Saturday, July 1, 2006

Shatner's Tribute to George Lucas: By far the funniest part of this bit is at the very start. (Hat tip Right Coast).

Epic Battle for Press Freedom

In my latest Rocky Mountain News column, I detail the 1905 clash between the Colorado Supreme Court and Democratic Senator Thomas Patterson, the publisher of the Rocky Mountain News. Patterson was convicted of criminal contempt of court after he published a series of scathing editorials and cartoons accusing the court of corruption, after the court invalidated an election in Denver.

Let me add a few observations which might be of particular interest to law-oriented readers, and which couldn't fit in the 800 word limit of the printed column.

1. The underlying case involved a clash between Denver's newly-created constitutional home rule powers (Amendment 20 of the state constitution) and the rest of the constitution; specifically, did Amendment 20 give Denver the power to schedule spring elections for certain municipal offices. The court majority said that, for county officers whose existence is contemplated in the state constitution, the election must be in the November, when all state-related elections must take place. Unlike Patterson, I think that there were good legal arguments on both sides of the question.

2. The Supreme Court majority opinion in the contempt case (84 P. 912) is difficult reading, especially because the author liked to write paragraphs over a page long. Most of the opinion consists of the offending newspaper articles, plus Patterson's averments. The legal analysis does not come until the very end.

3. The dissenting opinion is beautifully-written and inspiring.

4. The Holmes opinion for the U.S. Supreme Court (205 U.S. 454) is of course well-written, but it tersely avoids the central issue. As Holmes points out, there could not possibly be a blanket rule that truth is a defense in a criminal contempt case. For example, a lawyer might disclose some information which was truthful, but which was subject to a confidentiality order. But the question in Patterson was truthful information about judicial misconduct. (Or more precisely, information which Patterson sincerely believed to be truthful.) Harlan and Brewer dissented.

5. In the 1918 case of Toledo News v. U.S., the U.S. Supreme Court upheld the authority of a federal court to use criminal contempt to punish controversial speech. Holmes dissented, and Brandeis joined the dissent.

6. In the 1941 case Nye v. U.S., a 6-3 majority of the Supreme Court, led by William Douglas, reversed the Toledo decision. William E. Doyle, a Colorado lawyer who would later serve on the Colorado Supreme Court and as a federal district judge, wrote that the Court had finally recognized that the First Amendment must prevail over a court's contempt power, and so "Thomas Patterson's beliefs have received recognition from the highest court in the land." Doyle, "Patterson Vindicated," 18 Dicta (no. 7, July 1941): 169-72.

Kelo Saga Concludes:

Tom Blumer reports that in the end Susette Kelo saved her house, but not her land. Her house will be spared and physically relocated to another parcel of land. As for the other remaining family that refused to move:

While Kelo’s agreement today signifies her deep attachment to her home, the agreement reached with the other remaining homeowner, the Cristofaros, reflects the family’s deep affiliation with the Fort Trumbull neighborhood, where they have lived for over 30 years. Although the Cristofaros will lose their current home, under the agreement, the City and the NLDC have agreed to support an application for more housing in Fort Trumbull, and the Cristofaro family has an exclusive right to purchase one of the homes at a fixed price. Moreover, a plaque will be installed in the Fort Trumbull neighborhood to commemorate the loss of family matriarch Margherita Cristofaro, who passed away while the battle against eminent domain abuse occurred in New London.

Tom sums up his final observations on the settlement:

I’d like to think that the fact that the city and the NLDC, armed as they were with their deeper-pocket legal advantage and even a Supreme Court ruling, were in the end still not able to simply roll over everyone involved, will give some comfort and encouragement to those resisting countless eminent-domain actions around the country. But it would be dangerous to think that the holdouts could have salvaged what they did without Governor Rell’s intervention. True, a referendum appeared to be headed for the ballot in New London, but how binding it would have been is at least somewhat debatable. The lesson for others trying to keep the eminent-domain monster at bay is that until meaningful legislation takes effect, the help of sympathetic politicians who follow through on their commitments will be essential to achieving any kind of success.

Mike Cristofaro is right, that the struggle against the tyranny of extra-constitutional eminent domain is far from over. I personally don’t think we’ll see a definitive end to it without either defining legislation from Congress or a Supreme Court reversal.


With all the lip-flapping about nation-building going on, here's a thought that is, alas, way too simple (and way too obvious) to ever be taken seriously. Aprroximately two billion people out there care more about the outcome of the World Cup than about pretty much anything else. Or, more precisely: people care more deeply about the fate of their national team than they do about damned near anything else in life. That goes for people in the Ivory Coast and for people in Germany and in Iran and in just about everyplace on earth. A hundred million dollars to build up Iraq's soccer team would do more for nation-building than any other damned thing we could possibly do -- why nobody sees this is totally beyond me.

Soccer Coaches:

Soccer is an almost-entirely improvised affair -- another one of the things that makes it the greatest of sports. Anyone who thinks that basketball is the great improvised sport -- "like jazz," as the cliche has it -- has never watched a soccer game. [And I mean that not as some kind of moral judgment, but as a simple empirical claim]. Soccer coaches can't really do very much at all during the game; their job is more-or-less complete when the whistle sounds, their team is either ready or not. And they only get three subs the whole game. At the professional level, coaches (or 'managers,' as they're usually called) sometimes even sit up in the stands during the game -- the better to see what's happening, since there's not a whole lot they can do down on the field anyway.

But Argentina's manager, Jose Pekerman, managed to lose the match for them yesterday, pretty much single-handedly, I'd say. It was quite unbelievable. Remember Grady Little, and the Pedro Martinez affair, when everybody in America knew that Pedro had to come out of the game except his manager? Multiply by 100 or so (because this is the World Cup, and so much more is at stake for so many more people). Argentina is up 1-0 and, to my eyes, in complete control of the game. Their 'keeper has been injured and subbed out. With 20 minutes to go, Pekerman takes out Riquelme and Crespo -- Argentina's two best offensive players. Strange . . . but he does have wonderful substitutes on the bench: Pablo Aimar (one of the great creative midfielders in the world, a perfect sub for Riquelme), and Lionel Messi, who has had a sensational tournament and who will soon be, by common consensus, the best player in the world.

The problem is, he doesn't put either of them in the game -- he puts in Cambiasso, a defensive midfielder, and Julio Cruz, a 2d rate striker. AND NOW HE'S OUT OF SUBS. Neither Aimar nor Messi can see any action at all in Argentina's most important game of the last 20 years. So when Germany, predictably, scores and they go into extra time, he's got the wrong damned team out there. The rest was completely predictable.

I cannot even imagine how angry I'd be if I were Argentine. If you have Argentine friends and want to display your deep sympathy for them, just walk up to them and say "Julio Cruz? Julio Cruz??" Tears should be welling up in your eyes as you do this.

This Argentine team deserved better -- they had the talent, and showed in snatches the ability, to play at truly heavenly heights. Though at least the Germans, this time around, are playing some beautiful attacking soccer. If the Germans had won the last time it would have been a travesty -- even die-hard German fans admit that the team's presence in the Final was more the result of having an easy draw (getting the USA and S. Korea in the quarterfinals and semifinals ain't exactly tough going -- and the US outplayed them, to boot) than great soccer playing. But this year's team is, I have to admit, fun to watch.


Friday, June 30, 2006

Bubble's Over, Sellers in Denial:

Over at the Housing Bubble Blog, I'm seeing more and more stories like this: Boston Globe: After having her home on the market for nearly a year, with about 30 showings, multiple price drops, and only one not-so-tempting offer, Phyllis Troia decided to try something different. She put her Dutch colonial in Plymouth up for auction. ‘It’s marketing out of the box,’ said Troia.”

“‘I had to take my destiny into my own hands,’ Troia said, because, ‘the only solution my realtor came up with was to undersell my house. This, she added , is a wake-up call to the real estate industry.’”

“After the weekend, there were nine bidders. But in the end, she was not satisfied with the final two bids, and exercised her right to close the bidding. She’s now moved on to a for-sale-by-owner model.”

“Troia’s efforts reflect the frustration of home sellers in the region. There are nearly 1,000 more single-family homes for sale on the South Shore than there were a year ago at this time.”

“Troia, however, is happy she is taking the go-it-alone route to get what she thinks her house is worth. ‘This is a great house,’ she said over and over, as people meandered through during her recent open house. ‘We’ll see what happens,’ she said. ‘I have too much invested to walk away with a minimal amount of money.’”

Note the absurdity that this buyer thinks she is entitled to a particular price she may have been able to receive at the height of the bubble last year. The fact that neither her agent nor an auction could get her that price leaves her undeterred. Note also that despite the recent small downturn housing prices in the Boston area have still more than doubled in the last six years. Yet the seller somehow thinks that selling her home for more than double what she could have received six years ago would be "underselling" her house. Incomes and overall prices, of course, haven't even come close to doubling. You now, folks who sold Cisco at 60 in mid-2000, having lost 1/4 of their paper (and speculative) profits, turned out to be pretty smart.

"Human Rights Atrocities: The Consequences of United Nations Gun Confiscation in East Africa"

That's the subject of a new Issue Backgrounder just published by the Independence Institute, co-authored by Paul Gallant, Joanne Eisen, and me. The monograph details how U.N.-backed gun confiscation programs in Kenya and Uganda have led to murder, torture, and arson, and have turned tens of thousands of pastoral tribespeople into starving refugees. The paper is available in PDF and in HTML.

Rooting for Your Team: I just had another thought about citizen involvement in the GWOT. Many have long contended that organized sports is an emotional substitute for warfare. Consider how involved fans become with their teams. They even buy at great expense "official" clothing and wear it to show their support. Teams cultivate their fans, at least smart ones do.

However, unlike WWII, with this real war, no such "official" involvement exists. And given press coverage of the war, you cannot even stay reliably informed of its progress — unless you follow blogs, of course, but that is a highly niche audience. The only box score you get is how many soldiers and Iraqi civilians have been blown to bits each day. This is like following a team by reading just the daily injury reports (which true fans do read).

To push the analogy to the breaking point. Think of the NFL players in the backfield on a defensive stand waiving to their arms to get the fans to scream. Think of the effect of a home team quickly falling behind in a game, so they lose their "home-field advantage." The obvious analogy here is to efforts to support the troops, etc.

But here is where the analogy breaks down, but in an illuminating way: In asymmetric warfare, unlike in sports, terrorists are hoping they do not have to defeat the opposing players on the field. They just have to sufficiently demoralize the "fans" until their players get "redeployed." So their actions are aimed at the fans, through the media, as much as at their opponents on the field. Which is all the more reason why cultivating fan or, rather, citizen involvement with a real war is even more important than with war-subsitutes like organized sports. With American wars prior to Korea, this seems to have been better understood by the administration in power.

(Civil comments only please)

Related Posts (on one page):

  1. Rooting for Your Team:
  2. Balkin on Hamdan:
[Andy Leipold (guest-blogging), June 30, 2006 at 10:14am] Trackbacks
Judge vs. Jury Acquittals; Thanks

Thanks to everyone who slogged through the last four days of posts about judicial acquittals. The comments were extremely helpful to my ongoing thinking about the topic; I appreciate that so many took time to offer their insights. Thanks also to Eugene for inviting me. Hope to do it again sometime. Best, Andy


Thursday, June 29, 2006

Balkin on Hamdan: Jack Balkin has a very nice post Hamdan as a Democracy-Forcing Decision, the essence of which is:
What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way.
(Read the whole thing.) It has long seemed clear to me and many others who are otherwise sympathetic to its policies that the Bush administration made two colossal errors in prosecuting the general war on terror.

First: Not seeking quick explicit congressional authorization for such policies as incarceration, military tribunals, etc. The Hamdan case was just one result of this failure. Now, such involvement is much more difficult to accomplish; then it would have been relatively easy. Just not as easy as going it alone, which has proved to be the harder course in the long run.

Second: Not involving the American public directly in supporting the war. Tax increases or a military draft were not needed for this. But bond drives, resource collection, and other assistance-to-the-military programs — even better, some form of volunteer genuine militia service — in the wake of 9/11 would have given the public some ownership of the resulting policies. Many called for these sorts of initiatives at the time. They were waiting to be asked to pitch in and help. Instead the administration adopted a Vietnam-type strategy of "We'll handle things; you all go about your business." Which leads to bad reactions when "things" do not go as smoothly as expected.

The administration essentially opted for a one-branch war, and the country is now paying the price for that decision. While the failure to involve Congress is merely hard to rectify at this point, the failure adequately to involve the public may now be impossible to remedy.

Neither of these observations is original to me. Both points were made by others when the GWOT began, which is why it is not hindsight to point them out on a day that a very large chicken has come home to roost.

There are important lessons to be learned here for future wars, both conventional and asymmetric. I am no expert on military strategy, etc., and for this reason do not blog about it. But this falls more into the domain of political or constitutional theory, and tells us something important about the value of the separation of powers. Jack's basic point is that the Court is giving the administration a mulligan. But the do-over will be much more difficult than the initial shot would have been. It did not have to be this way.

(Civil comments only please.)

Update: Some of the comments have concerned the militia suggestion alluded to above. I raised this possibility on 9/18/2001 (so please forgive its emotional tone) in an essay Saved by the Militia: Arming an army against terrorism. Of course, the merits of this particular form of citizen involvement are somewhat tangential to my principal point about the cost of insufficiently involving the public in a major war like the GWOT. And my original post did not concern the correctness of the Court's decision in Hamdan--especially its decision to reach the merits of the dispute. I was merely commenting on Balkin's insights about its scope and affect.

Related Posts (on one page):

  1. Rooting for Your Team:
  2. Balkin on Hamdan:
Interpreting Common Article 3 and Justice Thomas:

A major aspect of today's Hamdan v. Rumsfeld opinion was the Court's conclusion that Common Article 3 of the Geneva Conventions applies to Al Qaeda. (Common Article 3 applies to "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.") Some conservative bloggers have expressed outrage about such an interpretation of Common Article 3. See here and here. They seem to be saying that the language of Common Article 3 simply cannot be read to extend to this sort of conflict.

Unless I missed something (always a possibility based on a quick read), the only dissenter who says he disagrees with the majority's reading of Common Article 3 as applying to Al Qaeda is Justice Thomas. Scalia focuses on jurisdiction, and Alito talks about how Common Article 3 should apply to the specifics of this case. Scalia and Alito join the portion of Thomas's dissent that talks about whether Common Article 3 applies, so that's where the discussion is. Thomas focuses most of his discussion on arguments that do not directly consider the language of Common Article 3, but rather focus on legal authorities that might constrain the Court from interpreting the language on the merits. He says that Johnson v. Eisenstrager forecloses the majority's application of Common Article 3 to Al Qaeda, and that the Court should defer to the executive's interpretation. He may or may not be right in making these arguments, but they don't address the key point that bloggers are making — namely, that the language of Common Article 3 doesn't apply to Al Qaeda, period. On that key question, Justice Thomas says that both the President's and the majority's positions are plausible and reasonable. Here is the entirety of the discussion (raised in the context of Thomas saying the Court should defer to the President's interpretation, rather than interpret the language on its own):

The President’s interpretation of Common Article 3 is reasonable and should be sustained. The conflict with al Qaeda is international in character in the sense that it is occurring in various nations around the globe. Thus, it is also “occurring in the territory of” more than “one of the High Contracting Parties.” The Court does not dispute the President’s judgments respecting the nature of our conflict with al Qaeda, nor does it suggest that the President’s interpretation of Common Article 3 is implausible or foreclosed by the text of the treaty. Indeed, the Court concedes that Common Article 3 is principally concerned with “furnish[ing] minimal protection to rebels involved in. . . a civil war,” ante, at 68, precisely the type of conflict the President’s interpretation envisions to be subject to Common Article 3. Instead, the Court, without acknowledging its duty to defer to the President, adopts its own, admittedly plausible, reading of Common Article 3. But where, as here, an ambiguous treaty provision (“not of an international character”) is susceptible of two plausible, and reasonable, interpretations, our precedents require us to defer to the Executive’s interpretation.

Bloggers (and others) can continue to say that the language of Common Article 3 simply cannot be read to apply to Al Qaeda. But not a single member of the Supreme Court agrees. That doesn't make the bloggers wrong, of course -- just lonely.

Hamdan v. Rumsfeld: I have some initial reactions to today's opinion in Hamdan v. Rumfeld over at my solo blog, and hope to have more up later today.
National Review on the GMU Law and Economics Center and Judicial Ethics:

The National Review discusses the controversy over the George Mason Law and Economics Center and judicial ethics. Obviously, I'm not a completely unbiased observer. But in truth the LEC conferences for judges are no different from events sponsored by a wide variety of other groups, both liberal and conservative.

[Andy Leipold (guest-blogging), June 29, 2006 at 9:53am] Trackbacks
Judge vs. Jury Acquittals, Some Conclusions

Yesterday there were more very helpful posts and emails in response to the puzzle of why federal judges are much more likely to acquit than juries, and why the gap grew between 1989 and 2002. Today I will offer some tentative conclusions on what the data reveal, and respond to a couple of comments.

I mentioned earlier that the conviction gap between judge and jury was large, growing, and could not be explained by those variables I studied. Judges are more acquittal-prone in felony cases, misdemeanors, across all categories of crime, in virtually every judicial district, and with all types of defense lawyers. This led me to consider two other possibilities – that juries are becoming increasing prone to convict regardless of the evidence, and/or that judges are seeing something in the cases that makes them increasingly likely to acquit.

[A] As to juries. Maybe the fear of crime and a law-and-order attitude are increasingly seeping into the jury box, making jurors willing to convict on lower and lower degrees of proof. Jurors know from watching Law & Order (and its 17 spin-offs, most of which are pretty good) that prosecutors are really good people who only really go after the guilty, and perhaps this mind set is making jurors more trusting of government evidence, which in turn encourages prosecutors to bring weaker cases to trial.

The problem with this theory is I couldn’t find any supporting evidence. If prosecutors really were getting the same conviction rate on weaker evidence, we would expect to see some impact on the dismissal and reversal rates, even though these are admittedly very rough proxies. But the percentage of federal defendants who had their cases dismissed at some point in the process decreased over the period studied, and the reversal rate (for reasons other than faulty sentences) remained constant, with the exception of a small blip in 1996-97. People’s fear of crime – something that might lead to a more pro-prosecution attitude among jurors – was variable, and did not track the conviction rates, which for juries was steady as a rock. And so while I can’t say that juries are *not* prone to “over-convicting,” I don’t see, and have not read, any evidence that they are.

[B] Judges. The core problem is to find something about criminal trials that has changed since the late 1980s, something that would affect judges but not juries. With a tip of the hat to the many people who suggested this in their posts, I think the Sentencing Guidelines best fits this description. The Guidelines took away a huge amount of sentencing discretion, which meant that judges were more often faced with cases where they knew that a conviction would result in a harsh – maybe too-harsh – sentence. We don’t have to say that judges were acting “lawlessly” to reach the unremarkable conclusion that judges may hold the government even more tightly to its burden of proof when the stakes are high and unforgiving.

Evidence of this is obviously hard to come by, and does not uniformly support the thesis. But consider: (1) the timing is nearly perfect, with the Guidelines really hitting stride just as the judicial conviction rate started to slide; (2) many, many judges were harshly critical of the how the Guidelines made it harder for them to do justice in individual cases; (3) there is social science literature to support the view that the greater the punishment the slower people are to impose it, but who needs social science? This phenomenon occurs in the law all the time. Few people doubt that the exclusionary rule’s application is influenced by the seriousness of the crime and the importance of the evidence. The Supreme Court has recognized that concerns about the death penalty can influence jurors at the guilt stage. Frank Bowman and Michael Heise, in their terrific studies on drug sentences, suggest that harsh sentences influence prosecutorial and judicial decisions that are formally unrelated to punishment. It would hardly be surprising to learn that judges might require more and better proof of guilt when they cannot control the sentence. This would help explain why judges, but not juries, have changed their behavior since the late 1980s.

What conclusion to draw from this? The glib answer is that I need to do a follow up study in a few years, after the Booker dust has settled. The more serious answer may be that we think carefully about how we should strike the balance between consistent treatment of defendants and individual justice.

[C] Comments. Jim Lindgren and others raised a point that is really elemental. (I’ll paraphrase) If judges are so stinkin’ great for defendants, how come they all pick jury trials? More specifically, since Rule 23 says prosecutors or the court can veto a defense request for a bench trial, could it be that prosecutors know that they will do better in front of juries, and therefore routinely frustrate the defense efforts to choose the better factfinder?

Actually that was my first thought when I saw the statistics. But after interviewing lots of lawyers and reading lots of “how-to” trial manuals, I became convinced that prosecutors are not influencing the defense choice of factfinder in any meaningful way. None of the defense lawyers I talked to said that prosecutors frustrated their choices – they put their clients in front of the jury because they want to. All of the prosecutors said they were rarely asked to agree to a bench trial, and when asked, they almost always agreed (unless the judge is “crazy”). The reasons are precisely those identified by Public_Defender in his or her post yesterday: prosecutors don’t want to offend the judge. Also, none of the manuals I saw even hinted that bench trials might be a better choice, except in narrow groups of cases (child porn is the example that many use).

This still doesn’t answer the question why defendants flock to jury trials. Are they just unaware of the conviction rates? (maybe) Do institutional inertia and agency problems make it easier for defendants to choose a jury trial? (Probably; if you go against the norm and lose, it’s hard to explain to boss and client what you were thinking.) Is it really the case that factually guilty defendant overwhelmingly choose juries, because even if they don’t have a great chance, it’s better than before a judge? (The selection bias issue discussed earlier – probably true.)

As always, I welcome thoughts on these or other issues, The full paper can be accessed at


As lots of people have noted in the past decade or so, the increasing globalization of communcation and commerce has at times generated not only strong anti-globalization reactions in some quarters, but has actually stimulated nationalist feelings in many places. World Cup (my favorite subject these days) is an example -- seems to me that people care, if anything, more about their national teams in an age in which national borders, for other purposes, mean less and less. One consequence: there are now opportunities for arbitrage! I use an online betting service that operates out of the UK, and they have made England the favorite (even money) in the game against Portugal (11-4 underdogs). England the favorite?! The English, to any unbiased fan, have looked terrible -- anemic and uninspiring -- while the Portuguese have (notwithstanding that idiotic game against the Netherlands) looked terrific -- but the English fans, I think, are betting, in large numbers, with their hearts. I suspect if I spent more time at it, I could find similarly biased numbers at betting parlors in each of the countries whose teams are in the quarterfinals -- which means there could be some real money to be made here . . .


Wednesday, June 28, 2006

Bleg for Assistance re Religious Congregation's Right to Overrule Board of Directors Selection of a "Minister":

I need to know, relatively soon (and just as a favor to a relative), whether there is any law in Pennsylvania relating to whether a religious congregation has the right to overrule a Board of Directors' selection of the congregation's religious leader (minister, priest, rabbi, etc.). If you don't know Pennsylvania law, law from other states will do, as I can then use that as a basis for my own research. My hunch is that everyone is bound to whatever rules are in the institution's constitution, if any, but I vaguely recall that in some states decisions about hiring and firing (or maybe just firing?) religious leaders must be approved by the congregation. I can be reached at deliotb at sign aol dot com.

Why I am not blogging: I have not been blogging lately and I do miss it. However, I am committed to finishing a draft of a new casebook on constitutional law by August. This project has required a single-minded focus that does not permit me to blog. My previous post is an exception I could not resist.

The good news is that the casebook is coming along quite nicely. It will be quite different from all others now on the market. There will be no "notes" following the cases (though other sources, such as statements by Presidents and others, will be included). Text by me will be limited to briefly providing purely descriptive context and questions to guide students when reading the materials. The cases will be ordered and edited to allow the Supreme Court (and others) to speak for themselves.

If not impeded by tedious comments and notes, what emerges from the cases is a continuous debate about the meaning of the Constitution that traces back to the founding. What makes editing this casebook different than my contracts casebook, is that in constitutional law, we are mainly studying the reasoning of one court that has been in continuous existence since the Founding. If presented chronologically, the great debate that has always existed becomes clear.

The key was to order the earlier cases and other sources chronologically (as just one other current casebook does) and then get out of the way of the different voices that reside in the sources themselves. When it is published, which most likely won't be until January 2008, it should make for a fascinating course. At least that is my goal and hope.
The Herpes Theory of the Commerce Clause: I think I agree with DaveK in this comment on Jonathan's post Limits on Federal Power After Raich that Justice Scalia's concurring opinion in Raich offers a way to reconcile it logically with Lopez/Morrison — though this "reconciliation" greatly expands federal power beyond the line apparently drawn in those previous cases. Justice Scalia is one smart judge, and one always needs to pay close attention to what he says, even where one disagrees with him.

The doctrine to which Judge Sentelle seems to be reacting, however, is not the "broader national economic regulatory scheme" doctrine associated with Raich, but a different doctrine that precedes Lopez and Morrison, and which those two cases never address: that Congress may regulate the possession and use of any item that once traveled in interstate commerce. This doctrine has been called by Professor David Engdahl, the "herpes theory" of the Commerce Clause because, as he puts it, "some lingering federal power infects whatever has passed through the federal dominion." Reconciling this doctrine, which was never at issue in Raich because nothing had moved through interstate commerce, with Lopez/Morrison is very hard to do.

This was pointed out last week in an opinion by Judge Michael McConnell for the 10th Circuit in U.S. v Patton. The case concerned the possession of body armor that had once moved through interstate commerce. Here is what a part of what he writes:
Although the body armor statute does not fit within any of the Lopez categories, it is supported by the pre-Lopez precedent of Scarborough v. United States, 431 U.S. 563, 575 (1977), which held that Congress intended a felon-in-possession statute to prohibit possession of any firearm that had moved in interstate commerce. Scarborough decided only a question of statutory interpretation about a previous version of the felon-in-possession statute, but the decision assumed that Congress could constitutionally regulate the possession of firearms solely because they had previously moved across state lines. . . . Because Mr. Patton’s bulletproof vest moved across state lines at some point in its existence, Congress may regulate it under Scarborough, even though it does not fall within any of the three categories the Court now recognizes for Commerce Clause authority. The prohibition on possessing body armor cannot be distinguished from the prohibitions on possessing firearms that we have upheld. . . . Following our precedent, we conclude that 18 U.S.C. § 931 does not exceed congressional power under the Commerce Clause.

Like our sister circuits, we see considerable tension between Scarborough and the three-category approach adopted by the Supreme Court in its recent Commerce Clause cases, and like our sister circuits, we conclude that we are bound by Scarborough, which was left intact by Lopez. . . . . Any doctrinal inconsistency between Scarborough and the Supreme Court’s more recent decisions is not for this Court to remedy. We suspect the Supreme Court will revisit this issue in an appropriate case — maybe even this one. (citations omitted).
In contrast, here is how he treated Raich:
We recognize that in Raich, the Court interpreted the contours of the third category by reference to “economics” rather than “commerce,” and included the “consumption of commodities” as well as their production and distribution within that definition. Id. (internal quotation marks omitted). That does not alter our conclusion. First, we are bound by the holding of Lopez, reaffirmed in Raich, that the mere possession of firearms near a school is not a commercial activity for purposes of the third category. Second, possession of firearms or body armor cannot be described as “consumption.” Consumption is the “act of destroying a thing by using it; the use of a thing in a way that thereby exhausts it,” Black’s Law Dictionary 336 (8th ed. 2004), and possessing or wearing body armor neither destroys nor exhausts it. Finally, we note that the Raich opinion as a whole treats congressional authority over the domestic consumption of marijuana as within the third category only because it was connected to a comprehensive national ban on “the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market.” Raich, 125 S. Ct. at 2211. The Controlled Substances Act, the statute at issue in Raich, prohibited possession of marijuana as a “means of regulating commerce in that product.” Id. We do not interpret Raich as holding that Congress may criminalize the mere possession of a commodity for the purpose of consumption, divorced from such a comprehensive regulatory scheme, based on the third category.
After Raich, most observers thought that the Commerce Power again had no limits, but the decision in Patton finds the statute outside what is authorized by Raich (though it still upholds the statute under Scarborough). This way of "Limiting Raich" is similar to what I described in a short essay you can find here, but adds another twist: Neither the majority's opinion in Raich, nor Justice Scalia's concurrence, purports to reverse Lopez. Indeed, Justice Scalia tries hard to reconcile them, and Judge McConnell seems to be following his lead. Emphasizing Lopez, however, can have he effect of limiting Raich, IF a court so desires. Will the Supreme Court? We'll see. Given that there is more work to be done reconciling all of the Commerce Clause decisions, there remains an opportunity to find limits on congressional power, IF there is the will to do so.

Related Posts (on one page):

  1. The Herpes Theory of the Commerce Clause:
  2. Limits on Federal Power After Raich:
[Andy Leipold (guest-blogging), June 28, 2006 at 10:07am] Trackbacks
Judge vs. Jury Acquittals, More Results

Those who have been kind enough to follow the posts over the last two days have seen some terrific comments and questions about why federal judges are statistically more likely to acquit in criminal cases than juries are. Here are a few more findings, and then a couple of observations on the comments (The full study is available on SSRN at

I mentioned yesterday that the category of crime the defendant was accused of committing (drug, immigration, violent, public order, etc.) showed some variation, but at the end of the road, judges always acquit more than juries, regardless of the crime type. That statement holds true across the following variables:

[1] Judges are more likely to acquit whether the crime is a felony or a misdemeanor. This was significant, since 89% of all serious misdemeanors (i.e., those for which defendant *could* have a jury) are tried to the judge, and 74% of bench trials involved misdemeanors.

I do think the high percentage of “bench” misdemeanors explains something, even if it does not explain the change in judicial behavior over time. My guess is that misdemeanor cases get less experienced investigators and prosecutors, less grand jury investigation, and less preparation generally. These shortcomings may not be obvious to a jury, but may be quite obvious to a judge, and thus may explain part of the conviction gap. But the gap remains when we look at felonies only, so this is a partial answer at best.

[2] Judges are more likely to acquit than juries regardless of the type of defense counsel – private, panel, public defender, or pro se. I had wondered whether group norms or workload pressures might explain some of the differences, but they really don’t. Defendants represented by different counsel type do roughly the same (badly) before juries, all being convicted at a 82% - 87% rate, while defendants with all types of defense counsel do much better in front of judges.

[3] Judges are more likely to acquit in all parts of the country. I wondered if differences in case loads, case mix, local rules, circuit law, and jury pools might lead to regional differences. Wrong again. In *every* circuit, the district court juries convict 80% to 89% of the time (the First Circuit has the lowest rate, the Seventh Circuit the highest), and in every circuit, the district court judges convict a lower percentage of the time, with most in the 50 to 70 percent range.

In fact, when I looked at individual districts, it turns out that juries convicted more often in 89 out of the 94 districts in the country. The five districts with slightly higher judicial conviction rates were the D. Colorado, W.D. Arkansas, E.D. Wisconsin, W.D. Wisconsin, and E.D. Missouri.

Tomorrow I’ll talk about the conclusions I drew from these numbers. But here I’ll briefly comment on a couple of the comments in the posts and some of the off-list emails.

1. Some folks asked if the political party, background, or age of the judge, or the identity of the appointing president was considered. It was not. The database I used did not provide this information, and it would have been a logistical nightmare to get it. A lame excuse perhaps, but I have doubts about the value of the information even if I could get it. I’m just not clever enough to put many of these variables to work – when a district judge is appointed, how much of the decision is the President and how much is the State’s Senators? Is a Massachusetts Republican the same as a Utah Democrat? I’m dubious that the results would shed enough light on the topic to make it worth the effort, although I know many people who would disagree.

2. A couple of comments raised the issue of sample election bias, a point I note briefly in the paper although not by that name. As I indicated earlier, this may be exactly right, but I don’t know how to tell if it is right. Perhaps it is a pure strength-of-the-evidence calculation by the defense (strong case judge, weak case jury), but putting aside the difficulty of measuring this, I still wonder. This kind of analysis was sometimes but not routinely mentioned by the defense counsel I interviewed. The flavor of their comments was that juries were presumptively better in all types of cases, regardless of the evidence strength. (And BTW, many of the defense counsel very extremely candid with me about their strategies.) But if I do a follow up on this article someday, I agree that more statistical modeling could offer real insights.

Thanks to all for your continued interest. Comments welcome,

The Fate of Harry Potter.--

As Ilya Somin mentions below, J.K. Rowling is hinting that Harry Potter (and another main character) may die in the final book in the series. I thought of blogging on this earlier, but decided to wait to see if Dave Kopel was going to do so, since in a long essay last July Kopel predicted both Harry's death and Professor Snape's:

In the end, I predict, Snape will sacrifice himself in order to destroy the snakelike Voldemort, whose personal symbol (the Dark Mark) is a snake tongue projecting from a death’s head skull. . . .

The first half of the prophecy [by Sybil Trelawny] is:

“The one with the power to vanquish the Dark Lord approaches. born to those who have thrice defied him, born as the seventh month dies . and the Dark Lord will mark him as his equal, but he will have power the Dark Lord knows not”

The second half of the prophecy explains, I suggest, why Harry must die in book 7, so that Voldemort can be destroyed:

and either must die at the hand of the other for neither can live while the other survives . the one with the power to vanquish the Dark Lord will be born as the seventh month dies.

“[N]either can live while the other survives.” On the face of it, the statement is absurd. Voldemort and Harry are both alive, and both survive, simultaneously. We tend to think of “live” and “survive” as synonyms. Yet if the two words are synonyms, the prophecy is incorrect.

It could be argued, if a person is not mortal, he is in a sense not truly living. The immortal creatures (that is, creatures which survive endlessly) which we have seen are ghosts and inferni. Each of them survives, yet neither of them lives.

Thus, as long as Harry survives, Voldemort is not mortal. Accordingly, Voldemort is, in a sense, not living. And perhaps, in some as-yet unknown way, Harry is immortal as long as Voldemort survives. . . .

The reason that Harry must die in order that Voldemort may “live” (as a mortal) rather than “survive” (as a deathless immortal) is that the final Horcrux is contained within Harry himself. . . .

“I am sure he was intending to make his final Horcrux with your death,” Dumbledore explained to Harry. (506).

But Voldemort’s death/Horcrux spell on baby Harry went terribly wrong, and blasted Voldemort’s body out of existence. Yet maybe Voldemort did, unbeknownst to himself, create that final Horcrux: in Harry Potter himself. The lightning bolt scar on Harry’s forehead is clearly more than a wound from the attack, since we know it magically links Harry and Voldemort. Could it also be the final Horcrux? And so for Voldemort to be destroyed with finality, Harry himself must die too.

Perhaps there’s some way to destroy only the Horcrux, without killing Harry. But from what we’ve seen so far, in order to destroy a Horcrux, such as the one contained in Tom Riddle’s diary, one must destroy the Horcrux-carrier too. (The Letters of Marque blog by Michigan Law student Heidi Bond contains an extensive discussion of the “Harry has a Horcrux” theory.)

For fans of the series, Kopel's detailed analysis of clues in the prior books is quite interesting.

Harry Potter May Die:

Harry Potter author J.K. Rowling is hinting that Harry could die in the forthcoming seventh and final volune in the series. If it does happen, many fans of the series are likely to be sad or outraged. When Arthur Conan Doyle killed off Sherlock Holmes, the outcry from fans was so great that the author eventually brought Holmes back. Perhaps the same thing will happen with Rowling if she does indeed end up killing Harry.

It is interesting that avid readers often identify so strongly with fictional characters that they seem more real \than most of the people we known in real life. Certainly, after reading the six previous Harry Potter books, I feel like I know Harry, Ron, and Hermione better than many of my real-world acquaintances.

In the article linked above, Rowling also suggests that at least two major characters that readers sympathize with will die in the seventh book. If you want to speculate on who they will be, comment away!

Meanwhile, see this website for some short forthcoming articles on "Harry Potter and the Law." And if you are a true law maven/Harry Potter fan, make sure to check out law professor Benjamin Barton's Michigan Law Review article on "Harry Potter and the Half-Crazed Bureaucracy."

Ken Jennings Blog: Ken Jennings, famous for his remarkable string of 74 consecutive victories on Jepoardy, has started a blog. At the end of a detailed post on options for writers who want to publish "unofficial" trivia books about copyrighted entertainment programs, Ken writes:
Wow, that was long and boring. Just what I wanted, to turn this blog into The Volokh Conspiracy during its very first week.
Check out more here.

Tuesday, June 27, 2006

Something's Rotten in the State of Executive Compensation:

I can't say that I follow the debate over executive compensation very closely, but I do follow the fortunes of homebuilder stocks. And I've noticed that CEOs of many of the major homebuilders (e.g. Hovnanian, KB Homes, Toll, Lennar), received many millions of dollars in compensation last year. It's true that their companies were very profitable last year, but that was a result of a general housing boom (read bubble), not because of the CEOs' great leadership. ALL of the housing stocks rose dramatically until July of last year (and all of them are down substantially this year). And though I haven't done a serious statistical analysis, there doesn't seem to be any relationship between whetherr or how much a particular housing stock outperformed its peer group and the level of compensation the CEO received.

I have no dog in the various intellectual and political battles over compensation policies. But something is wrong with the system of executive compensation when CEOs are compensated based on profits resulting from macroeconomic trends beyond their control, and not based on their companies' performance relative to their peers. (Something is also wrong when CEOs are ordering their companies to buy back shares on the open market while selling their personal holdings--they don't think the stock is a good value at X price for their personal portfolios, but the company should pay that much? and help prop up the price while the CEOs are selling?--but that's an issue for a future post, perhaps).

Limits on Federal Power After Raich:

Today, in United States v. Sullivan, the U.S. Court of Appeals for the D.C. Circuit upheld the conviction of Roger James Sullivan for "knowingly possessing child pornography images that were transported in interstate commerce via the Internet." A unanimous panel rejected Sullivan's claim that Congress lacked the power under the Commerce Clause to prohibit the purely intrastate possession of pornography. Relying upon the Supreme Court's decision in Raich v. Ashcroft, the court had no difficulty dispatching Sullivan's claim.

Not all three judges on the panel were comfortable with this result, however. Judge David Sentelle wrote a separate concurring opinion to note the confusion in current Commerce Clause jurisprudence, in partciular the conflict between the holdings of Raich and United States v. Lopez. Wrote Sentelle:

As appellant’s argument properly points out, Lopez limited the reach of the Commerce Clause to three categories. The first two are plainly not implicated by appellant’s conduct. Therefore, for the federal government to constitutionally regulate that conduct, it must fall within the category of “activities having a substantial relationship to interstate commerce . . . i.e., those activities that substantially affect interstate commerce . . . .” I am at a loss as to how purely intrastate possession of a product that has previously traveled interstate substantially affects interstate commerce. . . .

It is not at all plain to me that the present conduct falls within any of the three analytical elements [identified in Lopez. First, it is not clear that regulation of purely intrastate possession of a product is necessary to the regulation of the commercial activity which Congress seeks to regulate. Second, there is no relevant jurisdictional section. Third, if the purely intrastate and noncommercial possession of a product is regulable simply because some of the product may have previously passed in interstate commerce, then I see no stopping point.

In the end, however, I cannot fault the majority’s application of the later decision in Raich. I can, however, hope that the High Court in some further decision gives us some better method of reconciling its holdings on the extent of congressional power under the Interstate Commerce Clause.


Related Posts (on one page):

  1. The Herpes Theory of the Commerce Clause:
  2. Limits on Federal Power After Raich:
Scalia v. Roberts on Agency Deference in Rapanos:

Some commentators have zeroed in on a potential tension between Justice Scalia’s plurality opinion and Chief Justice Roberts’ separate concurring opinion in Rapanos over the issue of judicial deference to an agency’s statutory interpretation. This tension is interesting both because the Chief Justice joined Scalia’s opinion, and because it may tell us something about how the Roberts Court will approach future agency interpretations of regulatory statutes, both in the wetlands context as well as in future cases.

Justice Scalia’s opinion adopts a particular interpretation of the meaning of “waters” in the Clean Water Act. Further, as the Cato Institute’s Mark Moller observes, Scalia’s opinion stresses “that before an agency can reach local conduct under a comprehensive regulatory program, Congress must clearly authorize it to do so in the statutory text.” Chief Justice Roberts, on the other hand, suggests that the statute is sufficiently ambiguous for the Army Corps of Engineers to “enjoy[] plenty of room to operate in developing some notion of an outer bound to the reach of their authority.” Justice Scalia seems to know what the CWA means, and devotes much of his opinion to analyzing the relevant statutory text, whereas the Chief finds it fairly ambiguous. Are these two opinions really in conflict? I am not so sure.

Despite Justice Scalia’s focus on the text of the statute, his opinion avoids claiming that the precise scope of CWA jurisdiction is clear, and that no deference is due to the Corps of Engineers. To the contrary, his opinion notes that that "'waters of the United States' is in some respects ambiguous," and acknowledges that there is some "ambiguity" as to where land ends and water begins. All that is clear, according to the plurality, is that “the Corps’ expansive interpretation of ‘the waters of the United States’ is . . . not ‘based on a permissible construction of the statute.’”

While portions of the opinion appear to be offering an authoritative interpretation of the term “waters” in the CWA, that is not what the opinion does. In administrative law terms, Scalia’s opinion rejects the Corps of Engineers’ interpretation at step two rather than step one of the familiar Chevron analysis. Indeed, Scalia quotes the step two test – whether the agency has adopted a “permissible construction” of ambiguous statutory text - in rejecting the Corps’ position.

I believe this reading of the plurality opinion eases the apparent tension between it and the Chief’s concurrence. It also suggests that the federal government would retain substantial ability to go back and define “waters of the United States” in fairly expansive terms, even if it could not rely upon a fifth vote from Justice Kennedy for a broad interpretation of the Act.

Commenting on Chief Justice Roberts’ concurring opinion, Moller offers the following interpretation:

If the agency deliberates about its constitutional and statutory authority in a “limiting way” in the context of public notice and comment procedures, he would give the agency “generous” deference, even [if]the EPA would draw lines different (and more expansive) than those that Scalia’s plurality opinion draws.
I would agree. My point is that nothing in Justice Scalia’s opinion necessarily contradicts this view. While I have little doubt that Justice Scalia would continue to read the CWA quite narrowly, his opinion offers the relevant agencies more wiggle room that it might at first appear.

NOTE: I offer some additional thoughts on the Rapanos opinion in this NRO column .

More "Diversity" News--John Leo Column:

Leo, quoting this VC post, attacks willful defiance of the law by the ABA and others:

The most "massive resistance" in the name of diversity has been the broad and scandalous refusal to abide by California's Proposition 209, which bans preferences and quotas in state jobs, hiring and education. Mayors, city attorneys and even judges have avoided the clear wording and intent of Prop 209.... Same thing in Seattle after Initiative 200 banned preferences in Washington state. The mayor of Seattle was not swayed. He prepared a fresh batch of preferences, and a councilman said, "I'm not sure I care if we're in compliance" with the law. Whatever. It's only a law.

"Diversity" News: Federal Magistrate to Consider Racial Makeup of Law Firms in Choosing Class Counsel:

Minnesota Public Radio (temporary link):

The attorneys jockeying to lead the lawsuits against UnitedHealth Group Inc. will have to answer some questions first, beginning with: How many women and minorities does your firm employ?

On Monday, Magistrate Judge Franklin Noel ordered the law firms vying to be named lead counsel to answer that question by Saturday. He also ordered the attorneys to provide a 10-year history of "legal-ethical issues" for each attorney and that attorney's law firm. Noel wrote that the information won't decide who is lead counsel, "but it may be considered in making a decision regarding leadership in this case."

I don't have the text of the order, but it sounds like Judge Noel is engaging in double-talk; "I'll consider the racical makeup of your law firm, but because it's not the only factor, it won't be the decisive factor," which isn't a coherent statement.

UPDATE: More on this story:

Robert D. Klausner, who is part of the legal team trying to be lead counsel on behalf of a group of pension funds, said his law firm has gotten requests like this from cities, although not as often from judges. Los Angeles recently hired his firm for pension work, and Klausner said they had to document ethical issues, minority business practices, and whether it offers health insurance for employees.

"There's nothing disturbing or unusual or troubling in any way about it," he said.

Chief Judge James Rosenbaum, who will handle the UnitedHealth lawsuit, said he knew of Noel's order. He said federal judges in Minnesota have issued similar orders in a few other recent cases.

"We have made a decision that this is something we want to focus on," he said.

"Frankly sometimes when you walk into a courtroom on large cases of this nature, it looks like Minnesota might ... not have any people that are female, and might not have any people that are of other than Caucasian extraction."

Federal judicial rules instruct judges to pick the lawyer best able to represent class-action shareholders, said Allan Erbsen, who teaches federal civil procedure at the University of Minnesota Law School. Although a judge could argue that the racial and gender makeup of a law firm should be part of that equation, he said.

"The judge is running the risk that an appellate court might find that the judge considered criteria that the rule does not allow him to consider," Erbsen said.

I fail to see how the color of a lawyer's skin has anything to do with one's ability to represent a class, and it strikes me that a judge who gives an edge to a firm based on its racial (or gender) composition is obviously considering a criterion other than the best firm for the class's interests.

It may be nice, in the abstract, that Judge Rosenbaum and his colleagues have decided that it makes them feel good to know that they are appointing "diverse" firms, but don't federal judges have an obligation to follow, you know, THE LAW?

[If Judge Rosenbaum, Judge Noel, or any of their colleagues would care to explain why they believe that it's appropriate, legally and ethically, to "focus on" race and gender considerations in selecting class counsel, I'd be happy to post the explanation.]

Further Update: BTW, this is MUCH more problematic than an employer that chooses on its own initiative to hire based on race or gender. In that case, one can argue about whether such policies are fair to white men, but the employer itself also bears the cost (or benefit) of the hiring decisions it makes. In the class counsel situation, the judges are getting the benefits (the moral satisfaction of helping to "diversify" the profession), but the costs of using criteria other than "the best able to represent the class" are born by the class, not by the judges.

Yesterday's Campaign Speech Restrictions Case:

Rick Hasen, a leading election law scholar and author of the Election Law blog, has interesting thoughts here and here. Rick is more open than I am to the constitutionality of campaign speech restrictions, but I've always found his analysis to be thoughtful, fairminded, and interesting.

[Puzzleblogger Kevan Choset, June 27, 2006 at 12:32pm] Trackbacks
Name Rearranging II:

In April I posted this puzzle about rearranging letters in the name of someone in the news.

Today's challenge is very similar. A person who was in the news recently has first name that is 6 letters and last name that is 4 letters. Take the letters in the last name, add two letters and rearrange them all, and you get that person's first name. Who is it?

Chunky Soup Curse:

I was on vacation when Ben Roethlisberger had his motorcycle accident and so I didn't realize at the time that he was set to film his first Chunky Soup commercial the next day. ArmchairGM has the full history of the curse and Big Ben's continuation of the legacy. Perhaps the fact that the injuries turned out to be less serious that originally expected just shows that this was a merely a warning from the Chunky Soup gods that Ben reconsider that endorsement deal.

[Andy Leipold (guest-blogging), June 27, 2006 at 10:03am] Trackbacks
Judge vs. Jury Acquittals, Day 2

Wow. Some very thoughtful and perceptive comments were posted yesterday on the basic question of why federal judges are more likely to acquit than federal juries. This is fun.

Let me pick up on a few of the points that people raised in their posts, to show what the data revealed. These figures are based on a study of about 77,000 federal criminal trials completed between 1989 and 2002. Those who read yesterday’s post will recall that I am trying to figure out both why judges are more likely to acquit than juries, and why the judicial conviction rate dropped sharply between the late 1980s and the early 2000s.

Several folks hypothesized that the type of crime involved -- violent, property, drug, etc. -- might explain the disparity. Perhaps certain types of crimes are both steered toward a particular factfinder and are particularly likely to end with an acquittal. For example (I speculated), financial and regulatory crimes might be directed toward judges because both sides worry that jurors will misunderstand the evidence, and perhaps it is also the complexity of these cases that make them hard for the government to win. Or perhaps defense counsel avoid juries in violent crime cases, and so on.

There may be something to this, but the figures don’t show much of an effect by case type. I looked at six crime categories: violent, property, drug, immigration, regulatory (crimes involving customs, social security, the mail, etc.) and public order offenses (a group that includes primarily traffic offenses – really – and guns). Two things became clear: (1) juries always convict more than judges, no matter what category of crime, usually by 15 to 30 percentage points, and (2) defense counsel prefer juries to judges in all types of cases. In only one category did the percentage of bench trials come close to half: 45% of public order trials are tried by the court. Interestingly, judges convict in only 47% of the public order cases, compared to an 83% conviction rate by juries.

Another line of posts offered the insight that the “conviction gap” might be explained by the strength of the evidence. To paraphrase Judge Posner, perhaps innocent defendants want judges because they worry about a mistake being made, while guilty defendants want a jury trial, hoping a mistake will be made. I think this explanation has great intuitive appeal.

But two brief points on this. First, it is darn hard to measure the strength of the evidence, at least on a large scale. The best indicator we have of the case strength is the outcome, but that leaves us chasing our tail if we are trying to evaluate the outcomes. This doesn’t make this explanation wrong, it is just hard to know if it is right.

Second, if strength of the evidence explains a big piece of the conviction gap, we still need an explanation for why the jury conviction rate has remained steady while the bench rate fell significantly over the period studied. So while I like this explanation very much, I worry it is still speculative and incomplete.

I have left out a lot of detail, much of which I hope is provided in the article (on SSRN, at and perhaps in other posts later this week As always, questions and comments welcome at

Americans and Soccer, continued

Two brief responses to Todd's responses to my comments on Americans and soccer. He writes: "Americans don't like soccer because Americans don't like soccer. The sports embraced by a given society/country/culture are largely conventional and traditional."

That's what someone once called "a nice theory, slain by an ugly fact." Within the last 30 years, Asians have gone from being soccer-indifferent to being possibly the most passionate fans on the planet -- FIFA had to disable all incoming traffic from Korea onto its website after Korea was eliminated from the World Cup because it was being inundated by angry fans! And the Thais and Malaysians make the Korena fans look tame. And the same, more or less, has happened in Africa, too.

Second, Todd writes

"it should be skill, not chance that decides games, and this seems to be a universal sentiment. One problem with the World Cup is that the talent levels are so compressed these days that almost every game comes down to a single goal and thus one referee's call (a penalty kick or quetionable red card) can thus prove decisive in a game."

Um, wrong. Two billion people are going to watch the World Cup final; it is a little odd that you talk about the "universal sentiment" here, or the "problem with the World Cup." The final of the World Cup is going to be decided, like all great soccer games, on a combination of incredible skill, team desire, and luck. You don't have to watch, if you don't like it -- fine by me. I think many Americans feel as you do -- that's OK, too. But don't tell me what the universal sentiment is!

I'm outta here -- Brazil-Ghana is starting soon. [If this game were decided on skill alone, 46 people would watch it; the Brazilian team is so skillful they couldn't possibly lose a single game, ever. But in fact, they might lose ... and I will be joined by 500 million folks in front of the TV to see if this is the game in which it happens]

Response to Kidnapping of Israeli Soldier Gilad Shalit:

Israel is poised to launch a major military operation in Gaza, which threatens to undo its withdrawal from that territory, and cause major civilian casualties (which, in fact, would serve the interests of the factions involved in the kidnapping), not to mention further casualties among IDF forces. What if, instead, Israel informed the kidnappers that if harm comes to Shalit, Prime Minister Olmert will call on the Knesset to immediately institute the death penalty for terrorist murders, and apply it retroactively? Instead of securing the release of terrorist prisoners, several dozen murderers in Israeli prisons (who richly deserve it, anyway), connected by political or family ties to the kidnappers will be executed. I'd much rather see the lives of guilty terrorists threatened than IDF soldiers and Palestinian civilians.

Relatedly, Israel should institute the death penalty for terrorism, as keeping leading terrorists in jail has for decades given their compatriots an incentive to hold hostages in the hopes of securing their release, and Israel has frequently capitulated to such demands, with some of the released terrorists later committing further atrocities. I fail to understand what purpose is served by the consistent repetition of this scenario.

Americans and Soccer:

Many electrons, and some ink, have been spilled over the past few weeks to explain why Americans don't watch/like soccer--too few goals, hands v. feet, diving, etc. To me, quite frankly, most of the hyptheses seem like ex post rationalizations rather than explanations, both on their own internal validity as well as the presence of counterexamples. Baseball and football certainly are bizarre in their own ways, baseball is low-scoring and has a long tradition of cheating and gamesmanship (even pre-steroids). Football may be one of the most peculiar and unique sports in the world, with the constant play interruptions for huddles and the like. So, as I said, I think most explanations are actually just rationalizations that aren't generalizable.

I'm certain this is not terribly original, but my hypothesis is quite simple--Americans don't like soccer because Americans don't like soccer. The sports embraced by a given society/country/culture are largely conventional and traditional. For the same reason that Germans don't like baseball (and the Japanese do), and the Brazilians don't like football. Sports, as a spectator event, are essentially social network goods and preferences for one sport over another are almost purely conventional. The joy of sports is watching it together as a community and discussing and arguing about it together. As such, almost any sport will do to serve that function. People routinely gather together to watch sporting events, both live and in person. We generally don't gather together to watch other things on television, except the rare tv series finale or election night news coverage (another community event, of course).

I don't think that the rising and falling fortunes of various sports has much to do with the intrinsic value of one sport over another, except at the extremes. All sports are inherently a completely arbitrary test of skill. You just create a set of arbitrary tasks and then the athletes perform them to the best of their ability. Why is NASCAR so much more popular than Indy racing? Why is Indy racing more popular in some subsections of the country? I can't see how the intrinsic differences between the two sports makes a difference. Why Australian Rules Football, curling (as in the Winter Olympics), or Irish hurling?

As an aside, this is precisely the point that the Supreme Court failed to grasp in the Casey Martin case a few years ago--why do you have walk when you play professional golf? Because it is part of the sport. Why? Just because it is. Why a 10 foot hoop in basketball rather than 11 or 12 feet? Why 60 fee 6 inches to the pitcher's mound? Why 18 holes in golf? Why 500 miles for the Indy 500? Just because, that's the arbitrarily chosen task that comprises the sport and to ask "why" misses the entire point.

The way to think of sports, I think, is like fashion (I'm sure this isn't original to me). The rising and falling interest in sports over time is just a matter of changing tastes, rather than one sport or another being better or worse than another. Having just read Jeremy Schapp's "Cinderella Man" I was stunned to learn how popular boxing was in the 1930s compared to all other sports. Babe Ruth's scandalously large contracts during that era were a small fraction of the amount that Jack Dempsey would pull down for one fight. Today, boxing is a borderline fringe sport. Ditto for horse racing. The Olympics may or may not be in a permanent death spiral--I suspect that it is too early to tell. Hockey has gone from one of the country's "four major sports" to essentially the same level as Major League Soccer, and I think the NHL strike just expedited a trend that was already underway. It is now standard to refer to the "three major sports" in the U.S. Casual sports fans used to be expected and able to watch and politely talk about the Stanley Cup playoffs; today that is no longer the case.

So, the World Cup is becoming more popular because, well, it is becoming more popular. For whatever reason, one can speculate. But I'm guessing it has little to do with the intrinsic merits of soccer and more to do with the fact that it is becoming part of the lexicon of the casual sports fan, perhaps because it is fun to be wrapped up in an event of such global proportions. But, for instance, I don't expect much crossover from the World Cup's popularity to MLS. In the sense I am thinking of it, MLS is essentially a different sport from the World Cup because it is wrapped in a different social network, not because it is somehow a different sport.

I had an interesting conversation with someone the other day who had been watching the World Cup with some degree of enthusiasm and interest. I asked him to name three guys on the DC United roster other than Freddy Adu. He named zero. He has watched the World Cup but has no plans to ever attend a DC United game or to watch DC United on tv (even though DC United is 9-1-5 this year and playing some great soccer). So while I'd like to believe that others will come to share my enthusiasm I am not optimistic--except in the Spanish-speaking community, from whom I consistently receive thumbs-up whenever I wear my DC United jersey.

One final thought--at root, sports must still be a game of skill, no matter how arbitrarily chosen the task. David P. suggests that chance in the form of referee's calls is part of the appeal of the game. I don't think so. I think most fans deplore the impact of officiating in this World Cup and its impact on games. I was living in Italy in 2002 during the World Cup and my sense was that they didn't appreciate the role of questionable refereeing in determining outcomes, even before losing a game riddled with questionable calls. I think that soccer fans tolerate it because they always have and there does not seem to be sentiment at the highest reaches of the sport to try to change it.

In the end, it should be skill, not chance that decides games, and this seems to be a universal sentiment. One problem with the World Cup is that the talent levels are so compressed these days that almost every game comes down to a single goal and thus one referee's call (a penalty kick or quetionable red card) can thus prove decisive in a game.

If one wanted to think about how to reform the system there seems to be two possible approaches. One approach would be to try to increase accuracy, such as by adding a second referee on the field--it is not plausible that one referee can competently cover the entire field today when the players are so fast and strong. US basketball moved from two to three referees a decade or so ago and--somewhat counterintuitively--empriical evidence finds that the number of fouls called in games actually fell. The reason is because that more referees dramatically increased the probability of detection, so players became less likely to try to get away with something.

A second approach would be to try reduce the impact of referee's decisions on games, and especially red cards, such as by allowing suspensions within the game calibrated more closely to the severity of the offense (e.g., something like a "penalty box" with 5 or 10 minute suspensions, rather than red cards). It is also worth at least considering, I think, whether to allow the use of instant replay for situations such as the end of the Italy-Australia game yesterday (althought I suspect instant replay would be a bridge too far for soccer).

A final, final thought--I do give the soccer bureaucracy a great deal of credit for one innovation adopted about 10 years or so ago, which is to change the scoring system to award 3 points for a win and only 1 for a tie (it previously was only 2 points for a win). This was a response to a perceived willingness of teams to prefer the risk-averse strategy of playing for ties and to encourage going for the win, and indirectly, to play attacking, offensive-minded soccer. Along with the addition of the three-point basket in basketball, I think this was an ingenious way of improving the game by changing the incentives of teams, rather than to change the rules in such a manner as to try to directly change the game. The emphasis on giving more yellow cards during this world cup, regrettably, seems to have been a much less elegant innovation.

Americans, Soccer, and Scoring con't:

Bobo makes some very interesting points in a comment on my earlier posting about soccer referees. He/she writes:

Problems I, as an American, have with soccer:


3) Too much randomness. Scoring just seems too "lucky." . . . So much has to go right just to make a shot go in. . . . if I get 3 clear shots on goal and score 1, am I really better than the team that gets 4 shots but doesn't score any?

4) The infrequency of scoring. Not because "we Americans need action", and "action = scoring". But because, like someone above said, 1-0 is a blowout, and 2-0 is the beating of a lifetime. Basically if I'm losing by 2 with 10 minutes, I have such a small chance of winning that it's not even worth playing. There's no suspense. Game's over. . . .

More evidence, I think, that the things soccerphobes dislike about the game are the very things that fans love about it.

Re the infrequency of scoring: Nick Hornby, in his wonderful soccer memoir "Fever Pitch" (highly recommended), has a wonderful list of the ingredients that go into making a truly great soccer game, the kind of out-of-body ecstasy that soccer can induce and which all soccer fans understand. Some of the ones I recall (I don't have the book with me): home game for your team; home team wins, 3-2, after trailing 2-0; outrageously bad penalty call against your team [followed by a missed penalty kick by the other side].

So it is absolutely true: if you're losing a soccer game 2-0 with 10 minutes to go, you have a mighty slim chance of winning, and you are almost certainly going to be walking out of the stadium depressed and disappointed. But . . . it does happen. Teams do come back. And if this is the game in which it happens, you will never, ever, forget the experience of watching it. It will be roughly equivalent to having sex with all of the other fans, simultaneously.

In 1999 Man. U scored two goals in the last 4 minutes of a Champions League Final -- unlike the World Cup final, which will be watched by ten times more people than watch our "Super Bowl," the Champions League final is watched by only 4 or 5 times more people than watch our Super Bowl. It's kind of a big deal. I'm not a Man U. fan -- but I cannot even imagine what it must have been like to be a Man U fan in that stadium that night.

You might have to watch many, many games before it happens. You may go a lifetime and only experience it once or twice -- or, god forbid, never. That's why you go to a lot of games -- to be sure to catch it when it happens.

When I first discovered soccer, I, too, came up with lots of great ideas for how to get more scoring. Widen the penalty box -- make the net bigger -- etc. etc. But then it hit me. Soccer is the great team sport because it is a test of team will, and it is a test of team will precisely because it is so damned hard to score a f**king goal. You have to run down that field, time and time and time and time again, knowing full well that there's "practically no chance" anything will come of it. Again and again and again. You might have to do it for ninety minutes and get nothing, and then you have to do it again in the next game. It is exhausting, physically and, even more, mentally. But you have to keep doing it, because the moment you stop doing it -- the moment anyone on the team starts to think about not doing it -- you lose.

Character and belief and determination and will become very, very transparent in these circumstances, and soccer, more than any other sport I know of, is about these things. Scoring is incredibly difficult -- but if you let yourself believe that you can't score, you will not score. It's why you'll see soccer fans sometimes giving their team a standing ovation after a 0-0 draw -- because character and determination and belief are very transparent, and can be detected even when no goals have been scored (perhaps best, actually, when no goals have been scored).

And not only is scoring a goal incredibly difficult, just as a matter of technique and athletic skill -- did you see the goal that Argentina's Maxi Rodriguez scored against Mexico to win that game??? I know people always say that hitting a baseball is the hardest thing to do in sports, but come on ... try this at home: on the run, take a ball coming towards you from 40 yards away onto your chest, bring it down and before it hits the ground smack it into the upper corner of the net, 30 yards away, with your off-leg (i.e, righties have to do this with their left leg, and vice versa --- it even has an element of total randomness to it. That's life, as they say.

NBA Draft Promises:

Interesting post by Mike McCann on the question of whether a basketball player could enforce an oral promises by an NBA team to draft him if he enters the NBA draft early. My initial intuition is that this is best enforced by extralegal forces, such as the team's and management's reputation, and that any promise would be subject to an implicit condition that the team could change its mind depending on what happened during the draft. Nonetheless, there is clear detrimental reliance here that is induced by the team, and as a result, at least some intent to be bound.

Interesting question, and it isn't obvious to me how it would be resolved. Mike suggests that so far the extralegal sanctions appear to have been strong enough to cause these promises to be enforced.

The Cult of "International Law":

I've noticed in a variety of contexts that there are some rather well-educated, articulate individuals out there who have what seems to me to be a fanatical, quasi-religious belief in "international law", and the idea that it should trump any other conflicting consideration. In the constitutional law field, this is reflected in the argument that the president and the courts should ignore domestic law and the Constitution if they conflict with international law--even if the United States isn't a party to any binding international agreements on the particular subject at hand.

On a more personal level, I've had a few email conversations with Volokh Conspiracy readers along the following lines:

Reader: Israel is illegitimate because it violated international law by not allowing Palestinians who fled Israel during the War of Independence to return.

Me: I'm not an expert on international law [UPDATE: For the record, and in response to some of the comments below, I'm not conceding that Israel did indeed violate international law in this matter. I don't know anything about it, though comments below and an email I received cast grave doubt on the matter. But I didn't argue the point in my correspondence] but I do know something about Israeli history. There is no practical way Israel could have permitted the return of most of these refugees. First, the Palestinian and broader Arab leadership remained committed after the war to Israel's destruction. The Arab community within Israel's border had participated in the war against Israel. The immediate result of allowing hundreds of thousands of generally hostile Arabs back into Israel (which had well less than a million Jewish residents at its founding) would have been constant intercommunal violence and ultimately another war. You can't expect Israel to have committed national suicide.

Reader: International law says Israel had to do it anyway.

Me: But Israel was busy resettling hundreds of thousands of Holocaust survivors, as well as hundreds of thousands of refugees thrown out of Arab countries, many of whom had to live in tents for years. Israel simply didn't have the resources to deal with those problems and also deal with trying to resettle hundreds of thousands of hostile Arabs.

Reader: Doesn't matter, Israel was violating international law.

Me: But most of the refugees moved only a few miles from their original homes, to places where the culture and language was often indisinguishable from their hometowns. It was like moving from Brooklyn to Queens. Surely the Arab countries that had participated in the war against Israel, and had egged on the Arabs of Palestine to launch a war against the Jews, should have simply funded the resettlement of the refugees. Indeed, even the money that has gone to UNRWA over the years from the West would have more than sufficed. Instead, the Arabs preferred to use the refugees as a propaganda tool, and canon fodder, against Israel.

Reader: All well and good, but Israel was in the wrong, because it violated international law.

I'm not exaggerating when I say that I've had several correspondences along these lines, none challenging the points I raised (though not necessarily assenting, either), but simply arguing that any such points are completely irrelevant, because all that matters is whether or not Israel violated international law.

It has struck me that debating such people is just as frustrating and unproductive as arguing with a religious believer about some matter within the scope of his religious belief--just substitute "God says so" for "international law says so."

The point of this post is not to defend the points I made in my email correspondence, but to ask informed readers about when and how "international law" gained such cult-like status that well-educated people believe that merely invoking it (or their interpretation of it) is sufficient to settle even the most nuanced and contentious debates, that it should always trump domestic law, etc. Please restrict your comments to either explaining, or, if you are so inclined, defending, this phenomenon. (Or is "international law" largely invoked to try to restrain the actions of the U.S. and Israel, but largely ignored more broadly?--e.g., I haven't heard of any other nation's besides Israel's legitimacy being questioned because of past or even present real or imagined violations of international law.)


Monday, June 26, 2006

Ukraine Advances in the World Cup:

Ukraine, the homeland of the Volokh clan (and of several of my ancestors), has advanced to the quarterfinals of the World Cup, by far their best result ever. If they win their next game, they will equal the best showing ever by the old USSR team (which could draw on a much larger talent pool, including Russia, Ukraine, and the rest of the Soviet empire).The Ukrainian team defeated Switzerland on penalty kicks after a scoreless game.

Despite the euphoria in the Volokh household, penalty kicks are a very poor way to break ties in a soccer game. It's much like deciding the outcome of a tie game in basketball by a free throw shooting contest. In my view, a far preferable solution is to require the teams to play until one scores a "sudden death" goal, as is done in the National Hockey League playoffs. The argument against this approach is that the game might go on on interminably, exhausting the players and hurting the winning team in the next round. However, a team that could not defeat its opponent in regulation time deserves to be disadvantaged in the next round relative to an adversary that did. Moreover, as experience in the NHL, NFL and other sports shows, sudden death overtime is tremendously exciting and helps stimulate fan interest.

But if excessively long games are a real concern, the rules can be altered to reduce the number of players for each side during overtime (e.g. - going from 11 to 10 after 30 minutes of overtime, 10 to 9 after the next 30, and so on). Each reduction in personnel would increase the chance of a goal and make it less and less likely that the tie will continue. And a 9 on 9, 8 on 8, or even 5 on 5 soccer game is much closer to ordinary play than taking a penalty kick, thus eliminating the anomaly under which a game is decided by a competition vastly different from normal nature of the sport.

Former VC Blogger Takes Center Stage: Michelle Boardman, previously an occasional co-blogger here at the VC and currently a Deputy at DOJ's Office of Legal Counsel, will be in the hot seat tomorrow defending the Administration's use of Presidential signing statements before the Senate Judiciary Committee. The hearing should be well worth watching.
Gun Control in French-speaking Africa. Le contrôle des armes en Afrique francophone

A new report from the Independence Institute reports on gun control developments in Rwanda, Burundi, Ivory Coast, D.R. Congo, and ECOWAS in the last several weeks. The report is in both English and French. En francais et anglais.

Scalia v. Alito:

Today's decision with the most interesting lineup is undoubtedly United States v. Gonzales-Lopez. In this case, the court held, 5-4, that if a trial court erroneously deprives a criminal defendant of his choice of defense counsel, the defendant is entitled to a reversal of his conviction under the Sixth Amendment. Justice Scalia wrote the majority, for himself and Justices Stevens, Souter, Ginsburg, and Breyer. Justice Alito dissented, writing for himself, the Chief Justice, and Justices Kennedy and Thomas. The opinions are here.

Related Posts (on one page):

  1. Scalia v. Alito:
  2. Interesting Lineups:
Money and Speech:

This morning's campaign speech case from the Supreme Court, Randall v. Sorrell, leaves me with little new to say, which is fortunate because I have little time right now to say much about it. Still, Justice Stevens's repetition of the old saw that "it is quite wrong to equate money and speech" struck me as mistaken enough to be noteworthy. (The occasional argument of some critics of campaign finance law that money is indeed speech is equally mistaken.)

The reason that the Court struck down the law here — which, among other things, would have limited a candidate's total spending for Vermont state representative races to $2000 for both the primary election and general election put together — is not that money is speech. Rather, it's that restrictions on spending money to speak are restrictions on speech, and "money is speech" is, I think, a misleading way of expressing this claim.

Just consider some analogies. Would we say "money is abortion"? I doubt it, but a law that banned the spending of money would surely be a serious restriction on abortion rights (whether or not you think that the Court was right to recognize such rights). A law that capped the spending of money for abortions at a small amount, far smaller than abortions often cost, would likewise be a burden on abortion rights, and dismissing this argument as "it is quite wrong to equate money and abortion" would be unsound.

Likewise, we wouldn't say "money is education," or "money is lawyering." Yet a law that capped private school tuitions at $2000 (not just limited the amount of government-provided scholarships, but capped private spending by parents for tuition) would be a serious, likely unconstitutional, burden on the right to educate one's child at a private school. Likewise, a law that barred wealthy defendants from spending more than $20,000 — or even $200,000 — for assistance of counsel would violate the Sixth Amendment. Even if for some reason you thought that these laws should be upheld, the response that "it is quite wrong to equate money and [education / lawyering]" would be an unsound response.

Similarly, we wouldn't say "air travel is speech," or "computing power is speech." Yet surely a law that would limit the use of air travel or computers in political campaigns would be understood as a serious restriction on speech.

I also have differences with other aspects of Stevens's opinion, as well as with other opinions, including the Thomas/Scalia concurrence, but I lack the time to discuss them here. For now, I just thought that "money is speech" / "money isn't speech" is a common enough catchphrase in these debates (going all the way up to the Supreme Court) that I thought it might be helpful to speak briefly about it. For my criticisms of the Thomas/Scalia position, see Part III of this article.

Note also this amusing summary of the opinions, by Allison Hayward (Skeptic's Eye).

Supreme Court Sharply Divided Over Death Penalty: I have a new post on the Supreme Court's decision this morning in Kansas v. Marsh over at my solo blog.
Usage Futures:

It occurs to me that it might not be too long before the phrase "phone call" disappears -- more and more people aren't using "phones" for their voice communications as much these days, with blackberries and Skype and all the rest. Though I suppose the phrase could survive and end up in the "hey, i just found out why we call it X" category down the road.

It Depends on the Meaning of "Fall":

How to raise the LSAT's of a law school's "Fall entering class"? Simply admit those with lower scores into your "Summer" class. Tom Bell has the story at Baylor.


And a similar story at University of Florida.

[Andy Leipold (guest-blogging), June 26, 2006 at 10:13am] Trackbacks
Acquittal Prone Federal Judges

Many thanks to Eugene for inviting me to make some comments on some recent research.

A few years ago I noticed in the Sourcebook of Criminal Justice Statistics that federal defendants who stand trial are much more likely to be acquitted in a bench trial than by a jury. This seemed odd to me – I had always assumed the opposite was true. So I studied government records for federal trials between 1989 and 2002 and found a number of surprising things.

First, I found that the gap between bench acquittal rates and jury acquittal rates was quite large: over the 14 years I studied, the average conviction rate in jury cases was 84%, while judges convicted slightly more than 50% of the time. Second (using other data), I found that this gap was a recent phenomenon. Between the early 1960s and late 1980s, the conviction rates for judge and jury was roughly the same; the 20 years before that, judges actually convicted much more often than juries.

So the goal was to try to explain why this “acquittal gap” between bench and jury exists, and secondarily, why it had grown so large since the late 1980s. To make sure I wasn’t stumbling around in an academic fog, I started by interviewing two dozen federal prosecutors and defense counsel to see if their instincts were the same as mine. They were: of the 24 lawyers I spoke to, only a very few knew or guessed that judges are more likely to acquit. The rest were mildly to strongly certain that juries were more favorable to the accused.

During the coming week discuss some of the variables I looked at -- type of case, seriousness of charge, type of defense lawyer, strength of the evidence, etc.), as well as some of the conclusions I drew. Questions, comments, and criticisms are welcome, The full paper can be found at 83 Wash.U.L.Q. 151, from SSRN at

Climate Change Goes to the Supreme Court:

Among the five cases granted certiorari this morning was Massachusetts v. EPA, a challenge by several states and environmental groups to the EPA's refusal to regulate greenhouse gases under the Clean Air Act. The case involves interesting standing and statutory interpretation issues, about which I hope to have several posts in the coming weeks.

Background materials, the lower court opinions and Massachusetts' cert petition can be found here. The Justice Department's brief in opposition is here. Between this case and the New Source Review case already before the Court, next term promises to be a very important one for environmental law.

Acquittal-Happy Federal Judges?

A few months ago I read an article by Prof. Andy Leipold called Why are Federal Judges so Acquittal Prone?, and found it very interesting, so I invited Andy to join us for a week to post about his findings.

Andy is an accomplished criminal law scholar, and Professor and Co-Director of the Program in Criminal Law and Procedure at the University of Illinois College of Law. I hope you find his observations as intriguing and eye-opening as I did.


Sunday, June 25, 2006

Senator Bob Byrd - From Exalted Cyclops to King of Pork:

Washington Post reporter Michael Grunwald has an interesting article on West Virginia Senator Robert Byrd, onetime "Exalted Cyclops" of the Ku Klux Klan and currently the longest-serving senator in American history. The article summarizes what the author delicately refers to as Byrd's "discomfort with racial issues" (which, as the article points out, continued long after he left the Klan in the 1940s, and even after he eventually denounced the KKK and apologized for having been a member). It also makes some worthwhile points about Byrd's later career as the Senate's King of Pork:

[Byrd's] top priority hasn't changed in a half-century: shoveling pork into his home state.

Is that so terrible? Byrd once promised to be "West Virginia's billion-dollar industry," and he has more than kept his word, dotting his state with the Robert C. Byrd Bridge, the Robert C. Byrd High School and the Robert C. Byrd Center for Legislative Studies, where academics can research how Congress came to give West Virginia six technology centers, two community centers and about two dozen additional projects named for Robert C. Byrd. . . Byrd savors his reputation as the King of Pork. His memoir details hundreds of his earmarks in loving detail, along with gleeful tales of moving Navy and Coast Guard offices to his landlocked state. Appropriately, he moved the Bureau of the Public Debt to West Virginia, too.

That is why Byrd was named "West Virginian of the 20th Century," and is revered as the savior of an impoverished state. But even after Byrd's half-century of largesse — new prisons, new labs, new subsidies for fish farms, dairies and steelmakers — West Virginia is still an impoverished state, ranked 49th in per-capita gross state product. "Those earmarks haven't solved West Virginia's problems," says Michael Hicks, an economist at Marshall University in Huntington, W.Va. "I'm trying to be careful here — I like my job — but after 40-odd years, we're still at the bottom of every economic indicator." Byrd was ahead of the curve on welfare reform, complaining as early as 1965 that "relief has become a way of life for some people." But he never noticed that relief could become a way of life for his state. West Virginia is now a ward of the federal government, dependent on Robert C. Byrd.

The kind of Jim Crow racism that Bob Byrd supported for many years is today largely a relic of the past, even if less virulent and more subtle forms of racial prejudice persist. But the culture of porkbarrel spending that he exemplifies is alive and well in both parties on Capitol Hill. Perhaps the sorry history of West Virginia can help persuade people that there are better ways to achieve prosperity than becoming a "ward of the federal government" dependent on the likes of Senator Byrd.

Pushing Philly in New York:

As a Philadelphia native, I was tickled by this series of mock ads designed by advertising students to encourage New Yorkers to move to Philadelphia (described here). (Link via Concurring Opinions.)

Rep. King Wants NYT Prosecuted:

Representative Peter King (R-NY), Chairman of the House Homeland Security Committee, believes that the Justice Department should look into prosecuting the New York Times for its stories on classified government anti-terror programs, such as this article on federal monitoring of international financial records. Appearing on FoxNews Sunday this morning, Rep. King said:

To me, the real question here is the conduct of The New York Times. By disclosing this in time of war, they have compromised America's antiterrorist policies. This is a very effective policy. They have compromised it. This is the second time The New York Times has done this.

And to me, nobody elected The New York Times to do anything. And The New York Times is putting its own arrogant, elitist, left-wing agenda before the interests of the American people.

And I'm calling on the attorney general to begin a criminal investigation and prosecution of The New York Times, its reporters, the editors that worked on this, and the publisher. We're in time of war, Chris, and what they've done here is absolutely disgraceful. I believe they violated the Espionage Act, the Comint Act.

This is absolutely disgraceful. The time has come for the American people to realize and The New York Times to realize we're at war and they can't be just on their own deciding what to declassify, what to release.

If Congress wants to work on this privately, that's one thing. But for them to, on their own — for them to decide — for the editor of The New York Times to say that he decides it's in the national interest — no one elected them to anything.

Appearing with Rep. King, Senate Judiciary Committee Chairman Arlen Specter (R-PA) was unwilling to jump on the press prosecution bandwagon.

I don't think that the newspapers can have a totally free hand. But I think in the first instance, it is their judgment. The editor of The New York Times was quoted as saying that they had considered the government's request not to publish and had made their decision that it was in the public interest.

I'd be prepared to criticize The New York Times if I felt it warranted after knowing a lot more about the facts, but on the basis of the newspaper article, I think it's premature to call for a prosecution of The New York Times, just like I think it's premature to say that the administration is entirely correct.

The full transcript is here. Additional coverage is here.

The Origins of RFK Jr's Election Story:

Today's NYT profiles Robert F. Kennedy Jr., covering his environmental activism and his recent foray into electoral politics. Among other things, it contains this account of what inspired his Rolling Stone article alleging Republicans "stole" the 2004 Presidential election.

Mr. Kennedy spent Christmas skiing in Sun Valley, Idaho, at the home of Ms. David and her husband, Larry David, the "Seinfeld" creator and "Curb Your Enthusiasm" protagonist. Mr. David urged him to read a book on the 2004 election by the news media critic Mark Crispin Miller.

Mr. Kennedy did, and a few days later he was skiing with the Rolling Stone publisher, Jann S. Wenner, an old friend and Sun Valley homeowner. Mr. Kennedy suggested that Mr. Wenner commission a story on the "stolen election." Mr. Wenner said he would, provided Mr. Kennedy wrote it. He had written a much-discussed and much-challenged story for Rolling Stone last year linking childhood vaccines and a rise in autism.

After some hesitation, Mr. Kennedy said, he agreed to write the election article. Since it was posted on Rolling Stone's Web site on June 1, the Web has been ablog with a split between those who believe this is the biggest unreported story ever and those who think it's old news, discredited long ago. Mr. Kennedy said it's hard to prove that any election had been "stolen."

"If you're looking for proof and certitude, you're not going to find it," he said. Either way, Mr. Kennedy said he is committed to stoking the outrage of 2004, wherever it leads. "This is going to remain one of my central concerns for a while," he said, adding, "America should be indignant." But is it, beyond certain liberal airwaves and blogs? Congress has not exactly been rocked with speeches on the matter or with calls for investigations.

In a phone interview, Mr. Wenner said that John Kerry, the big loser in 2004, "does not question the validity of the piece," hardly a signal of outrage.

Senator Christopher Dodd, the Connecticut Democrat and a longtime advocate of electoral reform, called the article "tremendously compelling." But not compelling enough to talk about it: Mr. Dodd's comments were relayed in a statement from his office.

UPDATE: Tom Maguire comments on the NYT story here.

Sunday Song Lyric: Redheadlaw7 is no longer a redhead. Having returned to being a brunette, she might be more accurately referred to as "suedehead." "Suedehead" is also a song on Viva Hate, Morrissey's first (and perhaps best) solo album. Viva Hate also featured "Every Day Is Like Sunday" -- a song that has "Sunday Song Lyric" written all over it. But not today. My favorite song on the album was always "Alsatian Cousin," so it's the Sunday Song Lyric for today.
Were you and he Lovers?
And would you say so if you were?
On a forecourt
On a Friday
Passing my way

Were you and he Lovers?
And if you were, then say that you were
On a groundsheet
Under canvas
With your tent-flap
open wide

A note upon his desk
"P.S. Bring Me Home And Have Me!"
Leather elbows on a tweed coat
Is that the best you can do?
So came his reply:
" . . . but on the desk is where I want you!"

So I ask (even though I know):
Were you and he Lovers?