involve presidents whose policy views lined up with their purported constitutional views. No conflict presented itself.
But here's a challenge for bloggers and commenters everywhere: give an example of a president who opposed/vetoed legislation on the ground that he believed it to be unconstitutional, even though he otherwise supported it on policy grounds? Here the president's view of the proper meaning of the Constitution would be opposed to his view of good policy. To put it in less abstract terms: it would be as if Andrew Jackson had loved the idea of a Second National Bank, but nevertheless vetoed it because he thought it was unconstitutional.
I guess it counts if you can find examples of presidents who supported a policy but opposed specific legislation implementing it on the ground that they believed the Supreme Court would find it unconstitutional, and thus wanted the legislation redrafted to satisfy the Court. But a cleaner example would be one where a president supported a policy but — independent of his view of what the Court might think — believed the legislation implementing it would be unconstitutional.
NOTE: I'm not looking for arguments about whether the president would/could/should do this, and I'm not looking for larger theoretical arguments about the executive role in constitutional interpretation. I'm looking for specific, concrete historical examples that can be supported in the public record.
Are there any such examples?
UPDATE: Thanks to readers for a number of interesting possibilities. Most seem confined to the Nineteenth Century. The one clear Twentieth Century example, President Wilson, is a case where the basis for the president's constitutional objection is the preservation of the executive's own removal power. The disjunction between executive policy preferences and executive constitutional interpretation seems to be very rare.
Who Is Juan Non-Volokh?
Juan has informed me that he/she/it will be taking off the mask shortly, so I figured (with Juan's permission, of course) that this is a good opportunity for a bit of competitive fun. Post in the comments who you think Juan Non-Volokh is, and we'll see who got it right.
Wednesday, April 26, 2006
Some of My Best Friends Are Law Professors,
but I can't say that law professors' fleeing the country for Canada makes me worry about the future of America. Now if it were physicists or medical researchers or engineers (a nontrivial risk, incidentally, if we burden noncitizens in the wrong ways), then I'd be worried.
Related Posts (on one page):
Is U.S. News Causing a Decrease in Black Enrollment in Law Schools:
However, we learn from the same article that applications to law school increased 30% between 2001 and 2004, which would no doubt have raised the LSAT scores of incoming students regardless of US News, so how do we know how much, or whether, U.S. News has affected LSATs?
And I'm also skeptical that U.S. News would lead to a decline in admissions of African Americans. U.S. News only counts the 50th percentile LSAT. Any law school that wanted to admit more black students without affecting its U.S. News score could simply matriculate black students with LSATs below its median, instead of white students who also had LSATs below its median. This would not affect U.S. News rank at all, even if the black students had much lower average LSATs than the white students. Perhaps there are law school admissions officers who don't understand how U.S. News and/or basic statistics works, and thus they are focusing on averages and not medians, but I'd need some evidence that this is true.
The good news is that the article points out that the ABA is making efforts to encourage minority students to think about law school early in their education.
Half Full or Half Empty?:
Empty:Inman Real Estate News: New home sales drop 7%: Inventory levels climb from a year ago
Full: Industry Week: New Home Sales Rise
3/4 Full: CNN: New home sales soar: March gain of 13.8% the biggest in 13 years, showing surprising strength in housing market, but that was partly driven by builders cutting prices. Marketwatch: Stunning 13.8% increase in new home sales: Median prices down year-over-year first time since Dec. 2003
Both: USA Today: New-home sales leap in March, but prices fall
Ivins on the Israel Lobby:
As I've noted before, no one denies there is an Israel lobby, and no one criticizes M&W merely for pointing out there is an Israel lobby.
Watch Professor Bernstein write about it, and about the influence of pro-Israel individuals more generally: "There is an Israel lobby. AIPAC is a registered pro-Israel lobby. AIPAC is one of the most influential organizations in the United States. Most American Jews support Israel. Some of the those Jews are very influential people. A smaller, but still substantial, percentage of American non-Jews support Israel. Some of those non-Jews are very influential people. Pro-Israel Americans hold high positions in academia, government, the media, and even write for blogs."
Wait a few days.
Check technorati, and see if anyone is criticizing me for "pointing out the painfully obvious." No? Well maybe it's because unlike M&W, I haven't extrapolated from these facts to a [as Ivins puts it] nutty and kooky "academic" thesis, including the idea that anyone who supports Israel is part of a "lobby". Just how nutty? M&W first footnote: "Indeed, the mere existence of the Lobby suggests that unconditional support for Israel is not in the American national interest. If it was, one would not need an organized special interest group to bring it about." Two obvious nutty things: first that the U.S. has ever given Israel "unconditional support" [M&W explicitly reference allegedly "unconditional" U.S. support for Israel on page 6 of their paper]; and second, that the existence of a lobby for a cause has anything to do with whether the cause is in the national interest or not. Do these Harvard and Chicago professors think that policies that ARE in the national interest just get pristinely through Congress without any lobbying? Pick any policy you think IS in the national interest (including the U.S. being anti-Israel!) and I can almost guarantee there is a lobby for it.
I acknowledge that some critics of M&W have gone over-the-top in their attacks on the paper. But let's not pretend that critics of the paper are attacking them for insubstantial reasons. Some pro-Israel activists try to undermine their opposition by calling them anti-Semites, even when it's not justified. Some who are unsympathetic to Israel try to undermine their opposition by claiming that perfectly legitimate criticism of their views is the work of pro-Israel hysterics who, for example, call you an anti-Semite if you mention that AIPAC is influential. Ivins, though avowedly pro-Israel herself, has fallen for those pushing the latter line on the M&W paper.
So, from Ms. Ivins, either a retraction, or evidence that anyone criticized M&W for pointing out there is an Israel lobby is due.[Also, contrary to what Ivins implies, folks didn't pick on Mearsheimer and Walt's paper because they go around looking for obscure academic papers to attack. Rather, the paper was quickly sent around by the Palestinian Authority to contacts all over the U.S., and appeared rather quickly on anti-Semitic websites worldwide. It's not M&W's fault that, e.g., David Duke praised their paper, but it would be horribly irresponsible to let the flaws in the paper go unanswered when it's being publicized by the likes of him.]
UPDATE: Meryl Yourish has more detailed criticism of Ivins' piece.
Law Review Write-On Tips, Part 1 -- Read the Bluebook Several Times Before the Competition:
Many first-year law students will be participating in write-on competitions right after the end of the semester. (Some schools, like UCLA, conduct their competitions during Spring break, but the start of the Summer turns out to be the most common time.) Over the next several weeks, I'll blog a bit about this, mostly based on the "Getting on Law Review" chapter of my Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review book.
Let me start, though, with a suggestion for what you can do now. Yes, I realize that you're already doing something now -- studying for exams -- but this is what you might want to do in the breaks when you just can't bear to look at your outlines for another minute. Just as an athlete needs to prepare well before the competition, so do you. The write-on competition will require specialized knowledge that you probably haven’t fully learned. Use the time before you compete to acquire that knowledge.
The first piece of knowledge I want to point to is knowledge about how to cite legal authorities, commonly called "bluebooking" (after the Bluebook, which is the most commonly used citation manual). Some law review competitions have a separate editing test which tests your ability to bluebook, as well as to proofread for other problems. Others only require you to write a paper, but may grade you partly based on the proper bluebooking of that paper.
Often the bluebooking counts for 20% or more of your grade. The law review, after all, is looking for people who’ll be good cite-checkers, and part of a cite-checker’s job is bluebooking. The law review is also looking for people who are diligent, and who are attentive to detail. If you weren’t willing or able to put in the effort to properly bluebook your own work, when the result affects your professional future, the editors will reasonably assume that you probably won’t do a good job bluebooking others’ work, when you’re on the law review and have no personal stake in getting things right.
Figure out whether your law review will grade you based in part on your bluebooking. If it does, then ask it what citational manual it uses -- whether it's the Bluebook or something else -- and whether it has any supplemental instructions explaining how its style deviates from the standard manual. Then read the citation manual (and any supplementary materials) several times. Make it your bus reading, your exercise bike reading, your bathroom reading. The manual contains many rules, and many of them are not intuitive. Even the existence of the rules might not be intuitive; for instance, would you have guessed that the Bluebook has a special citation formats for The Federalist, the Bible, and Shakespeare?
The only way you can master the manual is by reading it carefully and repeatedly, and by marking (with post-its, for example) those items that you found most surprising, and that you think you’ll most need to be reminded of during the competition. You will then (a) have a good sense of the rules; (b) understand the general logic behind the rules (not all the rules are explicable using a general logical principle, but some are); and (c) have seen enough of the examples of how the rules are applied that you might more easily notice when something departs from the rules. Pay particularly close attention to the rules related to (1) cases, (2) statutes and constitutions, (3) articles, (4) books, (5) short forms, and (6) citation signals.
I have my quarrels with the Bluebook. I think it’s often helpful to depart from some of the rules, and I’ve had fights with law review editors about that. You may have similar objections.
Save them for when you’re an editor or an author. During the competition, follow the citation manual word for word. And before the competition, read it again and again.
Related Posts (on one page):
Rape by Deception / Mistake?
The Daily Telegraph reports on a case that would usually just be a strange hypo in criminal law class. When reading the case, ask yourself what the result would be or should be either (1) if the defendant was telling the truth when he says that he was just mistaken, (2) if the defendant was lying, and actually knew whose room he was going into, and (3) if the defendant was mistaken at first, but at some point realized his error but for one or another reason didn't stop.
University of Chicago Mohammed Cartoon Panel:
The Chicago Tribune reports:
Thanks to reader Ben Wilson for the pointer.
John Fund on Juan Cole on Israel: "He calls Israel 'the most dangerous regime in the Middle East.'"
Juan Cole on Israel, written in 2004, when Ariel Sharon was prime minister: "The most dangerous regime to United States interests in the Middle East is that of Ariel Sharon."
Juan Cole on John Fund on Juan Cole: John Fund of the Wall Street Journal editorial page has published a large number of falsehoods about me. The most egregious is this:'He calls Israel "the most dangerous regime in the Middle East."' This a lie. I never said that.... I did not say it, or say or imply anything like it."
Conclusion: The Fund quotation is inaccurate because either an ellipsis should have replaced the "to U.S. interests," or Fund should not have used quotes, but "sheer fabrication" doesn't seem right. And I'll leave it to readers to judge whether Cole did not "say or imply anything like it."
Suggestion: Fund publish a correction in which he acknowledges that Cole did not say that Israel "is the most dangerous regime in the Middle East," but that Israel "is the most dangerous regime to United States interests in the Middle East." Then readers can decide whether this is an important distinction.
UPDATE: Several commentors argue that the correction would still be inaccurate, because Cole wasn't talking about "Israel" as a dangerous regime, but Ariel Sharon's Israel as a dangerous regime. I think this is semantics, but let's say that an even more precise correction would be that Cole wrote that presently, Israel "is the most dangerous regime to United States interests in the Middle East." Given that when he wrote this Ariel Sharon was prime minister of Israel, and he said Ariel Sharon's regime is the most dangerous to U.S. interests, I think that is indisputably accurate, though I'm sure somone will dispute it, anyway. I'm happy to make this as accurate as possible, because it's not like Cole hasn't said much more outrageous things, not all of which are noted in Fund's article.
Penn State Backs Down
regarding Josh Stulman's exhibit on the culture of terrorism in the Palestinian territories, as per this email letter to Ed Beck of Scholars for Peace in the Middle East:
I like the implict acknowledgement that there was indeed content-based censorship here, contrary to the previous claim by a university spokesman that it was all about Hillel's $75 contribution for a reception. I wonder if Penn State would have ultimately been so forthcoming but for (a) the fact that they are being sued for having an unconstitutional speech code and (b) the attention the matter received on this and other blogs.
fafblog on Sex and Slipperiness:
Thanks to Mark Eckenwiler for the pointer.
Tuesday, April 25, 2006
An Unintentionally Funny Article by Former Duke Law Professor Michael Byers
Right. I remember that wave of anti-British fear and loathing that swept over the U.S. after 9/11. Is it possible that Professor Byers is both playing to (and encouraging) the stereotypical view of the Canadian left of Americans as a bunch of ignorant, parochial, anti-foreigner goobers?
Byers also fails to notice the irony that when he went to return his green card, he "saw scores of Mexican men tending lawns and flowerbeds. Later, a woman from Guatemala cleaned my hotel room." He sees this, apparently, as a sign of American exploitation of foreigners (he compares the migration of immigrants to the U.S. to "moths coming to a flame"); no thought about why immigrants are eager to come here to do manual labor.
But the real punchline comes later, when he describes Duke as (drumroll please) "a conservative law school at a conservative university."
(For the unitiated, Duke can certainly be considered conservative--if your worldview is in Indymedia-Counterpunch-Ward Churchill territory.)
UPDATE: Reader Cornellian delivers a thorough Fisking in the comments, concluding with "Good riddance Mr. Byers, and thanks for creating a job opening at Duke."
"MSU Prof's E-Mail Outrages Muslims,"
and it outrages me, too:
Oh, come now — what fraction of the MSA are slave-traders, what fraction endorse the slave trade, and for that matter what fraction deserves any of the other pejoratives? What fraction even endorse that? As I've pointed out before, there are very troubling strands in modern Islam, ones that can't be dismissed as a mere lunatic fringe. But that's no reason to insult MSA members, many of whom may be quite peaceful. Such insults are unfair and rude in any circumstances, but they are especially rude and unprofessional when the insulted people are students at your own institution.
The article reports that, "Reached at home Monday evening, Wichman said he had regrets. 'I used strong language in a private communication that I would certainly not have used if this communication would have gone public,' he said." I'm glad he has regrets; but I hope that he would have such regrets even about a message that had stayed private — unfair private insults are also unprofessional and wrong.
At the same time, academic freedom protects unfair and excessive criticisms of activist groups and not just polite and proper criticisms; there may be some exceptions (for instance, for in-class speech, which I think the university may properly control somewhat more), but they don't seem applicable here. The remedy for offensive speech by academics is condemnation, some of which I'm trying to offer here. Apparently the MSA and other student groups had asked only for "a letter of reprimand," and that would probably be permissible, if it was couched as an expression of the university's own views rather than as a formal punishment that would have more concrete employment implications. But any real discipline for such speech would, I think, be improper.
The university was thus right to say that "there's little that can be done to punish Indrek Wichman, 55, a tenured professor of mechanical engineering, because his comments essentially constitute free speech." But I'm troubled that they would also "caution[ the professor] that any additional commentary ... could constitute the creation of a hostile environment, and that could ... form the basis of a complaint" under the policy, Denbow said. It seems to me that Prof. Wichman should be free to criticize Islam and Islamic activist groups — even to criticize them intemperately and using vast overgeneralizations — though we should in turn be free to criticize him for it.
Thanks to Michelle Malkin and reader Charles Chapman for the pointer.
Bloggers-Meet-Readers on Thursday, April 27, 9 pm, in Cambridge:
A bunch of bloggers, including some of us Conspirators, will be in Cambridge for a Harvard Law School Berkman Center conference on blogging and legal scholarship this Thursday and Friday (April 27 and 28), and we plan to hang out at the Zephyr Lounge in the Hyatt Regency Cambridge, 575 Memorial Drive -- that's the hotel at which we'll be staying -- from 9 pm or so to about 11 pm.
If you're around that evening and would like to join us, please do come by. So far, it looks like these bloggers are on for that evening:
Douglas Berman, Sentencing Law and Policy
Nationwide Housing Prices Decline:
One of the more idiotic* things I kept seeing in the MSM last year is quotations from various "experts" that while it's possible that certain "frothy" housing markets will see a correction, home prices never decline (in nominal terms) year over year nationwide, and thus will not do so in the future. This was said with great certainty, as if past performance (though conveniently the "past performance" guideposts started after the Great Depression) is a guarantee of future results, even though the nationwide housing bubble of the past several years is absolutely unprecedented in American history.
Guess what? According to data from the National Association of Realtors [Excel file], the median price for a used home sold last June was $229,000; for March 2006 it was $218,000. The mean price for a used home sold last June was $275,000; for March 2006 it was $266,000. True, this isn't a year over year decline yet, but with inventories reaching record levels in formerly "hot" markets around the country (and up 39% nationwide, year over year), speculators heading for the exits (e.g., the D.C. area), and interest rates rising, it's hard to see where a sudden price spurt is going to come from.
I still remember reading in 1999 that "long-term" investors should hold their NASDAQ stocks, because while a small correction is possible, long-term holders can expect to achieve price appreciation, just at a lower rate than in the past. I was skeptical, but I heard the same message so many times from so many places that it affected my investment decisions, obviously for the worse. And that's when I learned never to listen to the conventional wisdom in the MSM about financial matters.
* Why idiotic? (a) there's no inherent economic reason why home price can't/won't fall nationwide; (b) they did in the U.S. in the 1930s; (c) they did regionally between 1989 and 1995; (d) they recently did, sharply, in Japan; and (e) the nationwide runup in prices is unprecedented, rendering past behavior of the market less useful in predicting future returns.
The Vioxx Litigation and the Judicial System:
Ted Frank at Point of Law reviews evidence that the judicial system is not exactly working well in the Vioxx litigation, at least in certain jurisdictions. Joinder of in-state plaintiffs (who are later dropped from the case)to avoid diversity jurisdiction, trial court judges ignoring Daubert trilogy standards for the admissibility of expert testimony, juries ignoring overwhelming evidence against plaintiffs to favor hometown plaintiffs against "evil" (and wealthy) out-of-state corporate defendants--unfortunately, this has a very familiar ring to it. It's hard to see how the Texas Supreme Court will let the evidentiary rulings stand, as Texas has recently taken among the hardest lines against "junk science." The big danger for Merck, I think, is the temptation to enter a global settlement before it's able to win the inevitable appellate rulings that plaintiffs who took Vioxx for short periods of time simply have no sound evidence of causation.
Monday, April 24, 2006
Mocking Internet Scares,
to the tune of "The Day the Teddy-Bears Have Their Picnic." Very funny. Thanks to my friend Jennifer Rothman for the pointer.
Baby Shower Trivia Questions:
My wife is organizing a baby shower for a friend of ours, and asked me to come up with a little trivia game -- the questions can be about "[a]nything fun and baby-related," though I think that small-child-related is fine, too. (Nursery-rhyme-related questions, for instance, are fine, but the old "Ring Around the Rosey" / plague connection item seems likely to be a myth.) Any suggestions?
Please post questions together with links to pages containing the answers, if you have a link; that way, other readers will have fun guessing, and both the readers and I will have verification that the answers are accurate. If you have a paper source but not a link, please include the answer and a citation to the source. Comments casting doubt on the accuracy of an earlier answer, or suggesting a more precise formulation for the question, are perfectly fair game. I like my trivia games to be well-vetted . . . .
My Paper on Scholarship and Blogging Is Now Up:
It's for the Berkman Center conference, and it's called Scholarship, Blogging and Trade-offs: On Discovering, Disseminating, and Doing.
Site Temporarily Down: My apologies to readers that OrinKerr.com seems to be down right now. As soon as it's back up, I'll have new posts on Judge McConnell's recent Booker article and my own review of a new book about Supreme Court clerks. Thanks for visiting, and my apologies for the server problems.
UPDATE: The site is back up now.
Pro-Taliban Speech Constitutionally Protected, Criticisms of Homosexuality Unprotected:
Here's an excerpt from Judge Reinhardt's short dissent in Lavine v. Blaine School Dist. (Jan. 2002); Judge Reinhardt was taking the view that a school improperly disciplined a student for writing a poem with a violent theme:
Except of course, according to Judge Reinhardt's more recent Harper v. Poway Unified School Dist., when the speaker is saying that homosexuality is shameful, or displaying a Confederate flag, or making any other "derogatory and injurious remarks directed at students' minority status such as race, religion, and sexual orientation" (even if the remarks deal with important public debates, aren't personally addressed to any particular person, are in response to expressions of contrary views, and haven't been found to create a substantial risk of disruption).
The First Amendment, you see, doesn't protect those viewpoints in public high schools. It protects Taliban sympathizers (of course except when they criticize minority religions, or minority sexual orientations). It protects "any other person who disapproves of one or more of our nation's . . . policies for any reason whatsoever." But it doesn't protect condemnation of homosexuality -- an important argument for those who want to explain why they disapprove of, say, the nation's policy on constitutional protection for same-sex sexual relations, or the state's policy on employment discrimination based on sexual orientation. It doesn't protect the Confederate flag, presumably because it's often seen as an expression of disapproval for the nation's civil rights policies. (The Confederate flag can also be seen as having other meanings, but I take it that the offensive meaning, at least today, relates to some degree of disapproval of civil rights policies, which is on very rare occasions actual endorsement of slavery and much more commonly a generalized defense of Southern white culture, including its sometimes racist strains.)
And presumably it doesn't protect speech that criticizes fundamentalist Islam, since that is of course a minority religion. The Taliban sympathizers can speak and criticize Americans and presumably Christians (but not Jews or gays) all they want; but Taliban opponents may not. That's because in the Ninth Circuit there's now a Judge-Reinhardt-created viewpoint-based First Amendment exception for speech that minority high school students find is "derogatory and injurious" towards their "race, religion, and sexual orientation."
I'll say it again: Under existing First Amendment precedents, there is a viewpoint-neutral First Amendment exception for disruptive speech in schools. Sometimes speech that's hostile based on race, religion, or sexual orientation -- as well as speech that offends people for a wide variety of other reasons -- might indeed lead to substantial disruption, and thus might be restricted.
But this is at least a facially viewpoint-neutral standard that potentially applies to speech on all perspectives, and doesn't categorically cast out certain student viewpoints from First Amendment protection. While the standard isn't without its problems, it is at least basically consistent with the First Amendment principle of "equality of status in the field of ideas." And there are quite plausible arguments that the government as K-12 educator should have still broader authority over speech in public schools (though this too would be a viewpoint-neutral First Amendment exception). What bothers me is the Ninth Circuit's newly minted viewpoint-based First Amendment exception, which singles out certain ideas for lack of constitutional protection.
Related Posts (on one page):
Penn State Censorship--The Plot Thickens:
Reader Andy Banducci points out that the "harassment" policy AD42 that Penn State has relied on in censoring student Josh Stulman's exhibit of paintings on the culture of terrorism in the Palestinian Territories is under constitutional attack by the Alliance Defense Fund. You can read the complaint here.
According to this news story, Penn State's response to the complaint states: "It is denied that Penn State maintains a 'speech code policy.'" It will be pretty hard for Penn State to maintain that posture when the email Stulman received cancelling his exhibit apparently stated that his exhibit was in violation of AD42 because it "did not promote cultural diversity" or "opportunities for democratic dialogue."
Not to belabor the obvious, but after federal courts consistently invalidated state university "speech codes" in the 1990s, the universities revived these codes in the guise of antidiscrimination policy. There is no reason to believe that the universities will be any more successful in defending the (barely disguised) codes this time, but neither the Constitution nor common sense seems to be much of a barrier to speech regulation at public universities these days.
Sunday, April 23, 2006
Censorship at Penn State Update:
SEE IMPORTANT UPDATES AT THE BOTTOM OF THIS POST!
I emailed Penn State spokesman Bill Mahon, who was quoted as stating that the Joshua Stulman's exhibit on the culture of terrorism in the Palestinian territories (see linked post below) was not censored for content, but for other reasons, to explain what those other reasons were. Here is the response I received:
This cached Google page shows that Mr. Stulman was scheduled to have an exhibit April 23-29 at the Patterson gallery, topic TBA. Mr. Stulman had previously exhibited there in February.
As near as I can tell, no one has denied that Mr. Stulman received an email stating that his exhibit may not go forward as scheduled, or that he was told that his exhibit was objectionable because it "did not promote cultural diversity" or "opportunities for democratic dialogue."
If I'm reading Mr. Mahon's email correctly, however, he is focusing on the fact that Hillel sponsored
So we have two possibilities here: (1) Penn State's art faculty has a rule against displaying any student work that has any sponsorship, including sponsorship by a recognized student organization such as Hillel. However, this rule is only applied when the faculty doesn't like the message the art is sending or (2) there is no such rule, or at least it wouldn't apply to a noncommercial, student organization such as Hillel, but pretending there is such a rule is a convenient excuse for what would otherwise look like pure heavy-handed enforcement of political correctness.
Needless to say, neither option reflects well on Penn State.
UPDATE: I found the Patterson Gallery guidelines for exhibits of student work online, and I don't see any rule prohibiting sponsorship.
FURTHER UPDATE: The Centre Daily Times has more:
YET ONE MORE UPDATE: This is precious. Professor Charles Garoian, who is apparently responsible for refusing to allow Stulman's exhibit to be displayed, published (with a co-author) a series of three articles in 1996 in a journal called School Arts entitled "Censorship in the art classroom," with the final article in the trilogy called "Fighting censorship in the art classroom." The good professor wrote, prophetically:
Compare this to the email Stulman received
Even more precious, in Part II of the three-part series, Garoian criticized "self-censorship" at the Penn State School of Visual Arts:
Papers on Blogs and Legal Scholarship: You can download drafts of the short papers written for next week's symposium on blogs and legal scholarship at this SSRN page. Contributors with posted papers include two Conspirators (Eugene and myself), Glenn Reynolds, Larry Solum, Gordon Smith, Kate Litvak, Christine Hurt & Tung Yin, Eric Goldman, Doug Berman, Ann Althouse, Larry Ribstein, and Gail Heriot.