Saturday, June 10, 2006

Wind Farms become Collateral Damage:

Opponents of a proposed wind farm off the coast of Massachsetts inserted a provision into the 2006 Defense Authorization Act barring federal permits for new wind projects pending completion of a study on whether wind turbines may interfere with military radar. As a result, some one-dozen wind power projects arond the country are on hold, according to the Washington Post.

More than 130 wind turbines are proposed for the hilltops of central Wisconsin, but that project and at least 11 others have been halted by the Defense Department as it studies whether the projects could interfere with military radar.

Wind farm developers, Midwestern legislators and environmentalists say the farms pose no risk, noting that there are already numerous wind farms operating in military radar areas. They say a renewable, domestic source of energy such as wind is crucial to energy security and independence. . . .

Defense and FAA officials said the "proposed hazard" letters are not prohibiting the wind farms, just delaying them until any risks to military operations can be assessed and resolved.

"We're not saying, 'No, you can't do this,' " Spitaliere said. "We're looking to work with the proposals to mitigate the hazard."

UPDATE: There's some more detail at Prometheus.

I'm headed to Italy

for three weeks to teach comparative constitutional law in USD's summer program in Florence. (Look, somebody has to do it.) It's unlikely I'll post much, if at all, during that time. So if gay marriage breaks out on us somewhere in the next three weeks you'll have to deal with the decline of American civilization on your own.

Friday, June 9, 2006

Jonathan Rauch on Foreign Policy Realism:

As usual, an interesting and thoughtful column; I'm not sure that it's right, but it's definitely worth reading.

Dean Graber:

He has plans for the University of Maryland School of Law. With your help, he hopes to "completely makeover the law school in [his] 75 minutes of power."

Congratulations to Orin:

I'm delighted to say that my friend and coblogger Orin Kerr is becoming a coauthor of the top criminal procedure casebook, which will now be Kamisar, LaFave, Israel, King & Kerr. (The book comes in three flavors, Modern Criminal Procedure, Basic Criminal Procedure, and Advanced Criminal Procedure.) He's also becoming a coauthor of the leading criminal procedure treatise and hornbook, now LaFave, Israel, King & Kerr six-volume treatise on Criminal Procedure, together with the one-volume hornbook by the same authors. Well done!

The amendment is dead, long live the amendment:

The defeat of the federal marriage amendment in the Senate on Wednesday was welcome, if entirely expected. It was a nice surprise to see the amendment fall short of 50 votes even on a procedural motion (its total would have been lower had it come up for a substantive vote); to have seven Republicans vote against it; to hear even southern conservative Senator John Warner (R-VA) say he thought it went too far; and to realize that this probably set its high-water mark in the Senate.

The federal amendment, already on life-support, is dead for the foreseeable future, barring one of three very unlikely events: (1) a Supreme Court “victory” for gay marriage; (2) unprecedented and overwhelming gains for the anti-gay-marriage movement in the next few national election cycles; or (3) a proposal for a much narrower amendment that would, for example, simply strip courts of jurisdiction over the issue. Even a narrower amendment would probably fail, but things would get a lot more interesting.

We’ll continue to see this amendment, of course. It will rise from its grave every two years like a ghoul in a late-night horror movie that one repeatedly kills, only to see it stumble blindly forward again (as Justice Scalia once memorably said about the Lemon test for religious establishment). It’s the living dead.

All of this is cause for some celebration. But it is a muted celebration, the way one celebrates an essentially defensive victory. The debate in the Senate was a defeat for the amendment but it was not a win for gay marriage, which hardly any Senator even hinted at supporting. If we had an up-or-down vote on gay marriage in the Senate, it would lose 98-2, or thereabouts. And while many of the arguments directed at the amendment were quite good (emphasizing federalism, the overstated threat of judicial activism, and the overbreadth of the amendment), some of the arguments against the amendment were, shall we say, deflating. So, for example, we heard repeatedly that there were much more important issues we needed to address, like gas prices and our delicate relations with the Principality of Liechtenstein. I guess I have to agree with that in one sense. Any proposal is more important than one that should never have seen the light of day. Still, there was something baleful about cheering on people who were suggesting that anything related to the question of whether gays could marry was wasting our precious time. There was that not-those-people-again tone in much of the person-on-the-street interviews seen on TV, a sentiment some Senators against the amendment seemed to be exploiting. Even my beloved federalism argument can sound, in the wrong mouth, like “the states should be allowed to do this godawful thing if they want to.” Forgive me for not finding much inspiration in that.

Then came the news, the same day, that Alabama had become the 19th state to ban gay marriage in its state constitution, which I suppose will stop dead in their tracks all those Alabama state court judges who've been seduced by pro-homosexual propaganda. Alabama and most of the other states that have passed constitutional gay-marriage bans (e.g., Texas, Oklahoma, and Mississippi) were unlikely to recognize gay marriage or anything else gay in the near future anyway, whether by legislative or judicial action, so not much is immediately lost. But I get the sense that long after the rational debate over whether gay marriage harms anything has been resoundingly answered “no,” we’re going to be stuck with these state amendments, adopted in a time when we didn’t know any better. More precisely, “we” won’t be stuck with these state constitutional amendments; gay families unfortunate enough to live in those places, with little means of escape, will be stuck with them.

With a federal amendment now effectively off the table, my guess is the anti-gay-marriage movement will redouble its efforts in the remaining dozen or so states that seem likeliest to pass such measures. The result, after a few more election cycles, will be a nation where about 35 of 50 states will be unable to give gay marriage (or civil unions or watered-down domestic partnerships) a try long after legislative and popular majorities in those states think it’s a good idea. It’s not exactly the same as having a federal amendment, but it’s the next worst thing.

Climate Change & the Common Law:

Earlier this week, the U.S. Court of Appeals for the Second Circuit heard oral arguments in Connecticut v. American Electric Power. In this case, several state attorneys general are suing a handful of utilities alleging that the utilities' emissions of greenhouse gases contribute to the "public nuisance" of global warming. This is an innovative use of a traditional, common law cause of action. Nonetheless, I am quite skeptical, as I explained in this 2004 column and this interview. The lower court was also quite skeptical of the suit, dismissing it as nonjusticiable (see story here).

From the accounts I've heard and read, the Second Circuit panel was somewhat skeptical of the state AGs claims. Here the Cato Institute's Jerry Taylor provides a report, along with some libertarian commentary. Taylor thinks the suit is a somewhat welcome development insofar as it represents a greater willingness among environmental advocates to rely upon property rights and common law causes of action (instead of centralized regulations) to address environmental harms. As Taylor also notes here, I've explored the question of how to apply property rights principles to climate change, and my conslusions are not those typically advanced by free market advocacy groups (see here, here, and here).

Is Anti-Mutant Bias Invidious Discrimination?

Law student blogger Ivan Ludmer considers equal protection for mutants. Whatever the proper legal answer, I am sure equal protection alone would not have satisfied Eric Magnus Lehnsherr. (LvPB)

Related Posts (on one page):

  1. X-Men Aren't Human:
  2. Is Anti-Mutant Bias Invidious Discrimination?
Dixie Chicks Tour Problems:

While sales of the Dixie Chicks new album remain strong, ticket sales for their concert tour have been quite disappointing, Bilboard reports.

Initial ticket sales for the Dixie Chicks' upcoming tour are far below expectations and several dates will likely be canceled or postoned.

Ticket counts for the 20-plus arena shows that went on sale last weekend were averaging 5,000-6,000 per show in major markets and less in secondaries, according to sources contacted by Billboard. Venue capacities on the tour generally top 15,000.

I suppose it is one thing to support the Dixie Chicks by buying their album, quite another to go to a show. The Chicks might miss their traditional fan base after all.

Related Posts (on one page):

  1. Dixie Chicks Tour Problems:
  2. Dixie Chicks Hit No. 1:
  3. Sunday Song Lyric:
Big Tobacco Goes Smokeless:

USA Today reports that the big cigarette companies are introducing smokeless tobacco products in response to the proliferation of smoking restrictions around the country. One new product, similar to some already developed by smokeless tobacco companies, is a tobacco pouch users tuck under their cheek -- just like traditional smokeless tobacco -- that does not require chewing or spitting. Public health experts are split on the development. While smokeless tobacco is clearly less risky than smoking -- that is, the mortality and morbidity rates from equivalent rates of use is quite less -- some fear that these new products will entice non-smokers.

Smokeless tobacco poses fewer health risks, but smokers are unlikely to give up cigarettes entirely for it, says Greg Connolly, director of Harvard University's Tobacco Control Research Program. "It's like trading in your Mercedes for a tricycle." He says the new products will more likely attract non-smokers, those who might otherwise quit and smokers in a smoke-free place. "This is an effort to keep people using tobacco," says Matthew Myers, president of the Campaign for Tobacco-Free Kids.

Whatever else the impact of these products, as a non-user, I'd still be thrilled if they eliminate spit cups!

Related Posts (on one page):

  1. Big Tobacco Goes Smokeless:
  2. Against Nicotine Abstinence:
One Last Thought About Lithwick's Column: I'm glad to see that Eugene and I are on the same page on the issue of Lithwick's writing. While we're on the topic I thought I would add one more oddity about her latest column: the ending. Here it is:
Clearly, critics on the right are hoping to nudge the justice back into the fold with all the unremitting scorn and abuse. Note to Ann Coulter's breasts: It's not working.
  Again, this is very zippy. It also sneaks in another mention of Ann Coulter's breasts, which creates the impression (among other things) of a connection between the end and beginning of the piece.

  There's just one problem: Lithwick knows that her statement is false. It is rather hard to believe that Ann Coulter, Tom Parker, and the Wall Street Journal editorial page have unleashed their "unremitting scorn and abuse" against Justice Kennedy with the subjective intent of "nudging" him to vote in a way that they like. Indeed, the entire point of Lithwick's column is that conservatives have an irrational instinct to lash out and blame Kennedy for everything, no matter what he does. If that's right, it makes no sense to suggest in the last paragraph that this irrational lashing out is actually an effort to persuade Justice Kennedy to change his votes. Still, the conclusion makes conservatives look silly and mentions breasts. So it stays in.

  Anyway, I hope I'm not being too critical. I have enjoyed Lithwick's writing a great deal in the past, and I know she can be very sharp. But I think a little less zing and a little more effort to be accurate and true would improve her columns considerably.

Related Posts (on one page):

  1. One Last Thought About Lithwick's Column:
  2. Lithwick on Coulter on Kennedy:
  3. Dahlia Lithwick on Conservatives:
Lithwick on Coulter on Kennedy:

I think Orin's take on Slate's Dahlia Lithwick is quite right, both on the positive and on the negative. One other item from her column I noticed:

And an excerpt from the new book by Ann Coulter's breasts suggests that he is somehow responsible for the ban on prayer in public schools.

Now I've disagreed with a great deal of what Ann Coulter has said (though I generally try not to bring up her breasts in the process). But I don't quite see the aptness of Lithwick's criticism. Here's the linked-to paragraph from Ann Coulter's column, which is also the only mention of Justice Kennedy in that column:

Among the things the Supreme Court has held “unconstitutional” are prayer in public schools, moments of silence in public schools (which the Court cleverly recognized as an invidious invitation to engage in “silent prayer”), and displays of the Ten Commandments in public schools. In 1992, the Court ruled it “unconstitutional” for a Reform rabbi to give a nonsectarian invocation at a high school graduation ceremony on the perfectly plausible grounds that Rhode Island was trying to establish Reform Judaism as the official state religion. (Opinion by Justice Anthony Kennedy.)

Ann Coulter starts out by talking about the school prayer cases and some other cases. Then she moves on to talk about the graduation prayer case, and correctly notes that this case was written by Justice Kennedy. Coulter is certainly faulting Justice Kennedy's position on graduation prayer, but for the life of me I can't see how she's "suggest[ing] that [Justice Kennedy] is somehow responsible for the ban on prayer in public schools."

Lithwick's work is always very readable, and sometimes quite incisive. But at times she seems to write with less care than the subject deserves, and with not enough attention to possible weaknesses in her argument.

Gays, Federalism, and Minority Rights:

The brouhaha over the latest iteration of the Federal Marriage Amendment has stimulated interest in the relationship between federalism and gay rights. Strikingly, gays seem to be an unpopular minority that benefits more from decentralized federalism than from the concentration of power in Washington. Historically, most scholars and commentators have tended to believe that the federal government is a better protector of unpopular minorities than are state and local governments. Obviously, this view owes much to the history of African-Americans, who were twice (in the 1860s and 1960s) rescued from vicious state oppresssion by the feds. I think that this view is an oversimplification of the African-American experience (for some reasons why, see here and here), but there can be no denying the lessons of the Reconstruction and Civil Rights Movement eras.

The gay experience, however, cuts against the traditional view of the relationship between federalism and minority rights. Gays have fared far better in the statehouses and city halls than in Congress and the White House. This trend has persisted under both Democratic and Republican presidents and congresses, and so cannot all be blamed on George W. Bush. Over the last several decades, numerous states and localities have enacted laws protecting gays against discrimination, several states (including Connecticut and California) have enacted civil union laws through their democratic processes, and one (Massachusetts) has adopted gay marriage, though by judicial decision.

By contrast, the few federal interventions in this field have mostly cut against gay interests rather than for them (e.g. - "Don't ask, Don't tell," the Defense of Marriage Act, etc.). To be sure, many state and local governments have historically had antigay policies of various types (most notoriously, antisodomy laws), but the feds did little or nothing to curb such excesses and there is little doubt that if policy towards gays had been under federal control at the time these laws were enacted, gays would not have been treated any more favorably than they were by the states. As Yale Law Professor William Eskridge documents in his book Gaylaw (1999), the federal government in fact has a long history of antigay discrimination as bad or worse as that of the states. Even the belated invalidation of antisodomy laws by the Supreme Court in Lawrence v. Texas came at a time when only 13 states still had such laws and most of them no longer actively enforced them.

Why have gays, contrary to the conventional wisdom, benefited from federalism? Perhaps it is simply random chance or contingent factors. However, in my view there is a deeper logic at work. At an estimated 2 or 3 percent of the population, gays lack the numbers and resources to have a major impact on national politics, especially in comparison to the much greater numbers and resources of their main adversaries, the religious right. As Bruce Ackerman pointed out in a classic Harvard Law Review article (unfortunately unavailable online), gay political influence at the national level is also reduced by the fact that many of them are "in the closet" and are therefore unlikely to engage in pro-gay political activity so long as that is the case.

However, the gay population (at least the openly gay portion thereof) is highly concentrated in major urban areas, such as New York, DC, and San Francisco. In these places, gays are numerous enough to have some clout. This power is accentuated by the fact that gays tend to "vote with their feet" for cities where there is greater tolerance for them on the part of the general population. Thus, gays can succeed politically at the local and state level because 1) they tend to be concentrated in a few specific areas, magnifying their influence, 2) those areas will likely be places where antigay political forces are comparatively weak, and 3) in such relatively tolerant locations, a higher percentage of the already large gay population will be out of the closet and able to participate in pro-gay political action. Moreover, given the important contributions of gays to local economies, local governments seeking to increase tax revenue have at least some incentive to adopt progay policies in order to get a leg up on their competitors.

Although I can't cover them all in this post, there are important lessons here for both the gay rights movement (which should be more wary of the growth of federal power than many of its members seem to be), and for our broader understanding of the relationship between federalism and minority rights.


Thursday, June 8, 2006

Dahlia Lithwick on Conservatives: Dahlia Lithwick is a very funny writer, but she often leaves behind her normally sharp analytical skills when she writes about conservatives. Her latest Slate article offers a good example.

  Lithwick's piece argues that conservatives criticize Justice Kennedy for every position Kennedy takes, and that the criticisms are internally inconsistent and unprincipled. She uses two primary examples. First, former Alabama Supreme Court Justice Tom Parker based his election campaign on his opposition to Roper v. Simmons, and particularly on the fact that Kennedy's opinion trumps the will of state legislatures that wanted to allow the death penalty for 16 and 17 year-olds. Second, the Wall Street Journal editorial page recently wrote a piece invoking Justice Kennedy's opinion in Lawrence v. Texas as justifying the need for a constitutional amendment on same-sex marriages. In particular, the Journal argues that Kennedy's opinion makes it more likely that courts will trump the will of state legislatures that want to define marriage in a particular way.

  According to Lithwick, the fact that these two criticisms are both being made by conservatives against the opinions of Justice Kennedy shows that conservatives are inconsistent and unprincipled:
Just so we're perfectly clear here: Conservatives are bellowing at Anthony Kennedy because in Roper he ignored the Constitution and attempted to divine the will of the majority of the people. But they also hate him because in Lawrence he ignored the will of the people as he attempted to divine what was constitutional.

Not a whole lot of wiggle room there, really.
  The writing here is sharp, and if you don't look too closely it might even seem kind of witty. But if you actually think about the argument Lithwick is making, it quickly becomes clear that it makes no sense.

  Whether you agree or disagree with the criticisms Parker and the WSJ are making — for that matter, even if you think Parker and the WSJ are totally nuts — it's not hard to see that they are making the same point. They both criticize Justice Kennedy for writing opinions that trump the will of the people as expressed through the legislative process. Both Parker and the WSJ want the law in these areas to be made by state legislatures instead of the U.S. Supreme Court, and they oppose opinions Kennedy wrote that ruled that legislative decisionmaking on the issue was prohibited by the Constitution. Again, you can agree or disagree. But these two criticisms make the same basic point, and seem to follow from a consistent perspective.

  Lithwick misses this — or, perhaps, tries to hide this — by comparing apples and oranges. In the snippet above, she compares complaints that Kennedy ignored the will of the people with complaints that Kennedy was trying to divine the will of the people. But as far as I know, no conservative has criticized Justice Kennedy on the ground that Roper "attempted to divine the will of the majority of the people." Rather, conservatives have criticized Roper on the ground that it ignored the will of the people as expressed in state law, and its analysis of the emerging national consensus was quite plainly unconvincing. Again, the criticism in the two contexts seems to be pretty much the same.

  (originally posted at
More on Grade Inflation:

The recent discussion reminded me of Justice Blackmun's law school transcript, which I saw in Linda Greenhouse's Becoming Justice Blackmun (p. 12). The grades of the future Supreme Court Justice, Harvard Law '32:

  • 2 As.

  • 4 Bs.

  • 8 Cs.

  • 3 Ds.

But before folks start up with the snide comments, note that this put him just shy of the top 25% of the class (120th out of 451).

Tax Questions Are Everywhere:

A reader asks:

[W]hen are US bounties, such as the kind on Abu Musab al-Zarqawi, subject to US income tax?

I love the question, a perfect example of the lawyer's gift for finding important legal issues in the unlikeliest contexts. I have no idea what the answer is, but I'm sure some of our commenters do.

Why I Call Students Who Got A's and A+'s in My Class:

A commenter to my post below wrote:

I'm curious why you decided to call students and why you continue to do it. I'm not saying it's a bad thing, but I've never heard of other professors doing it, so it does seem a little odd.

My first reaction: What a strange question. Why does anyone congratulate anyone else on some success? Because it makes the congratulated person feel good, and the good feelings are well earned. Because it's a mark of respect. Because the congratulated person is pleased and even grateful for the congratulations, and the congratulator ends up feeling pleased in turn.

At the same time, maybe I'm missing something, because indeed to my knowledge this is a pretty rare practice. Is there a downside that I'm not seeing? One commenter said, "I once congratulated a student on winning the award for second highest grade, and he said so, you thought someone did better than I did?'" Never happened to me, and I doubt it ever will; plus, even if someone reacted this way, it would hardly be a deep insult to me, or reflect deep unhappiness on his part, and it would tell me a little about the person's character (relevant when deciding on whether and how to write letters of recommendation for people). Another wrote, "I once got a letter (well, an e-mail) from a law professor saying that my final paper was really great, and 'deserved' an A+, but because he was 'not a nice person' or something like that, I was only getting an A. Thanks a lot, man. Thanks a lot." OK, I agree that this particular professor might want to decrease rather than increasing the personal touch.

Related Posts (on one page):

  1. More on Grade Inflation:
  2. Why I Call Students Who Got A's and A+'s in My Class:
  3. Grading on a Curve:
  4. Law School Grade Inflation:
  5. Exams Graded!
Mitzvah Thanks!

Thanks to those who responded to my invitation to do the "mitzvah" of providing charity in the Holy Land by sending me $1 (and sometimes more) via Pay Pal to distribute on my recent trip. I distributed the proceeds, plus my own contribution, partly to the Magen David Adom (Israel's Red Cross), but mostly to an organization called Yad Sarah, which is best known for lending free medical equipment (e.g., wheelchairs) to those in need.

Too Much Democracy:

Tuesday's defeat of a sitting judge in California by a seemingly far less qualified candidate is a rarity. But the underlying mechanism is not:

Political consultants have long complained that judicial races -- particularly in a county as large as Los Angeles -- are somewhat arbitrary. Few voters have heard of any of the candidates, and yet most vote anyway. The voters' choice often comes down to the scant information in front of them in the voting booth: the candidates' names and job descriptions.

A candidate's ethnicity might thus influence things. A candidate's job title might, and often does, in favor of incumbents. Sometimes the candidate's having bought space in a slate mailer might influence things, though in sufficiently low-profile races even that's likely to have little effect. (A slate mailer is a political mass mailing that promotes a slate of candidates from the Governor on down, a slate that's often united chiefly by the candidates' willingness to pay money to be included in the slate mailing.)

Direct democracy is likely to yield good results only to the extent that the voters are actually likely to have meaningful information about the candidates. And voters, being rational people, aren't going to spend much time -- or often any time -- researching every candidate for every judgeship, community college district seat, and the like.

At least with ballot measures there are meaningful arguments in the ballot pamphlet, and the voters can use imprecise but tolerably helpful proxies to help them make the decision. With statewide ballot measures, there's also a decent amount of advertising and relatively memorable editorializing. Not so with most of the down-ticket races. Perhaps in a few cases there might be scandals that cause some trial judge to be duly removed from office by the voters. But that happens very rarely; most of the time the voters' choices are based on virtually no information.

One possible solution is to have races be partisan. At least then one can use party affiliation as a decent (though admittedly imperfect) proxy for a candidate's likely beliefs, and count on the party to do some direct or indirect screening of its representatives (at least at the general election). I'm pretty sure that this is much better than nonpartisan voting for local executive and legislative races, though in some heavily one-party cities it would make more sense to try to develop local parties beyond just the Democrats and the Republicans.

But if we think that partisan races for judicial office are bad -- I'm not sure about that, and I know some states have partisan judicial races, but for now let's assume they are -- then it's much better to have a purely appointed judiciary than an elected one. And if you do want elections for judges, at least limit them to the very few positions where the voters are likely to pay attention, such as state supreme court positions.

Incidentally, I'm told that the L.A. bar association puts out ratings of judicial candidates. Unfortunately, I'd only heard about this recently, and forgot to look into it in time. My error (which led me not to vote on any of the judicial candidates) -- but if even I made this error, and didn't have the association's endorsements in my voting booth, how many nonlawyers voters do you think had those endorsements in their voting booths?

Incidentally, when we all start voting more from our home computers, the situation might change, mostly (I think) for the better but possibly for the worse -- with home computer voting, we might at least be able to easily integrate various groups' recommendations into our own votes. I discuss this possibility in this short article. But if such a system isn't implemented (and in any event until that system is implemented), I think that voting for many down-ticket races, especially nonpartisan down-ticket races, is too much democracy.

Grading on a Curve:

A recent comment brought up the traditional criticism of grading on curves -- what if 80% of a particular class did really well, and deserves As? what if 80% did badly, and deserves Fs? why not grade objectively rather than comparatively? -- so I thought I'd repost my paean to curves from 2002. (Note that this discussion is about curves in large classes, of about 30 students or more; for smaller classes, such as 12-student seminars, the curve is not apt, though of course there's some controversy about where the cutoff size should be.)

Lots of people really oppose curves. Shouldn't people be graded on their own merits, they reason, rather than based on how other students have done? After all, they ask me, don't you know the difference between an A exam and a C exam?

Well, yes, I do -- but I surely do not know the difference between an A- exam and a B+ exam. And this ties in to some of the reasons why grading on a curve is the lesser of evils:

  1. Sometimes I draft a hard exam and sometimes an easy one. I often can't tell which is which, since they're all easy to me -- I know the material, after all! So something might look to me like a C exam not because this student is unusually bad, but because the exam was just harder than ones from previous years.

  2. Even setting the previous factor aside, I've been in teaching for 12 years now -- but many professors are new, and don't even have the data points that I have. In some areas, such as legal writing, the typical teacher has even less experience. (Likewise, in undergraduate institutions, many classes are traditionally taught by relatively inexperienced teachers.) Where are they going to get the distinction between A-s and B+s?

  3. Perhaps the curve is unfair to a class that consists of unusually strong students -- but the absence of a curve is unfair to a class that has an unusually harsh professor. And the variation in class strength, especially classes of 50-100 students (the size of nearly all my non-seminar classes)), is likely to be much less than variation in professor harshness.

  4. The pressures for grade inflation are quite real, and flow from basic human nature: Most people don't like giving students low grades, especially once they've spent many hours with them. When I have small classes that can't be curved as easily (since there are so few data points that there's a higher chance that the class is unusually strong or weak), I feel this pressure myself, even if the class is still blind-graded. And of course if a professor is known for resisting this pressure, then fewer and fewer students will end up taking his class.

There are, I'm sure, many more advantages to the curve; and I think these advantages vastly outweigh the disadvantages. Like democracy, grading on a curve may be the worst possible system -- except for all the alternatives.

Dorothy Parker on New York:

On this happy morning, it seems right to quote from her ode to America's greatest city. From her essay, published in McCall's in January 1928, entitled "My Home Town":

It occurs to me that there are other towns. It occurs to me so violently that I say, at intervals, "Very well, if New York is going to be like this, I'm going to live somewhere else." And I do — that's the funny part of it. But then one day there comes to me the sharp picture of New York at its best, on a shiny blue-and-white Autumn day with its buildings cut diagonally in halves of light and shadow, with its straight neat avenues colored with quick throngs, like confetti in a breeze. Some one, and I wish it had been I, has said that "Autumn is the Springtime of big cities." I see New York at holiday time, always in the late afternoon, under a Maxfield Parish sky, with the crowds even more quick and nervous but even more good-natured, the dark groups splashed with the white of Christmas packages, the lighted holly-strung shops urging them in to buy more and more. I see it on a Spring morning, with the clothes of the women as soft and as hopeful as the pretty new leaves on a few, brave trees. I see it at night, with the low skies red with the black-flung lights of Broadway, those lights of which Chesterton — or they told me it was Chesterton — said, "What a marvelous sight for those who cannot read!" I see it in the rain, I smell the enchanting odor of wet asphalt, with the empty streets black and shining as ripe olives. I see it — by this time, I become maudlin with nostalgia — even with its gray mounds of crusted snow, its little Appalachians of ice along the pavements. So I go back. And it is always better than I thought it would be.

I suppose that is the thing about New York. It is always a little more than you had hoped for. Each day, there, is so definitely a new day. "Now we'll start over," it seems to say every morning, "and come on, let's hurry like anything."

London is satisfied, Paris is resigned, but New York is always hopeful. Always it believes that something good is about to come off, and it must hurry to meet it. There is excitement ever running its streets. Each day, as you go out, you feel the little nervous quiver that is yours when you sit in the theater just before the curtain rises. Other places may give you a sweet and soothing sense of level; but in New York there is always the feeling of "Something's going to happen." It isn't peace. But, you know, you do get used to peace, and so quickly. And you never get used to New York.

It Couldn't Have Happened to a Nicer Guy:

Abu Musab Al Zarqawi, head of Al Qaeda in Iraq and a terrorist leader responsible for thousands of deaths in Iraq, Jordan and elsewhere, is confirmed killed in a U.S. airstrike.

Law School Grade Inflation:

My post below led some commenters to ask whether there's been grade inflation in law school grades. A few related answers.

1. When I was a UCLA Law School student in 1989-92, our curve was 20% As, 40% Bs, and 40% Cs or below (the "below" grades were optional and very rare) in each course. In the mid-90s, we shifted to 20% As, 60% Bs, and 20% Cs or below. Recently, we shifted to a 25-29% As, 41-52% B/B+s, 18-22% B-s, and 5-8% Cs or below for first year classes, and 23-27% As, 50-60% B/B+s, 17-23% B-s, and 0-10% Cs or below for second and third year classes (basically a 3.2 median, slightly below a B+). So our median grades have been increasing, from B- to B to B+ish, and our Cs have been declining.

2. On the other hand, the quality of our incoming students, at least as measured by the LSAT (which to my knowledge has not had any grade inflation of its own), has been increasing, too: In 1998, the first year in which U.S. News & World Report reported the 25th and 75th percentile LSAT scores, UCLA's range was 159-165; this year it was 162-169 (on a 120-180 scale). This is part of a broader trend that is seen even at higher-ranked schools; Columbia was ranked #4 both years, but its LSAT 25-75 range rose from 165-171 to 168-173. Should this justify a corresponding rise in law school grades? I don't know how to answer that.

3. Also, for whatever it's worth, incoming UCLA law students, on average, had an A- average at their undergraduate schools (the 25-75 percentile range reported this year in U.S. News was 3.51-3.82). Back when we gave lots of Cs, lots of students would get their first Cs of their lives at UCLA Law School. Is that the way things should be? Again, I don't know how to answer that.

4. As best I can tell, the increases in our grades have been driven by one main factor: The increases in grades at other schools. We shifted to a B median in the mid-90s because we noticed that most Top 20 schools had a B median. Our B- students were roughly comparable in class rank to B students at peer schools, but they looked worse to employers who weren't that familiar with the UCLA system. (An employer could of course look closely at the descriptions of the grading systems and figure out the difference, but we were afraid that many employers wouldn't look that closely.)

We shifted to a B+ median recently because we noticed that most Top 20 schools had done the same. I'm pretty confident that we were at the trailing edge of the change, not the leading edge. We didn't want to increase our grades beyond what others were doing, but we also didn't want our students to be at a disadvantage. This sort of behavior may be bad in some overall sense. But it is sensible for a school that's trying not to leave its students unfairly disadvantaged. If someone suggested some multi-law-school grading reform, I might endorse it (though I can't speak to any antitrust law questions this might or might not raise). But so long as each school has to make these decisions by itself, I think we did what we had to do.

5. Though I'm not wild about grade inflation, I should note that a B+ median still leaves plenty of gradations between students, especially when one averages together the grades in many classes. If everyone got A+s or As (which is more or less the system at Yale, with what I'm told is roughly 20-30% of each course getting Hs, and the rest getting Ps with the exception of a very few LPs and fails), that might pose more of a problem. But a system with plenty of A+s, As, A-s, B+s, Bs, and B-s, and occasional Cs (with some required in the first year) adequately conveys to employers which students tend to be better and which tend to be worse. And to the extent that such a system causes confusion when employers compare UCLA students from one grading system with UCLA students from another (which tends to be rare, since most students are competing against others who graduate the same year or shortly before or after), maintaining the same median as other schools diminishes confusion when employers compare UCLA students with students from other schools.

6. One possible solution to this problem is to report class rank, something that I'm told virtually no schools systematically do these days (though when it comes to top graduates who are applying for clerkships or teaching jobs, many schools do in fact report informal ranks). But for complex reasons — which may be caused partly by excessive egalitarianism, and partly by a plausible (though not obviously right) concern that the difference between 60th percentile and 40th percentile probably looks bigger than it should, and that a GPA may do a better job of indicating how slight that difference is — there's been little move to return to the class rank system.


Wednesday, June 7, 2006

Exams Graded!

Woohoo! Plus this let me do one of my favorite things, which is to call to congratulate the students who've gotten an A or an A+ (generally 12-15% of the class, under our new grading system).

Note to other professors who call to congratulate students, based on experience gained the hard way: If you don't reach the student, and leave a generic message that doesn't mention the grade (particularly important if it's a shared voice-mail or answering machine), say something like "It's no big deal; nothing to worry about; just call me back please at your convenience." A student who just gets an unadorned "please call your professor" message will FREAK OUT.

Dorothy Parker on insomnia:

She died 39 years ago today, as one reader reminded me. This is from an amusing little essay called "The Little Hours" on trying to get to sleep when you're wide awake at 4:20 a.m.:

And what suggestion has anyone to murmur as to how I am going to drift lightly back to slumber? . . . I really can't be expected to drop everything and start counting sheep, at my age. I hate sheep. Untender it may be in me, but all my life I've hated sheep. It amounts to a phobia, the way I hate them. I can tell the minute there's one in the room. They needn't think that I am going to lie here in the dark and count their unpleasant little faces for them; I wouldn't do it if I didn't fall asleep again until the middle of next August. Suppose they never get counted -- what's the worst that can happen? If the number of imaginary sheep in this world remains a matter of guesswork, who is richer or poorer for it? No, sir; I'm not their scorekeeper. Let them count themselves, if they're so crazy mad after mathematics. Let them do their own dirty work. Coming around here, at this time of day, and asking me to count them! And not even real sheep, at that. Why, it's the most preposterous thing I ever heard in my life.

Podcast on Colorado firearms preemption case:

On Monday, the Colorado Supreme Court announced that it was divided 3-3 on the appeal of a case involving Denver's challenge to the Colorado state law preempting some of Denver's anti-gun laws. As a result, the decision of the Denver District Judge stands: Denver may retain some of the gun laws (the "assault weapons" ban, the "Saturday Night Special ban," and the near-prohibition on the open carrying of firearms) which had been preempted by state law. The tie vote existed because after the retirement of Justice Rebecca Love Kourlis, the court vacancy was filled by Allison Eid. As Solicitor General for Colorado, Eid had argued the case on behalf of Colorado (and against the City of Denver) during oral argument in December, so Justice Eid recused herself from the decision of the case.

In a new podcast on, I explain the decision, and its ramifications. An Independence Institute Issue Backgrounder I wrote in 1999 explains the need for a Colorado preemption law. A 2003 Backgrounder details the limited preemption law (much less sweeping than similar laws in the overwhelming majority of states) which Colorado was about to enact. An Issue Paper from 1993 describes Denver's very repressive laws regarding juveniles and guns. (The preemption of some of the Denver laws, such as the ban on juveniles even touching guns under adult supervision, was upheld by the district court; one item raised in the Issue Paper--the overly broad definition of "weapon" was fixed at the behest of City Councilman Tim Sandos before the ordinance was enacted.) An op-ed by Donald DeKieffer illustrates the absurdity of Denver's juvenile laws.

Holocaust-Denying Atheist Candidate for Alabama Attorney General Gets 43.5% of the Primary Vote:

That's the remarkable Larry Darby, who was seeking the Democratic nomination; the election results are here. I don't know whether I should (1) be sad that 160,000+ voters were willing to vote for a Holocaust denier, (2) be happy that they were willing to set aside the candidate's atheism (I doubt that many voted for him precisely because he's an atheist), (3) assume that few voters were paying much attention to more than a tiny handful of issues in the race, or (4) just be glad that he didn't win.

UPDATE: An interesting analysis of the race based on county-by-county results, in a comment to a Concurring Opinions post.

The Law and Economics of Superman:

Co-blogger Tyler Cowen asks:

Did you know about the new summer Superman film?

Let's say we had an altruistic and incorruptible Superman, how should he allocate his efforts to improve the macroeconomy? He is really strong, he can fly very fast, leap tall buildings at a single bound, has incredible vision, and somehow he is immune from Einstein's theory of relativity and time dilation at near-light speeds (his most impressive achievement, if you ask me).

Yes he should save the world from evil madmen, but fighting ordinary crime hardly appears worth his trouble....

Tyler offers a few suggestions on what Superman should do to increase the social returns on his investments of time and energy. On a (slightly) less unserious note, I have to admit that one reason why I never much liked the Superman franchise is that the character seems to misallocate his efforts so severely! If you had his powers, would you spend your time chasing a third-rate villain like Lex Luthor (even if played by the great Gene Hackman)? Why not instead overthrow Kim Jong Il or stop the genocide in Darfur? Perhaps the first thing our hypothetical Superman should do is take one of Tyler's economics classes and learn about the concept of opportunity cost. If a Hollywood studio offers me enough money to offset MY opportunity costs, I would be happy to write that up as the screenplay for the next Superman movie!

UPDATE: Several commenters question my assertion that Lex Luthor is unworthy of Superman's attention, claiming that it is important to foil Luthor's plans to take over the world. I remain unpersuaded. Luthor's harebrained schemes for world domination are doomed to failure not only because of their inherent implausibility, but also because he uses morons for henchmen (e.g. - Otis, his right-hand man) and repeatedly ignores the helpful advice of the Evil Overlord List. Assuming that Luthor poses any real threat at all, it could probably be handled even by the dubiously competent Department of Homeland Security (despite its own serious resource allocation problems). A rational Superman committed to maximizing his contribution to the social welfare function should be going after bigger fish. He needs to take Tyler's class right away!

Rock, Paper, Scissors as Alternative Dispute Resolution:

An order from U.S. District Court Judge Gregory Presnell in Avista Management, Inc. v. Wausau Underwriters Insurance Co. (paragraph breaks added):

This matter comes before the Court on Plaintiff’s Motion to designate location of a Rule 30(b)(6) deposition (Doc. 105). Upon consideration of the Motion -– the latest in a series of Gordian knots that the parties have been unable to untangle without enlisting the assistance of the federal courts -– it is ORDERED that said Motion is DENIED.

Instead, the Court will fashion a new form of alternative dispute resolution, to wit: at 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness.

At that time and location, counsel shall engage in one (1) game of “rock, paper, scissors.” The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006. If either party disputes the outcome of this engagement, an appeal may be filed and a hearing will be held at 8:30 A.M. on Friday, July 7, 2006 before the undersigned in Courtroom 3, George C. Young United States Courthouse and Federal Building.

Incidentally, such random (or close to random) decisionmaking isn't entirely novel to the legal system: In some courts, the chief judge is selected from among the court's members based on seniority and related factors, and when there's a tie in those factors, the tie is broken by a coin flip. Tied elections are sometimes resolved the same way; in Nevada, they may also sometimes resolved by drawing cards (no joke).

On the other hand, in In re Brown, 662 N.W.2d 733 (Mich. 2003), the Michigan Supreme Court censured a judge for using a coin flip to make a substantive decision (item numbers omitted):

[The judge] encouraged the parties to resolve the matter themselves, but when they were unable to agree and where each side had equally compelling arguments as to why the children should be with one party on Christmas day instead of Christmas Eve she told the parties it was nothing more than a coin flip. Instead of just issuing a decision regarding the dispute, Respondent stated that she would decide it by the flip of a coin.

The court ordered the judge to "[r]efrain from resolving any disputed issue by the flip of a coin." (Of course, even if coin flips are improper for making substantive decisions, they may still be proper for relatively minor procedural matters such as the location of depositions.)

Thanks to Diane Knox for the pointer; she also reports that a fellow lawyer in Miami says that "the use of rock/paper/scissors (a.k.a. roshambo) has become such a prevalent means of resolving discovery disputes that some local law firms now take a student's roshambo skills into consideration when making hiring decisions." I can't claim great confidence in the "now take skills into consideration" assertion, but, as we say in Russian, "I'm selling it to you for what I paid for it."

UPDATE: OK, this I can't endorse -- "A jury unable to decide on a verdict tossed a coin last week to convict a man of murder." The procedure quite properly "prompt[ed the] judge to declare a mistrial."

Andrew Sullivan "podfisks" President Bush's

rather lackluster speech yesterday in defense of the federal marriage amendment. Listen to the whole thing.

As a respite from the misbegotten federal marriage amendment

I wandered into a bookstore in D.C. yesterday and picked up a copy of The Portable Dorothy Parker for $17. Parker is the clever writer/witticist who was active mostly in the 1920s and 1930s. She wrote poems, short stories, reviews, and essays.

From "Fulfillment":

For this my mother wrapped me warm,
And called me home against the storm,
And coaxed my infant nights to quiet,
And gave me roughage in my diet,
And tucked me in my bed at eight,
And clipped my hair, and marked my weight,
And watched me as I sat and stood:
That I might grow to womanhood
To hear a whistle and drop my wits
And break my heart to clattering bits.

Related Posts (on one page):

  1. Dorothy Parker on New York:
  2. Dorothy Parker on insomnia:
  3. As a respite from the misbegotten federal marriage amendment
Will Justice Prosecute Journalists?

That was one of the questions in a Senate Judiciary Committee hearing yesterday at which Deputy U.S. Attorney Matthew W. Friedrich testified. The Washington Post reports:

Friedrich, in his opening statement, confirmed that the Justice Department was prepared to investigate and prosecute leaks, but referred to Attorney General Alberto R. Gonzales's recent statement that the "primary focus is on the leakers of classified information, as opposed to the press."

When Friedrich confirmed that the department thought that journalists or "anyone" could be prosecuted under the Espionage Act for publishing classified information, Specter asked specifically about whether the law could be applied to reporter James Risen of the New York Times, the newspaper that published an article in December about the National Security Agency's warrantless surveillance program.

"Obviously, Senator, I can't comment as to any particular case or specific matter," Friedrich said. He added that espionage laws "do not exempt . . . any class of professional, including reporters, from their reach."

Specter then asked, without specifying a particular case, whether the department, under Gonzales or former attorney general John D. Ashcroft, ever considered prosecuting a newspaper or reporter for publishing leaked classified information.

"I don't think it would be appropriate for me to give an indication one way or another, and I hope people don't read anything into my answer one way or another," Friedrich said. But after a short lecture from Specter, he added that it was his "understanding" that there were historical examples of officials considering whether to prosecute journalists.

Nuke Power Catch-22:

One criticism of nuclear power is that new facilities are too expensive to build. While heavily regulated, and fiercely opposed in the permitting process, nuclear facilities are also heavily subsidized. A new study also suggests nuclear power plants could be too costly to close. From today's New York Times:

Closing the Indian Point nuclear reactors would make electricity more expensive, leave New York more vulnerable to natural gas shortages and add to pollution that causes global warming, according to a report released on Tuesday by a committee of the National Academy of Sciences.

The committee said that there were no insurmountable technical obstacles to closing the plant. But it asserted that electric demand was growing so fast in the region, and building power plants was so difficult, that simply meeting power needs during peak periods would be a challenge even if the reactors stayed in operation. . . .

"While the committee is optimistic that technical solutions do exist for the replacement of Indian Point, it is considerably less confident that the necessary political, regulatory, financial and institutional mechanisms are in place to facilitate the timely implementation of these replacement options," the report said.

More on RFK Jr. & Election 2004:

Robert F. Kennedy Jr. defends his Rolling Stone article, and Salon's Farhad Manjoo responds here. Also Salon's Joan Walsh answers those who've criticized the magazine for publishing Manjoo's article in the first place.

Meanwhile, Democratic pollster Mark Blumenthal dissects Kennedy's reliance upon exit poll data here, and finds it wanting.

While it covers many topics involving alleged suppression and fraud in Ohio, the article disappoints in its discussion of the exit poll controversy, because on that aspect of the controversy Kennedy manages to dredge up nearly every long-ago discredited distortion or half-truth on this subject without any acknowledgement of contrary arguments or the weaknesses in his argument. It is as if the exit poll debate of the last eighteen months never happened.
Blumenthal promises to post Part II of his critique shortly.

UPDATE: RCP's Tom Bevan weighs in on RFK Jr's "incredble shrinking credibility":

Last Friday RFK, Jr. asserted on CNN, "There's no legitimate dispute that there was a massive, concerted, deliberate effort by high level-Republican Party officials to fix the election in Ohio. And the press has not covered this issue." This is a grotesque lie unsupported by even a shred of credible evidence, yet Kennedy is out on national cable television spewing it as gospel truth.

Class VP arrested after coming late to graduation: I don't often read stories about my high school, Thornton Fractional Township High School North ("Home of the Meteors!" AKA "T.F. North") in Calumet City, Illinois, but this one made the Best of the Web. From the Chicago Sun-Times:
For Maquisha Cosey, vice president of Thornton Fractional North High School's class of 2006, graduation day is not one she'll soon forget.

And not for any of the sentimental reasons.

It's the day that Cosey, who was listed on Friday's graduation program as the leader of the pledge to the flag, was arrested and charged with criminal trespass and disorderly conduct after trying to participate in the ceremony despite being denied entry for being late.

"I know that this shouldn't have happened to me. It shouldn't happen to anyone," says the graduate.

Instead of celebrating her big day, she spent the evening at the Calumet City police station being fingerprinted and photographed because Principal Dwayne E. Evans, the Cosey family claims, was angry someone had let her into the ceremony after the doors were locked.

It was also her 18th birthday.

"I don't have all the facts yet," District 215 Supt. Robert Wilhite said Saturday. "I have a meeting scheduled for Monday morning with the staff of Thornton North to sort this all out."

Wilhite says he was told Cosey was arrested for "screaming and yelling in the gymnasium long after the graduation was all over." Court papers, with the principal listed as the complainant, allege she "knowingly and intentionally acted in an unreasonable manner and provoke[d] a breach of the peace by continually yelling and screaming and threatening the school staff during the graduation proceedings."

But Cosey, a member of student government who says she never had a discipline issue in four years of high school, denies that, saying, "That's just not my character."

Evans could not be reached for comment.

It all started when Cosey arrived at the high school in Calumet City two minutes before doors were scheduled to be locked. Invitations had clearly stated no one would be allowed in to the 6 p.m. ceremony after 5:55 p.m., and students had been instructed to arrive at 5 p.m.

That Cosey was late, she and her parents aren't disputing. . . .
There's more here.

Update: Tardy Cal City grad may not face charges

Here is some background on Calumet City from Wikipedia. Though it fails to mention its notorious past, it does offer this:

Calumet City is featured or mentioned in a number of major movies. John Belushi's "Joliet Jake" character from The Blues Brothers was born in Calumet City. In film Silence of the Lambs, Buffalo Bill is thought to be hiding in Calumet City, when he is actually in Belvedere, Ohio.
The Encyclopedia of Chicago has much more information:
Cook County, 19 miles S of the Loop. Calumet City is located across the southeast boundary of the city of Chicago at the state line between 143rd Street and 163rd Street, east of the Bishop Ford Freeway. It is north of Lansing and southeast of Dolton. Originally known as West Hammond, Calumet City shares State Line Road with Hammond.

Founded in 1893 when the population consisted mainly of German Lutheran farmers, the early community depended heavily on the factories and commerce of Hammond. The 1900 population of 2,935 grewto 7,492 by 1920. By that time, Poles outnumbered Germans, with residents of Irish ancestry in third place. Poles were so politically powerful in the community that a Polish American was elected village president in 1900 and in 1902 one municipal party was able to field a slate made up completely of candidates with Polish names.

When Indiana went dry in 1916, West Hammond became an attractive watering hole for the drinkers of northwest Indiana. Bootleggers like Al Capone built on this base when national Prohibition came into play, and the town of West Hammond, just 30 minutes from downtown Chicago, gained a reputation as a “Sin City,” where gambling, prostitution, and illegal booze joints created a pre–Las Vegas strip on State Street. Hardworking residents were so dismayed by the town's bad reputation that they voted in 1923 to change the name to Calumet City. Despite the city's notoriety, the population grew from 7,500 to 12,300 during the 1920s, reaching 25,000 in 1960, 32,956 in 1970, and 39,697 in 1980. Since the 1920s various mayors and citizen groups battled to shut down the State Street bars with varying success, until Mayor Jerry Genova's efforts in the 1990s seemed to bring that chapter of the city's history to an end.

In 1966 investors spent $35 million and built the 80-store River Oaks Shopping Center. The center's excellent location on U.S. Route 6, a few miles from the Bishop Ford Freeway, brought customers from Chicago's South Side, and a renovation in the early 1990s (completely enclosing the previously open-air mall) maintained its drawing power.

In 2000 Calumet City's population was 39,071, with 54 percent African American and 11 percent Hispanic. Thirteen percent of Calumet City residents reported Polish ancestry, with smaller percentages of German, Irish, and Italian ancestry.


Tuesday, June 6, 2006

Video of panel on marriage amendment now available online:

Yesterday C-SPAN aired a panel discussion on the federal marriage amendment sponsored by Cato and the Center for American Progress. The video of that discussion is now available online here.

Panelists were Prof. Michael Seidman, Bruce Fein, Mark Agrast, and me. Although all of us opposed the amendment, you'll see that we had somewhat different reasons for doing so. The program lasted about an hour and a half, with me as the first speaker. If you have the time to watch, the exchange after the initial presentations from each panelist turned out to be unexpectedly lively.

The New York Times and the federal marriage amendment:

Today's New York Times includes a story on the proposed federal amendment banning same-sex marriage. The story contains the following paragraph, describing the effect of the proposed amendment:

His [President Bush's] speech came as the Senate began to debate the proposed amendment, which would define marriage as being between a man and a woman and would prohibit judges from requiring states to grant same-sex couples the legal benefits of marriage.

This is a common description of the effect of the amendment, and it has appeared in one form or another throughout much of the news media over the past few days. Nevertheless, while it's true that the amendment would at a minimum "define marriage as being between a man and a woman" and "would prohibit judges from requiring states to grant same-sex couples the legal benefits of marriage," this description implies that that's all the amendment would do. Thus, it essentially accepts the interpretation offered by some supporters of the amendment (like Senate sponsor Wayne Allard) in their effort to make it seem as narrow and reasonable as possible. It unquestioningly accepts the controversial view that this amendment is basically limited to dealing with judicial activism.

However, there's an active debate over what additional effects the amendment might have. Those of us who oppose the amendment are quite concerned that it would do far more than define marriage and limit the power of judges. As I've argued, for example, its effect may also be to ban the legislative enactment of civil unions and make other legislatively created statuses for same-sex couples unenforceable. For details of the argument about why the amendment might be interpreted in this way, see the last section of my recent Cato piece on the amendment.

But the point here is not to establish whether I'm right or wrong about the possible effects of this amendment. The point is that the news media has a responsibility to communicate that the amendment may have broader effects than is currently claimed by its congressional proponents. The media doesn't have to resolve the interpretive dispute, of course, but it should at least make note of the debate, and give somewhere in descriptions of the amendment some indication that it may have effects more aggressive than the two noted in this and other stories. Not every reference to the amendment needs to note these possible additional effects (e.g., it's acceptable shorthand generally to refer to the amendment as "banning same-sex marriage"), but the possible additional effects should at least be mentioned in substantive stories about the amendment, like the one quoted above. The New York Times and other media who aspire to be fair, balanced, and accurate in reporting the news owe us better.

Media Privileges for Bloggers -- Two Victories Over the Last Several Months:

Two weeks ago, the California Court of Appeal held that bloggers were generally entitled to the journalist's privilege under California law, just as mainstream media writers are. Few people mentioned that six months before that, the Federal Elections Commission also held that bloggers were entitled to the media exemption from most federal campaign spending regulations, just as mainstream media organizations are. Since two incidents are officially A Trend — not such a facetious assertion when it comes to law, where courts and other legal institutions take even nonbinding precedents seriously — it might be helpful to make a few points about the two items taken together.

1. Extraconstitutional speech protections. Since Reno v. ACLU (1997), it has been clear that the First Amendment covers Internet speakers as much as newspapers and other print media. What's more, the First Amendment has long covered nonprofessional speakers, such as street-corner leafletters.

The question now isn't whether bloggers are entitled to First Amendment protections; they are. Rather, it's whether bloggers are entitled to additional protections, beyond what the First Amendment requires. The First Amendment either secures no journalist's privilege, or a relatively limited one. (The matter isn't squarely settled in the courts.) But many states do provide a journalist's privilege, often a broad one.

The First Amendment lets the government restrict election-related speech by corporations; but election laws generally provide an exemption for media corporations. The First Amendment allows libel law. But many states let certain publications limit their libel liability by promptly publishing a retraction. The question is whether these statutory protections cover bloggers as well as traditional media.

2. A lot depends on the words of the statutes. Because we're dealing with statutory protections (and, in the case of the California journalist's privilege, a detailed state constitutional protections), rather than with judge-made rules developed under the First Amendment, the words of the particular statute matter a lot. For instance, if a statute covers "a reporter or other person who is involved in the gathering or preparation of news for broadcast or publication," that clearly covers bloggers, who are publishing their works. ("Publication" isn't limited to print publication.) On the other extreme, if a statute limits itself to publications that have "a paid circulation," it's hard to fit bloggers within that.

Both the FEC decision and the California Court of Appeal decision involved provisions — which are quite common — that cover any "newspaper, magazine, or other periodical publication." The FEC decision concluded that blogs should be covered because they are online equivalents of newspapers, magazines, and periodicals. The California Court of Appeal decision held that blogs should be covered because they are themselves "periodical publication[s]," which are literally covered by the terms of the California journalist's privilege; it also suggested that blogs might be magazines.

These decisions are likely to influence other courts to likewise read "newspaper, magazine, or other periodical publication" provisions to cover blogs. But the matter might be different if the relevant statute is expressly limited, whether to publications that have a paid circulations or to newspapers, to the exclusion even of traditional media such as magazines.

3. Yet much depends on whether courts find online media valuable. So I stressed the importance of the provision's wording; but there's also more to it than wording. Many provisions are ambiguous; "periodical" itself might be read as not covering blogs, and whether blogs are the online equivalent of magazines is a judgment call.

When a statute is unclear, the courts have room to make policy judgments — in this case, a judgment about whether periodicals are worthy, and deserving of the extraconstitutional speech protections, or whether they should be relegated to the same status as books, personal letters, leaflets, and other media that the statutes don't cover. (Remember that while the First Amendment may protect all those media, without leaving it to courts to decide which are worthy and which aren't, we're talking here about statutory protections that go beyond what the First Amendment requires.)

The FEC decision and the California Court of Appeal case both point that blogs really are important sources of information — I would say that they're similar to traditional magazines, in that they focus on often opinionated news analysis — and the California Court of Appeal decision expressly rejects various arguments that blogs should be seen as somehow less worthy. Those are likely to be influential precedents for other courts and agencies.

4. Medium-specific privileges are probably constitutional. Finally, note that, if a statute doesn't cover blogs — for instance, because it's limited to publications with a paid general circulation, or it's limited to newspapers — there's probably no constitutional objection to this. (The matter might be different if the dividing line turns on the viewpoint of the speech, or even the content, though that's not completely clear.)

Remember that in these cases the legislature is offering extra protection beyond what the First Amendment requires. In the process, the legislature is sacrificing some government interests that would otherwise justify burdens on speech or newsgathering (for instance, the interest in gathering more evidence for court proceedings, or the interest in compensating victims of constitutionally unprotected libel). Most court decisions that have considered such medium-specific laws take the view that this sort of discrimination is a legitimate way for the legislature to try to get the most (constitutionally unmandated) extra speech protection while at the same time making the least sacrifice of the countervailing government interests.

One case in point, by the way, is an important statute that provides medium-specific privileges to online speakers — including many bloggers — that are not offered to newspapers: 47 U.S.C. § 230, which immunizes online service and content providers from liability for material that others post to their sites. That's what keeps me from being liable for what commenters post, as well as keeping AOL from being liable for what its users post.

Newspapers don't get this protection; for instance, they're potentially liable for defamation in letters to the editor. Even bookstores might theoretically be held liable for defamatory and otherwise constitutionally unprotected tortious speech in books that they distribute, so long as they've been put on notice that the book is likely to be legally actionable. Not so with bloggers and with service providers, who are statutorily immune.

Whether or not this different treatment is ethically and pragmatically sound -- one pragmatic problem is the difficulty of drawing lines between, for instance, newspapers and magazines, or among,,, and -- it's generally seen as constitutional. Likewise, laws that give preferences to paper media and not online media, or professional media and not amateur media, are probably constitutional as well (with the possible exception of speaker-based exemptions from campaign finance law, which probably have to be justified under strict scrutiny, and which will often fail such scrutiny).

* * *

In any case, those are just a few thoughts about this important topic — I hope to soon finish a law review article on the subject, which should discuss all this in much more detail.

Kelo Evictions:

The indefatigable Tom Blumer continues to follow the climax of the booting of the Kelo plaintiffs from their homes. Four of the six residents settled this past week leaving two final residents against whom eviction proceedings continue. Scott Bullock of IJ is continuing to exhaust the remedies available to the homeowners. There's a lot over at Bizzyblog, so rather than trying to summarize it all I'll just refer you there. This is the most exhaustive roundup of news I have seen on the waning days of the conflict.

The Founding Fathers and Public Education:

A commenter on a recent thread writes that, "When the founding fathers wrote the Bill of Rights, they never envisioned that state actors would be running schools."

I'm no expert at all on the subject, but I'm a bit skeptical about this assertion. The Public Land Ordinance of 1785 provided that "There shall be reserved the lot N 16, of every township, for the maintenance of public schools, within the said township." The Northwest Ordinance (1787) said that "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Jefferson in 1779 proposed a public education system for Virginia, though such a system was ultimately not adopted until considerably later. (The University of Virginia was founded in 1819.) In 1780, the Virginia legislature donated land seized from British loyalists for the purposes of establishing a "publick school."

The Massachusetts Constitution of 1780 said that "it shall be the duty of legislatures and magistrates, in all future periods of this commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them; especially the university at Cambridge, public schools and grammar schools in the towns." The 1792 Charter of Yale College provided that the Governor and several other government officials would sit ex officio as part of Yale's board of trustees. The North Carolina Constitution of 1776 provided that "a school or schools shall be established by the Legislature, for the convenient instruction of youth, with such salaries to the masters, paid by the public, as may enable them to instruct at low prices; and all useful learning shall be duly encouraged, and promoted, in one or more universities." The University of North Carolina was chartered pursuant to this in 1789, and apparently started operating in 1795.

Now I don't know the precise role of state governments in education during the early Republic -- how extensively they actually acted on the education-should-be-supported sentiments, and on the extent to which the action involved control over the institutions, rather than just the provision of money or land to entirely privately run charitable schooling organizations. I also don't know about the extent to which the Framing generation would have seen school officials, even officials of government-run schools, as "state actors" in the modern sense of the word. (Note this 1783 Virginia law that treated trustees of a state-created school that used state-provided property as a sort of public officer, obligated to take an oath of office, though also note that during that era corporations, whether business or nonprofit, were always chartered by special legislative act.) I suspect some readers of the blog do know this, though, and I'd love to see their comments on it.

Nonetheless, the evidence I point to -- and other similar materials -- suggests that the concept of government-supported, and perhaps even government-run, schools wasn't alien to the Framers of the Constitution and the Bill of Rights.

D-Day was almost a German holiday:

During World War II, the importance of an armed citizenry for defense against foreign tyranny was once again confirmed, as Dan Gifford and I suggested in a 1994 column for the D-Day anniversary. In another column, "Why D-Day Mattered," I examine the various hypotheticals about D-Day, such as the consequences of a defeat of the invasion, or of an invasion in 1943.

British and Canadian Boycotts of Israel:

Cathy Young writes about them, and about the American Association of University Professors' silence on the British academics' boycott.

New Jersey ACLU Defending Student's Right to Sing Religious Song at Talent Show:

The brief is here. I agree entirely with the bottom line, and almost entirely with the analysis.

Thanks to Craig Oren for the pointer; a news account asserts that the brief was just filed.


Monday, June 5, 2006

Town-Gown Conflicts over Property Use and Eminent Domain:

Notre Dame property law professor Nicole Garnett has an interesting post on the town-gown conflict over neighborhood redevelopment in her home base of South Bend, Indiana. Unlike Columbia, Notre Dame (as far as I know) is not threatening to use eminent domain. Nonetheless, the dispute illustrates the ways in which efforts by universities to transform local neighborhoods (as opposed to merely acquire individual property tracts) often stem from the self-interest of the academic community rather than from efforts to promote education and research, the major public goods provided by universities. In this case, the university people would like to turn the neighborhood into a "new-urbanist enclave," while the "mostly working class and African-American" townies tend to be opposed.

I like new urbanist enclaves as much as the next law professor and I have no objection to Notre Dame's plan as described by Nicole. Maybe that's why I'm an academic, not a townie! But I see no reason why university efforts to cater to the neighborhood lifestyle preferences of academics and students should be supported through the use of eminent domain. The case for eminent domain is especially weak in situations where university "elites" (to borrow Nicole's terminology) are trying to impose their preferences at the expense of communities far less affluent than they are themselves. Whatever the merits of using government power to redistribute wealth from rich to poor, I see no reason to support Robin Hood in Reverse condemnations.

To be sure, the opportunity to live in a "new urbanist enclave" may attract some professors to Notre Dame who might otherwise hesitate to take up residence in South Bend, and for that reason promote research and/or education. However, an academic good enough to be hired by Notre Dame is also likely to have offers elsewhere, and there is no reason to believe that the overall level of public good provision by universities will diminish if he goes to another school. It is also unlikely that any significant number of potential academics will choose nonacademic careers merely because some schools are unable to reshape the neighbohoods around them to the would-be professors' liking.

Is June 6, 2006 666?

No, according to this post by Michael Covington. (LvSA)

Universities, Public Benefits, and Eminent Domain:

Both Columbia President Lee Bollinger and some of the commenters to my previous post defend the use of eminent domain to transfer property to universities on the ground that universities create "public benefits." While universities do provide important benefits to society, this does not justify allowing them to condemn property.

Most of the benefits provided by universities are "private goods" that are fully captured by their students and faculty. For example, going to college greatly increases a student's earning prospects, but that student will himself capture the benefits. Basic economics shows that there is no need for government subsidies for these kinds of private goods.

Universities do also provide some "public goods" - benefits to society that the university, its faculty, and its students cannot fully capture. Perhaps the most important is basic scientific research. Another might be educating underprivileged students, though this is less clearly a public good than basic research is, since most of the benefits are captured by the students themselves. However, both research and student tuition are already heavily subsidized by the government through a wide variety of programs. For extensive data, see this recent book by economist Richard Vedder. There is no reason to believe that they require the additional subsidy provided by the use of eminent domain. Even if additional public subsidy is warranted, the best way to provide it is to allocate additional funds earmarked for research or education, not allow universities to use eminent domain. Condemnation of property is rarely if ever actually useful for the purposes of advancing research or educating poor students. In general, research can be undertaken and students educated just as well on voluntarily purchased land. Education and research can be conducted in a wide variety of locations and thus are not vulnerable to the "holdout" problems usually cited as a justification for condemning property. Even if holdouts do become an issue, universities can and do use secret purchase and other market-based methods to get around them without resorting to eminent domain(see Point 2 in my earlier post on Columbia).

Obviously, students and faculty sometimes can benefit from acquiring land through condemnation. But the benefits in question (primarily esthetic and lifestyle-related) are not public goods that should be subsidized by the state. If universities wish to pursue these goals by acquiring additional land, they should do it by competing with other potential buyers in the real estate market.

Finally, a possible argument for allowing universities to use eminent domain is that they supposedly act only for the public interest. As President Bollinger puts it, "We are not a profit-making institution looking out for our own advantage," he said. "We are trying to do things that help the world more broadly." Unfortunately, this claim is at best a half-truth. Universities do sometimes "help the world more broadly," but their policies are also heavily influenced by the self-interest of faculty, administrators, and (to a lesser degree) students. Anyone familiar with academic politics knows that self-interest plays a major role. The mere fact that a university is a nonprofit entity does not prove that it acts only out of altruism. Self-interested behavior by universities is often perfectly legitimate, but it does undercut claims that universities should be allowed to use eminent domain because they do not "look out for [their] own advantage" and only "do things that help the world more broadly."

Even under a narrow definition of public use, condemnations that transfer property to public universities would be constitutional, since government ownership of land is automatically considered a "public use" under the federal Takings Clause and most state constitutions. Condemnations for private universities are much more legally problematic, and I would argue that they violate the Fifth Amendment and many state constitutions as well. But whatever its legal status, taking property for the benefit of universities is both unnecessary and unjust.

UPDATE: Another possible "public" benefit of universities is that they may improve the local economy. I did not address this in the original post because it is not a benefit specific to universities, but can be claimed for virtually any enterprise. However, to the the extent that this argument is used to justify using eminent domain to transfer property to universities, it is no different from the arguments used to justify condemning property for the benefit of private commercial developers. I criticize such claims in great detail here and here.

UPDATE #2: I was perhaps less clear than I should have been about what it means for a student to be able to "capture" the benefits of his own education. So long as the societal benefits created by it are reflected in increased income for the student, he or she can be said to capture those benefits and government subsizidation is therefore unnecessary. For example, it is certainly true that more educated workers are more productive than less educated ones and this benefits the economy. But their higher productivity is reflected in higher pay, and so they "capture" the benefits. In any event, I should emphasize that even if government subsidization of higher education is desirable to a greater extent than I contend, it does not follow that such subsidies should take the form of allowing universities to acquire property through condemnation.


From an arbitrator's decision in Morgan Stanley v. Meow, claim no. FA0604000671304:

Respondent maintains that it is a cat, that is, a well-known carnivorous quadruped which has long been domesticated. However, it is equally well-known that the common cat, whose scientific name is Felis domesticus, cannot speak or read or write. Thus, a common cat could not have submitted the Response (or even have registered the disputed domain name). Therefore, either Respondent is a different species of cat, such as the one that stars in the motion picture “Cat From Outer Space,” or Respondent’s assertion regarding its being a cat is incorrect.

If Respondent is in fact a cat from outer space, then it should have so indicated in its reply, in order to avoid unnecessary perplexity by the Panel. Further, it should have explained why a cat from outer space would allow Mr. Woods to use the disputed domain name. In the absence of such an explanation, the Panel must conclude that, if Respondent is a cat from outer space, then it may have something to hide, and this is indicative of bad faith behavior.

On the other hand, if Respondent’s assertion regarding its being a cat is incorrect, then Respondent has undoubtedly attempted to mislead this Panel and has provided incorrect WHOIS information. Such behavior is indicative of bad faith. See Video Direct Distribs. Inc. v. Video Direct, Inc., FA 94724 (Nat. Arb. Forum June 5, 2000) (finding that the respondent acted in bad faith by providing incorrect information to the registrar regarding the owner of the registered name); see also Quixtar Invs., Inc. v. Smithberger, D2000-0138 (WIPO Apr. 19, 2000) (finding that use of false registration information constitutes bad faith).

Respondent cites Morgan Stanley v. Michael Woods, FA 604103 (Nat. Arb. Forum Jan. 16, 2005), in which the Panel found that Complainant had failed to prove bad faith registration and use. But that case must be distinguished from the present case, because in that case the Respondent was Mr. Woods, and not a cat or someone who has misled the Panel by pretending to be a cat.

The Panel finds that Respondent’s assertions that it is a cat provide sufficient evidence to conclude that the Respondent registered and is using the disputed domain name in bad faith. And this despite the fact that the Panel, unlike Queen Victoria, is amused.

Alito Opinion Draws Scalia Criticism: Over at my solo blog, I have a post up on today's opinion by Justice Alito, Zedner v. United States.
S.F. Chronicle on the Allegations About Congressional Candidate Pete McCloskey:

Here's an excerpt from yesterday's article, discussing tomorrow's primary:

Fiercely opinionated — his critics brand him anti-Semitic for praising the late Yasser Arafat and calling for a Palestinian homeland since the early 1970s — McCloskey can also gleefully poke fun at himself....

The Chronicle had earlier endorsed Rep. McCloskey.

Is the newspaper being quite candid with the readers here, and quite fair to Rep. McCloskey's critics? Of course anyone who brands a candidate anti-Semitic simply for praising Arafat and calling for a Palestinian homeland since the early 1970s is quite wrong, and such charges deserve to be rejected.

But Rep. McCloskey has done considerably more than this. In a speech to a Holocaust revisionist group, he has mentioned the "so-called Holocaust," and told them "I don't know whether you are right or wrong about the Holocaust" (which in retrospect he says was not "question[ing] the existence of the Holocaust," but rather merely "referr[ing] to a debate over the number of people killed," itself a staple of Holocaust revisionist arguments). When he praised Arafat, he did so at the same time as harshly criticizing Ariel Sharon, Menachem Begin, and Yitzhak Shamir; the allegation isn't simply that he praised Arafat, but that he was applying a double standard that favored the Palestinian leader over Israeli leaders. He'd also complained in 1982 that the Democratic Party was "in the hands of the Jewish lobby" because it had to "look quite often to Jewish money." And he called Israel "very much like Adolf Hitler's Germany" — which, in the view of some (such as me) betrays not just a serious lack of good judgment, but also a double standard under which the misconduct of Israel and Israelis is exaggerated, while the misconduct of Israel's enemies (and other nations) is downplayed or ignored.

Now perhaps even all this is not enough to show that Rep. McCloskey is anti-Semitic. But given these criticisms, is it really fair — and really a service to the newspaper's readers — to reduce the criticisms of him to "critics brand him anti-Semitic for praising the late Yasser Arafat and calling for a Palestinian homeland since the early 1970s," and completely ignore the other, more serious, charges?

Thanks to reader Michelle Dulak Thomson for the pointer.

UPDATE: Reader and fellow lawprof Frank Cross passes along this letter from journalist Mark Hertsgaard to the editor of the Nation magazine:

McCloskey did speak at the 2000 IHR convention, but he appears not to have said what Rafael Medoff and others allege, apparently basing their charge on an IHR newsletter report. But when I viewed a videotape of McCloskey's speech, I found no such wording. He told the delegates, "I may not agree with you about everything I've heard today," before he reiterated a core point of his speech--that the right for anyone to question what is said about the past is basic to freedom of thought in America. "I may not agree with you" is very different from "I don't know if you're right or wrong." McCloskey also devoted much of his speech to describing how Jews had long been discriminated against in the United States and abroad.

The IHR's misquotation of McCloskey may well have been the honest mistake of a volunteer note taker who heard what he wanted to hear and didn't go back and check the tape. McCloskey told me he certainly didn't question the existence of the Holocaust or that 6 million Jews were killed....

I don't know quite what to make of this. I've seen no such claims of misquotation by McCloskey himself or the McCloskey campaign. The campaign has on its own Web site a San Jose Mercury-News article that reports:
Campaign charges are exploding over a 2000 speech McCloskey gave to the controversial Institute for Historical Review, some of whose members question the severity of the Holocaust. McCloskey said at the time, "I don't know whether you are right or wrong about the Holocaust," and referred to the "so-called Holocaust."

McCloskey said Friday that he has never questioned the existence of the Holocaust, and the 2000 quote referred to a debate over the number of people killed.

If the Mercury-News is paraphrasing McCloskey right, this means that he's not denying the accuracy of the quote, and that he did question the number of Jews killed. (I noted the San Jose Mercury-News account of McCloskey's characterization of his quote in my initial post.) In a letter to the editor of the Institute for Historical Review's publication, McCloskey also says that "Numbers of the specific events can be challenged," though goes on to suggest "that the IHR would be far more effective if it were to concede that a holocaust did occur and focus on the ADL’s distortions of truth."

In any event, none of this, it seems to me, undermines my criticism of the San Francisco Chronicle article: Saying that McCloskey is being called "anti-Semitic" because of his two clearly non-anti-Semitic statements (his praise of Arafat and his support in the early 1970s for a Palestinian state), and ignoring what seem to be much more damning — though partly disputed by Mr. Hertsgaard — evidence, seems to be unfair to McCloskey's critics and a disservice to the newspaper's readers.

RFK Jr. on Election 2004:

Robert F. Kennedy Jr. has turned his attention from the environment to the 2004 election, with predictable results. In this Rolling Stone article, Kennedy argues that Republicans used dirty tricks to steal the 2004 presidential election. The article cites a wide variety of sources, but Kennedy's claim ultimately rests on the discrepancy between exit polls and the reported results — and that is a thin reed upon which to base his claim.

Election law experts are not convinced by Kennedy's account. Ohio State's Dan Tokaji is sympathetic to some of Kennedy's arguments, and believes the 2004 election offers many important lessons for election reform, but finds the argument that Kerry won "strains credulity." Salon's Farhad Manjoo is far less generous, finding Kennedy's "argument is filled with distortions and blatant omissions." Bob Bauer concurs, concluding Kennedy's "case does not stand up to even casual scrutiny," and may even set back the case for "progressive election reform."

While Kennedy is focusing on a new issue, it appears his penchant for overstatement and exaggeration remains. As I've documented time and again (and again, again, again, and again), Kennedy's attacks on the Bush Administration's environmental record were error-filled and overwrought. This is not a defense of Bush's environmental policies, for it is a record worth criticizing on many fronts. But any critique should be based on factually accurate accounts — and Kennedy's were not. Kennedy may be aiming at a new target, but his accuracy remains poor.

UPDATE: More on RFK Jr's election 2004 claims here, here, and here.

Gay marriage in Europe, again:

One of the footnotes in the debate over gay marriage has been the discussion between Stanley Kurtz (on one side) and just about everyone else (on the other side) over what effects, if any, gay marriage has had on the European societies where it has recently been recognized. Over at, Maggie Gallagher has posted a response by William Eskridge and Darren Spedale to Kurtz's latest attempt to show that gay marriage is harming marriage in Europe, specifically the Netherlands.

Kurtz has done so much switching back and forth between European countries, and between time frames that he says show some causal relationship, and has done so much to confuse causation and correlation, that I confess I don't follow his work that closely anymore. (Maggie, to her credit, has never relied on Kurtz's claims about Europe and has even seemed to distance herself from them. Also to Maggie's credit, she has repeatedly sought out and posted at the serious work of authors who disagree with her, like Eskridge, Spedale, and Jon Rauch.)

Eskridge and Spedale have actually been patient enough to refute Kurtz, however, including in their new book on the effects gay marriage where it's been tried. An excerpt from the latest post over at Marriagedebate:

For several years, Kurtz argued that same-sex marriage (in the form of registered partnerships) in Denmark and other Nordic nations had meant the “end of marriage” in Scandinavia. This was an overstated claim, at the least. As we document in our new book, the marriage rate actually increased and the divorce rate declined after Denmark adopted its same-sex registered partnership law in 1989.

This 'end of marriage' argument was accompanied by a similar argument, that same-sex partnership legislation has inspired straight couples to bear and raise their children outside of marriage. This, too, is not factually correct. . . .

Finally, as we document in our book, the long history in Scandinavia with registered partnerships has seen some benefits accrue to the institution. Not only have long-standing trends in lower marriage rates / greater divorce rates / greater numbers of out-of wedlock births reversed themselves or stabilized, but same-sex unions have also proven themselves to keep relationships stronger, strengthen families, protect children, promote tolerance, and possibly lead to benefits on a national scale such as lower national rates of STD and HIV infections.

Sensing that he is losing the case with those countries with these longer-lived partnership laws, Kurtz has substantially shifted to the Netherlands, as illustrated by his recent article "The Smoking Gun" (National Review On-Line, posted June 2, 2006). . . .

Kurtz argues that he finally has data that support his claim that same-sex marriage 'causes' high rates of children born outside of marriage. For several reasons, this data reveal no causal link.

First, the Netherlands' institution of same-sex marriage is too recent to draw any conclusions at this point. Kurtz responds that the Netherlands recognized registered partnerships in 1997 (they became available in 1998). Unlike the Scandinavian laws, however, the Dutch partnership law was, and remains, available to different-sex as well as same-sex couples. In fact, more heterosexuals take advantage of registered partnerships in the Netherlands than same-sex couples. Hence, the symbolic message it was sending was different: not just recognition of lesbian and gay unions, but also providing straight couples an alternative to marriage. Providing them another option might be expected to draw straight couples away from marriage.

Kurtz also claims that the 'campaign' for same-sex marriage began in a big way much earlier, perhaps 1989-90. The mere possibility of same-sex marriage, he seems to be saying, 'causes' straight couples to abandon the institution and have children outside marriage. This is a lavish understanding of social causation. . . .

Second, an event does not 'cause' a trend if the trend pre-existed the event. . . . The nonmarital birth rate in the Netherlands has been increasing exponentially since the 1970s. It galloped up in the 1980s, and continued that gallop in the 1990s and the new millennium. The rate doubled between 1982 and 1988, doubled again between 1988 and 1997, and is on the way to another doubling. These are significant increases, but registered partnerships, not to mention same-sex marriage, came right in the middle of this demographic trend. . . .

Third, and perhaps most important, Kurtz makes the mistake David Hume calls the 'post hoc proper hoc' (after that, therefore because of that) fallacy. (1) The U.S. Supreme Court struck down all state laws barring different-race marriage in 1967, and (2) American divorce and cohabitation rates went up dramatically after that. This sequence does not mean, however, that (3) the first event caused the second trend.

To figure out why Dutch nonmarital childbirth rates have gone up so dramatically in the last generation, we need to look at other variables – including changing attitudes about women working outside the home, the trends in neighboring countries as Europe became more integrated, and evolving social mores. To “blame” this trend on same-sex marriage, which came at its tail end, is like blaming the last batter in a 10-0 baseball game for 'causing' the home team to lose. . . .

It seems fairly clear that gay marriage did not cause the bad marital trends in Europe Kurtz points to. At least, it's clear there's no good evidence yet to support that claim. I'd like to believe that gay marriage/partnership has had some of the positive effects in Scandinavia that Eskridge and Spedale suggest, but I'm not quite there yet either. I still need to read their book, which may convince me. In the meantime, I'm skeptical of all claims that the addition of about 1-2% more couples to marriage has had or will have any effect on marriage, good or bad. Marriage is important for gay families who want and need it, but probably not earth shattering for anyone else, despite all the excitement the issue generates.


Sunday, June 4, 2006

Sunday Song Lyric: Part of the Friday evening entertainment at this weekend's "Environmental Wars" conference was California-based political satirist Roy Zimmerman, who specializes in "funny songs abot war, ignorance, and greed." Although I don't share all of Zimmerman's political views, I found some of his songs to be quite funny. Despite the risk that the printed lyrics won't capture the humor of the actual performance, I've selected one of his songs -- "Let's Go After the Bhuddists" -- as today's song lyric.
There's an enemy living among us
I think you who I mean
Nobody really knows a thing about them
Not even Martin Sheen

They're a threat to our standard of living
And the cheap supply of oil
I say let's rout their sorry asses out
Before they soil our American soil

Oh, let's go after the Buddhists
Let's knock some shaven heads
Those humanistic, non-materialistic,
Pacifistic slugabeds

They're ego-less and nonviolent
Un-American and weird
They just sit and stare at the wall and their
God doesn't even have a beard

Oh, I don't want to say too much about it
They might be listening right now
Meet me later in the parking lot
I got the yellow El Camino with the
Bumper sticker saying,
"Isolationism — Ask Me How!"

It's a nation of freedom and tolerance
And that's just plain dangerous
Let's wipe out terrorism everywhere
Except, of course, where the terrorists are us

Oh, let's go after the Buddhists
Let's go rough up some monks
Those semi-mystic, anti-dualistic
Morally relativistic punks

Instead of contemplating their navels
They can contemplate our naval might
Hone your epithets, grab a torch and let's
Go find somebody to enlight...en

Hey, dude
You look like you'd
Have a patri-idiotic attitude
Let's kick some Bude!

Lyrics to more Zimmeman songs can be found here. Zimmerman's home page is here.
Environmental Wars Conference:

My blog posts on the Skeptics Society's "Environmental Wars" conference are now posted on The Commons Blog and indexed here.

UPDATE: DeSmog Blog also blogged on the conference (albeit from a different perspective) here.

Related Posts (on one page):

  1. Environmental Wars Conference:
  2. Environmental Wars Conference:
Bush to retract support for a federal marriage amendment in Monday speech, news report says:

This is stunning news.

First, here’s a little background to put this development in context. By the middle of 2003, the Federal Marriage Amendment had been languishing in Congress for a couple of years. Its main organizational sponsor, the Alliance for Marriage, had gotten a few congressional sponsors but no prominent politicians had made it a focus of legislative efforts, there had been no hearings on the proposed amendment, and no vote had been scheduled. The president had not lifted a finger to support the effort.

Throughout the last half of 2003, President Bush faced mounting pressure from religious conservatives in the GOP to come out in favor of the amendment. On June 26, 2003, the Supreme Court issued its opinion in Lawrence v. Texas, declaring state sodomy laws unconstitutional and backing the “dignity” and “autonomy” of gay persons seeking to enter “personal relationships.” Justice Scalia ominously warned in dissent that gay marriage was next on the judicial agenda. Opponents of gay marriage figured that now the president would back an amendment. But, at a July news conference, Bush declined to do so, saying only that his lawyers were looking at ways to support traditional marriage.

Then, in November 2003 in Goodridge v. Dep’t of Public Health, the Massachusetts high court ordered that state to become the first in the country to recognize gay marriages. Religious conservatives believed that surely now the president would announce his support for an amendment. Still Bush was silent.

Next, in January 2004, the president gave his state of the union address before a nationally televised audience. Speculation mounted that Bush might take this high-profile opportunity in an election year to urge a constitutional amendment. Surely the president’s lawyers had had enough time to analyze the issue. But beyond some boilerplate rhetoric about protecting traditional marriage, Bush offered nothing to amendment supporters.

Politicos were bewildered. It was an election year. The president’s base was antsy and the war in Iraq was already faltering. It made no sense, politically, for the president not to endorse an amendment. Supporting an amendment would thrill religious conservatives. It would also appeal to traditionally Democratic voters who opposed gay marriage but were otherwise uncomfortable with Bush. At the time, since everyone conceded the amendment had no chance of passing, it would be seen as a symbolic gesture that didn’t really hurt anybody. Those Republicans and independents uncomfortable with an amendment that seemed to them so pointless and unnecessary as to be inexplicable other than as an exercise in gay-bashing, but who otherwise supported Bush on issues like national security and taxes, could overlook his support for the amendment as a necessary concession to a political imperative. With everything to gain among gay-marriage opponents and little to fear from its supporters, Bush’s hemming and hawing made no sense.

It made no sense, that is, unless the president was acting on some principle under which he did not think, no matter the political cost, that we should amend the Constitution and strip the states of all power over the matter in order to cool the hot brow of the excitable partisan. Principle, not politics, must lay behind Bush’s demurral.

Finally, in February 2004, the mayor of San Francisco and a smattering of other local officials around the country began issuing marriage licenses to same-sex couples in their jurisdictions. More than 4,000 gay couples in San Francisco alone signed up. Opponents of gay marriage warned of “chaos” and “lawlessness” and demanded presidential action.

Where Lawrence and Goodridge had failed to budge the president, the actions of these local officials provoked Bush at last. On February 24, 2004, President Bush called a news conference to announce he’d decided to support a constitutional amendment after all. "After more than two centuries of American jurisprudence and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization," Bush said. The people were losing control over the issue; an alien idea was being forced on them. He also warned of unspecified “serious consequences throughout the country” if a city or state – like Massachusetts — recognized gay marriages even in its own jurisdiction.

Within months, the “chaos” and “lawlessness” brought on by “local authorities” was ended by the authorities themselves, by higher state officials, and by the very courts Bush had said could not be trusted on the issue. The “crisis” of gay marriages ended almost as soon as it had begun. The 4,000 San Francisco marriages, for example, had all been nullified by the California Supreme Court. The states proved quite capable of policing themselves and their officials, as they always had, without the need for a federal amendment. The use of these isolated and now defunct local actions to justify a federal marriage amendment has been a particular embarrassment to FMA supporters.

As for Bush’s stated fear that “a few judges” were undermining millennia of wisdom, two years later no federal court has even come close to trying to force gay marriage on the country — Lawrence notwithstanding. DOMA stands as good law, backed by the sole federal judge even to consider its constitutionality.

Additionally, after two years and more than 8,000 gay marriages in Massachusetts there have as yet been no “serious consequences throughout the country,” about which Bush had worried. No other state is being forced to recognize same-sex marriages performed in Massachusetts. There have been no insuperable complications arising from discordant state approaches to the recognition of same-sex relationships.

And a remarkable thing has begun to occur since Bush’s 2004 announcement, when he warned that unelected judges were usurping the will of the people. The people themselves, acting through their elected representatives, have rebuffed attempts to extinguish gay marriages in Massachusetts, have authorized gay marriages in California, have enacted civil unions in Connecticut, and are considering various forms of recognition for same-sex couples in other places. Gay marriage is no longer simply the cause of litigants, but is increasingly the cause of representative democracies.

In short, just about everything Bush said in February 2004 to justify his support for a federal amendment has been undermined by subsequent experience.

Now, the stunning news. In light of experience, it appears President Bush has rethought the question. He’s called a press conference Monday to address the issue of a constitutional amendment banning gay marriage.

In advance of the press conference, the following news report has just come across my computer screen:

(Washington, D.C., June 4) President Bush will announce at a news conference Monday that he has decided to retract his support for a federal constitutional amendment banning gay marriage, says a source within the National Security Agency who monitored a presidential telephone call to congressional allies on the subject.

According to the NSA source, the president will make the following statement:

“Throughout my time as your president, I have made difficult decisions because I thought they were in the best interests of the country. I have stood by the principles that make this country great, and that have served it well for more than two centuries, regardless of the political consequences to me and my party. I believe the people should keep more of their money and that low taxes produce prosperity for everyone, so I have backed tax cuts that were demagogically denounced by members of the other party as helping only the rich. I believe you can plan better and invest more wisely for your future than the government can, so I have supported Social Security reform that many say is the ‘third rail’ of politics. I believe immigration has made this country great and that people who come here to make a better life for themselves deserve a chance to become Americans, so I have backed a path to citizenship for illegal immigrants despite the intense opposition of many members of my own party. And I think this country has a moral duty to help fledgling democracies and to carry through on its commitments, so I have refused to pull our troops out of Iraq despite the rising unpopularity of the war.

“Two years ago, in this place, I announced my support for a constitutional amendment defining marriage as the union of one man and one woman. I strongly believe that’s what marriage is and should be. If I were a state legislator or a governor, I’d oppose defining marriage in any other way. I supported the amendment because, at the time, I feared that uncontrollable judges and local officials were recklessly and lawlessly playing with the foundation of the American family.

“But I was wrong. Like others, I overreacted to what seemed like an emergency. I did not have sufficient faith in the historic processes of American government. The local officials who were defying state law in 2004 have been brought into line. DOMA is still good law. The states have begun amending their own constitutions to define marriage. I have appointed many federal judges in the mold of Justices Scalia and Thomas, including two to the Supreme Court, who will not tamper with marriage. And while I still fear that some state courts will attempt to redefine marriage in years to come, I am confident that the people in those states can deal with their own courts if that is what they choose to do. After all, that is what we have always trusted them to do.

“We may not like the choices some states make about these matters, but if our nation’s historic commitment to federalism means anything, it means that the states should, within constitutional limits, be allowed to go their own way on important matters of criminal law, property law, and even family law. That, at any rate, has been the dominant practice and theory of our federal design for more than two centuries.

“Never before in the history of the country have we amended the Constitution in response to a threatened (or actual) state court decision. Never before have we amended the Constitution to preempt an anticipated federal court ruling. Never before have we adopted a constitutional amendment to limit the states’ ability to control their own family law. Never before have we dictated to states what their own state laws and state constitutions mean. Never before have we amended the Constitution to restrict the ability of the democratic process to expand individual rights. This is no time to start.

“I know this decision will not be popular with many members of my own party. But it is a president’s responsibility to lead, not to follow, especially when it comes to matters of important principle. As on so many other decisions I’ve made, I will not bow to political pressure when I know better. Two years ago, I should have known better. Now I do.”

Standing by his side at the news conference will be Vice President Dick Cheney, who said in 2004 that he opposes an amendment because states should be allowed to decide the issue for themselves and that “freedom means freedom for everybody”; Sen. John McCain (R-AZ), the leading contender for the GOP presidential nomination in 2008; former Rep. Bob Barr (R-GA), the main House author of DOMA; conservative commentator George Will, who announced on ABC’s “This Week” that he opposes an amendment because state experiments with gay marriage may produce valuable information about whether the reform is worthwhile; conservative policy analyst James Q. Wilson, who likened a federal marriage amendment to that conservative bete noire, Roe v. Wade, in an op-ed for the Wall Street Journal; and numerous other life-long conservatives who have consistently championed federalism.

Also present will be First Lady Laura Bush, who recently said that the gay-marriage issue should be discussed “sensitively” and should not be used for political purposes.

Karl Rove, the president’s senior political advisor, could not be reached for comment.

The news report comes from HSEPA, the Hope Springs Eternal Press Agency.