Saturday, July 15, 2006

Missing Pieces in Immigration Stories

In my latest media column, I point out how the Denver Post falsely portrayed Georgia State Senator Sam Zamarripa, who is that state's leading advocate for illegal aliens. Also, how the Post missed the research showing the complexity of the issue of illegal aliens and Medicaid. Plus a suggestion that the Rocky Mountain News drop the mean-spirited cartoons of Dan Asmussen of the S.F. Chronicle.

Letter to the ABA Journal re Thimerosal and Autism:

Here's a letter I wrote to the ABA Journal:

I am appalled by the credulous and sloppy article in the July 2006 ABA Journal [not online] discussing litigation over the purported link between autism and thimerosal. Reporter Wendy N. Davis is simply incorrect when she writes that "many scientists have come to believe that thimerosal may cause autism" and that "scientists are divided" on the issue. In fact, only a fringe group of junk scientists believe this, and the thesis that thimerosal in vaccines causes autism is directly contrary to reams of data [e.g., here] showing that removing thimerosal from vaccines has no effect on autism rates. Apparently, however, Ms. Davis was too lazy to actually research the issue herself, and instead relied on what she terms "published accounts" of a 2001 study, along with a much-debunked [e.g., here] article in Rolling Stone (of all places) by attorney Robert F. Kennedy, Jr. The ABA Journal can and should do a lot better than this.

I should note that I have no relationship of any sort with any of the players in the thimerosal litigation.

I was especially saddened to see this piece because Mark Hansen, who used to write for the ABA Journal, wrote some pathbreaking pieces debunking junk science and junk scientists such as uber-charlatan Louise Robbins.


University of Minnesota law preofessor Jim Chen has launched a new blog, Jurisdynamics. In his first post, he explains the blog's title:

Jurisdynamics describes the interplay between legal responses to exogenous change and the law's own endogenous capacity for adaptation. The world that law tries to govern has has become "so vast that fully to comprehend it would require an almost universal knowledge ranging from" economics and the natural sciences "to the niceties of the legislative, judicial and administrative processes of government." Queensboro Farms Prods., Inc. v. Wickard, 137 F.2d 969, 975 (2d Cir. 1943). Within the realm of legal scholarship, this blog aspires to the goal that historian David Christian set out for his discipline: "that the appropriate time scale for the study of history may be the whole of time." David Christian, The Case for "Big History," 2 J. World Hist. 223, 223 (1991). Jurisdynamics will present the case for "big law," for the proposition that the substantive scale on which law should be studied, taught, and learned is the entirety of human experience.

Jim's work is typically provocative and engaing, so I would expect his blog to be so as well. Welcome to the blogosphere!


Friday, July 14, 2006

New idea for a movie

based on Franz Kafka's The Trial: As the police come to arrest Josef K. one morning in his apartment, Josef K. is having a bowl of Special K.

(For an idea for a possible sequel to The Trial, see here. Former posts of mine related to Kafka are available here and here, and see especially here for a post on one of his best short stories. Going out on a tangent a bit, here's a post on Capek.)

Gonzalez v. Raich and the Future of Federalism:

A draft of my forthcoming Cornell Journal of Law & Public Policy symposium article on Gonzalez v. Raich (the medical marijuana case) is now available at SSRN. Longtime VC readers and con law mavens may be interested to know that the article to some extent takes issue with the somewhat less pessimistic interpretation of Raich advanced by co-blogger Randy Barnett here.

Here's the abstract:

The Supreme Court's recent decision in Gonzales v. Raich marks a watershed moment in the development of judicial federalism. If it has not quite put an end to the Rehnquist Court's "federalism revolution," it certainly represents a major step in that direction. In this Article, I contend that Raich represents a major - possibly even terminal - setback for efforts to impose meaningful judicial constraints on Congress' Commerce Clause powers.

Raich undermines judicial enforcement of federalism in three interlocking ways: by adopting an essentially limitless definition of "economic activity" thereby ensuring that virtually any activity can be "aggregated" to produce the "substantial affect [on] interstate commerce" required to legitimate congressional regulation under Lopez v. United States and Morrison v. United States; by making it easier for Congress to impose controls on even "noneconomic" activity by claiming that it is part of a broader "regulatory scheme"; and finally, by restoring the so-called "rational basis" test . . . The Supreme Court's recent seemingly pro-federalism decisions in Gonzales v. Oregon and Rapanos v. Army Corps of Engineers actually do little or nothing to mitigate the impact of Raich.

I also contend that the Raich decision is misguided on both textual and structural grounds. The text of the Constitution does not support the nearly unlimited congressional power endorsed in Raich. Such unlimited power also undercuts some of the major structural advantages of federalism, including diversity, the ability to "vote with your feet," and interstate competition for residents.

Raich's undercutting of federalism by upholding the power of Congress to ban the possession of homegrown medical marijuana closely parallels legal developments during the Prohibition era of the 1920s. In both periods, the establishment of a nationwide prohibition regime greatly eroded decentralized federalism, in part because the Supreme Court accepted the government's claims that the power to regulate a market in prohibited substances necessarily required comprehensive regulation of virtually all sale or possession of the commodities in question.

The future of judicial federalism may depend not just on the precise doctrinal impact of Raich, but on the possibility that liberal jurists and political activists may come to recognize that they have an interest in limiting congressional power. A cross-ideological coalition for judicial enforcement of federalism would be far more formidable than today's narrow alliance between some conservatives and libertarians. Ironically, the Raich decision, in combination with other recent developments, may help bring about such a result.

Why Did Reagan Coddle Iran (and Hezbollah)?

I've always been puzzled why Reagan didn't try to punish Iran for taking American hostages. And then barely reacted when Hezbollah killed over 200 marines, and tortured CIA station chief Buckley to death. And then tried to sell weapons to Iran. Near as I can tell, it's because the Reagan Administration had one huge priority, and that was to defeat Communism. (Although we did back Saddam for a while against Iran.) Fanatical muslims, Administration officials hoped, were potential allies of the U.S. against godless Communism, just as they turned out to be in Afghanistan. Is this a reasonable summary? Any commentors with expertise on this?

You can't really blame the Reaganites too much, as they did indeed defeat Communism. But they also seem to have sowed the seeds of WWIII, by allowing and sometimes encouraging fanatical anti-Western Sunni and Shiite Islamicism to flourish, just as Roosevelt and Truman laid the groundwork for the Cold War by cooperating with Stalin to defeat Hitler--and being way too naive about their putative "ally."

Court Bars Defendant "From Making Any Comments That Could Be Construed As To Disparage [a Trademark]":

In The Freecycle Network, Inc. v. Oey, a federal district court issued a preliminary injunction ordering Tim Oey not to "mak[e] any comments that could be construed as to disparage upon Freecycle's possible trademark and logo." The court further ordered Oey "to remove all postings from the internet and any other public forums that he has previously made that disparage Freecycle's possible trademark and logo." (Oey is a former volunteer with The Freecycle Network who eventually concluded that "freecycle" should be a generic term, and not a privately owned trademark, and who has been trying to persuade others of that. Whether TFN actually has the trademark rights has not yet been finally adjudicated; it's part of a separate lawsuit in a different court.)

The order "specifically refers to, but is not limited to, the exhibits used by Freecycle in this case," which include, but are not limited to, statements such as,

I have encouraged people to use term freecycle as a generic term which would block The Freecycle Network (TFN), and all others, from holding a trademark on the term in the area of freecycling services offered on the web.

This would mean that everyone could use the term freecycle and no one could stop anyone else from using it.


The best way to keep freecycle in the public domain is for as many people and groups as possible to continue to use the term generically.

If you feel that the term freecycle is generic, you can let the USPTO know by sending a letter to: [the Commissioner of Trademarks] address.

Mayer Brown Rowe & Maw, the firm for which I'm a part-part-part-time Academic Affiliate, is handling the appeal to the Ninth Circuit; here's the brief, which was written by Don Falk with the help of Ian Feinberg, Dennis Corgill, summer associate (and my former student at Mayer) Pete Patterson, and me.

Disarming Hezbollah:

The Washington Post reports that the Israeli attacks on Hezbollah positions in Lebanon have caused the Lebanese government to consider efforts to disarm Hezbollah and gain control over the southern part of the country, currently dominated by the Iranian-supported terrorist group:

[I]n the wake of Syria's withdrawal of its troops from Lebanon in 2005, the disarmament of Hezbollah has emerged as one of the foremost issues in Lebanese politics. Since the fighting with Israel started Wednesday, calls for Hezbollah to relinquish its weapons have gathered urgency. The violence began when Hezbollah fighters captured two Israeli soldiers in a cross-border incursion, followed by an Israeli attack on roads, bridges, power stations and airports.

Lebanese critics as well as allies of Hezbollah insist that the Israeli response was disproportionate. But at the same time, in meetings Thursday, Lebanese officials began to lay the groundwork for an extension of government control to southern Lebanon.

According to most experts, the democratically elected Lebanese government lacks the firepower to take on the much better armed Hezbollah forces. However, if the Israelis can do enough damage to Hezobollah, the terrorist group might be sufficiently weakened to enable the government to disarm it and take control of the Lebanese-Israeli border in the aftermath of an Israeli attack. Although the anti-Hezbollah Lebanese probably have little love for the Israelis, the Christians and moderate Muslims who control the government are unlikely to use the border as a staging ground for rocket attacks into Israel, as Hezbollah has been doing. Indeed, many Lebanese factions, particularly various Christian and Druze groups, have cooperated with the Israelis in the past when it was in their interest to do so.

Hopefully, this scenario, or something like it is the Israeli objective. The worst outcome would be for the Israelis to stop after inflicting only minor damage on Hezbollah. This would subject Israel to international condemnation and increase Hezbollah's prestige for "standing up" to Israel, while producing few benefits for either Israelis or Lebanese. Obviously, a full-fledged campaign to crush Hezbollah would lead to greater casualties in the short run than a more "proportionate" retaliation. But it is likely to save numerous lives in the long run on both sides of the border. It could also help the Lebanese to consolidate their still-fragile democracy by eliminating the most serious domestic threat to it.

UPDATE: Since I wrote this post, the Israelis have announced that they do indeed plan to pursue this strategy, and the Lebanese Prime Minister, while denouncing Israel, has pledged to take control of southern Lebanon:

Lebanese Prime Minister Fuad Saniora . . . said Saturday at a press conference that his government would reassert government authority over all Lebanese territory - an allusion to the possibility of deploying the Lebanese army in south Lebanon, which is effectively controlled by Hizbullah.

Senior sources in the [Israeli] Prime Minister's Office said that dislodging Hizbullah from southern Lebanon and getting the government in Beirut to assert its authority over the area as called for by UN Security Council Resolution 1559 were among the primary goals of the IDF's current campaign.

Is It Legally Actionable for Google to Downgrade a Site's PageRank (Supposedly Without Good Reason)?

Kinderstart sued Google, saying so:

Kinderstart alleges the following facts. Kinderstart operates a website,, which is a directory and search engine for links to information and resources on subjects related to young children. At one point, Kinderstart was “one of the choicest Internet destinations for thousands of parents, caregivers, educators, nonprofit and advocacy representatives, and federal, state and local organizations and officials in the United States and worldwide to access vital information about infants and toddlers.” It launched in May 2000 and at its peak was “presenting in excess of 10,000 page views to visitors on a monthly basis.” ...

On March 19, 2005, Kinderstart’s website “suffered a cataclysmic fall of 70% or more in its monthly page views and traffic.” Kinderstart eventually “realized that common key word searches on Defendant Google’s search engine no longer listed as a result with any of its past visibility.” With this drop in search engine referrals, Kinderstart’s “monthly AdSense revenue suffered an equally precipitous fall by over 80%.” Kinderstart concludes that its website “was officially, practically and illegally Blocked by Defendant Google.” Its website has been assigned a PageRank of “0” by the Google Toolbar....

The district court has mostly rejected Kinderstart's claims, including state and federal Free Speech Clause claims, antitrust claims, and state unfair business practices claims, but suggested that a libel claim might prevail, if the complaint is properly amended:

As the parties’ arguments suggest, whether Kinderstart can maintain a claim for defamation may turn on facts outside the pleadings. Google’s statement as to whether a particular website is “worth your time” necessarily reflects its subjective judgment as to what factors make a website important. Viewed in this way, a PageRank reflects Google’s opinion. However, it is possible a PageRank reasonably could be interpreted as a factual statement insofar as it purports to tell a user “how Google’s algorithms assess the importance of the page you’re viewing.” This interpretation would be bolstered by evidence supporting Google’s alleged representations that PageRank is “objective,” and that a reasonable person thus might understand Google’s display of a ‘0’ PageRank for to be a statement that ‘0’ is the (unmodified) output of Google’s algorithm. If it could be shown, as Kinderstart alleges, that Google is changing that output by manual intervention, then such a statement might be provably false.

However, Kinderstart’s complaint as presently framed does not explain how it is a false statement about the output of Google’s algorithm regarding, as distinguished from an unfavorable opinion about’s importance, that has caused injury to Kinderstart. Rather, Kinderstart makes only the conclusory assertion that Google’s actions have “cause[d] irreparable harm and damage to the goodwill, value and revenue-generating capabilities of Kinderstart KSC’s Website ....” Accordingly, this claim will be dismissed with leave granted to amend.

50 Greatest Sidekicks of All Time:

Entertainment Weekly has a list of the Fifty Greatest Sidekicks of all time.

Unfortunately, those of us who soldier on as sidekicks of the mighty Volokh Clan didn't quite make the cut. We won't be taking our rightful places alongside George Costanza, Chewbacca, Robin, and Willow Rosenberg. However, as EW points out, the key to being a great sidekick is "letting No. 1 get all the glory." So we take even greater pride in NOT being on the list than we would if we had made it!

What Israel is and is Not Attacking in Lebanon:

To read the average American newspaper, much less lefty blogs or French government pronouncements (link corrected), you would think Israel is indiscriminately attacking Lebanon's civilian infrastructure. Ze'ev Schiff of Ha'aretz (a well-respected military analyst with excellent sources) has the facts, as of this morning Israel time:

"The Israel Air Force focused its attacks in Lebanon on Thursday against long-range Iranian Fajr 3 and 4 missiles, and succeeded in hitting some that were hidden in camouflaged bunkers. The missiles have a range that can reach Haifa and possibly Hadera.... The most significant strategic target attacked thus far has been the Beirut airport. While the strikes against runways have shut down operations, none of the radar or control towers were hit. This allows the airport to continue to control international flights over its airspace [not to mention that it leaves the basic airport infrastructure intact--ed]. Similarly, the main ports have not been hit, and with the exception of Hezbollah's broadcasting station, no other targets in Beirut were attacked. The air force has concentrated its attacks against Hezbollah's military installations. The main Shi'ite neighborhoods in the capital, the power plant, and transformers also have not been targeted.."

Doctor-Patient Speech and the First Amendment:

The New Hampshire Board of Medicine has been considering disciplining Dr. Terry Bennett for the following incidents:

  1. "According to the Patient A complaint, in June 2004, the petitioner spoke harshly to Patient A regarding her weight. According to the Notice of Hearing, the petitioner is alleged to have said 'You need to lose weight. Let's face it if your husband were to die tomorrow who would want you. Well, men might want you but not the types that you want to want you. Might even be a black guy.'"

  2. "[I]n 2001, the petitioner suggested to Patient S that rather than live with her extensive brain injuries, she should purchase a gun and commit suicide to end her suffering. The petitioner denies making the comments alleged in the Patient S complaint."

  3. "[T]he petitioner is accused of speaking harshly to Patient D in 2003 regarding her son's hepatitis condition"; no further details are given.

The Board was investigating whether such statements violate N.H. Rev. Stat. Ann. 329:17, VI(d), which bans "unprofessional conduct" by doctors, and N.H. Admin. R. Med. 501.02(h), which says:

A licensee shall adhere to the Principles of Medical Ethics - Current Opinions With Annotations (2004-2005) as adopted by the American Medical Association.

Principle I of the AMA's Principles in turn says:

A physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.

A New Hampshire trial court has just enjoined the investigation on First Amendment grounds. Professional-client speech, the court held, is protected by the First Amendment; it didn't discuss precisely how protected it is substantively, because it held that the regulation was unconstitutionally vague:

The AMA's Principle I states only in general terms that physicians should treat patients with dignity and respect, but does not define the circumstances under which a physician will be found to have violated that principle. While it would be unreasonable to expect the AMA, or any other body, to define each and every utterance that might create liability, the cited principle provides little guidance as to what speech falls within its ambit. Further, whether a person is treated with dignity and respect are, at least initially, subjective determinations left to the sensitivities of the listener. Such a remarkably subjective standard is certainly not the narrow type of regulation that could comply with constitutional requirements.

Yet more losses for gay-marriage litigants:

Two more today, one in Tennessee apparently letting an anti-gay-marriage state constitutional amendment go to the ballot and one in the Eighth Circuit reversing a district judge's ruling that Nebraska's gay-marriage ban is unconstitutional. That makes five losses in one week.

The Eighth Circuit decision, which can be read here, is especially important. It's significant because it reverses a district court decision that opponents of gay marriage, among them my friends Maggie Gallagher and BYU law professor Lynn Wardle, the Senate Republican Policy Committee, and many others, had relied on heavily as part of the "judicial activism" justification for passing a federal constitutional amendment. Very few constitutional law experts I know believed the district court opinion would be upheld, but that did not stop amendment supporters from using it to goad Congress and the public.

The Eighth Circuit opinion is also significant because it appears to contain very broad language rejecting same-sex marriage claims. This is especially curious because the litigants had not asked the federal court to force Nebraska to recognize gay marriage; they had only asked the courts to hold that Nebraska's state constitutional amendment, which seems to ban much more than gay marriage, was too broad. Not content to reject just that claim, the Eighth Circuit seems to have taken it upon itself to reject gay-marriage claims generally. It holds that only rational basis review applies to Nebraska's definition of marriage and that the state has a rational basis supporting the definition, including interests in children very much like those sustained by the New York Court of Appeals last week.

The Eighth Circuit opinion ends with a quote from Judge Richard Posner in a law review article nine years ago, arguing that for prudential reasons federal courts should be especially careful about recognizing "new rights" broadly opposed by the public.

My hunch is that, if asked, the Supreme Court will deny cert in the Eighth Circuit case.

Gay-marriage litigants will be deeply disappointed by this string of losses, especially the New York and Eighth Circuit rulings. But perhaps the more excitable elements of the anti-gay-marriage movement will calm down just a bit.

Gay Marriage "Loses" in Connecticut:

For the third time in a week, a state court has rejected the claims of gay-marriage litigants. The decision comes from a Connecticut trial court, which granted summary judgment to the state in a suit claiming that the civil unions recognized in Connecticut since last year fall short of marriage, and thus deny the plaintiffs state constitutional rights to due process and equal protection. It's a trial court decision, so it's hard to get very excited about it. Nonetheless, it deals with some interesting issues that are going to come up again.

The Connecticut ruling is not a decision against gay marriage claims in the same way that the New York Court of Appeals decision last week was. The legislative backdrop in Connecticut and New York could not be more different, since New York has done nothing legislatively to recognize and protect gay families. The trial court reasoned that since the Connecticut legislature has extended all of the rights, benefits, and responsibilities of marriage under state law to same-sex couples they have suffered no harm of constitutional significance. The fact that, for example, people may think of "civil unions" as a lesser status, or that same-sex couples may have to explain to people what the term "civil union" means, did not cause the kind of injury a court could address. So the court did not even analyze the substantive constitutional claims for gay marriage. And the state did not have to present its interest in having an equivalent status that goes by a different name.

Here's how the court explained its rationale:

[I]t is surely these underlying rights, benefits, and responsibilities with which substantive constitutional law is concerned, rather than with the nomenclature that is used to define these rights. For purposes of the constitution, it is surely the legal aspects of marriage that are of consequence. (p. 14)

As an aside, while I agree with the court that judges should not generally get involved in fine-tuning titles, I'm not so sure that "nomenclature" is always beneath the constitutional radar. I can imagine circumstances in which it might well matter to a claim. Imagine, for instance, that in 1967 Virginia had created "civil unions" for interracial couples with all the rights, benefits, and responsibilities of marriage. It's unlikely that the Supreme Court would have held in this alternative-universe Loving v. Virginia that such a status involved no constitutional injury, regardless of how people perceived the status, such that the state would not even need to explain the reasons for the distinction. Such a case would involve a racial classification, of course, and so would be especially vulnerable in a way that Connecticut civil unions are not, but we reach that analysis only after deciding first that nomenclature can matter. The Connecticut court denies that the difference between "civil unions" and "marriage" even constitutes a "classification."

Beyond that, the decision is interesting in several ways. First, it has to be taken as yet another blow to the position of the Massachusetts high court, which held in an advisory opinion after its Goodridge decision that an alternative status like "civil union" would present a substantial injury to same-sex couples and that the state had no rational interest in maintaining the distinction.

Second, it's worth pondering this question: once a state has decided to grant all of the benefits, rights, and protections of marriage to same-sex couples, what exactly would be its interest in reserving the word "marriage" to opposite-sex couples? The Connecticut court did not address this question since it denied the claim at the threshold injury requirement. The New York rationales for denying gay marriage claims — the greater need for stability in opposite-sex couplings and the reasonableness of preferring opposite-sex parents — would seem an uneasy fit.

Third and most critically, while superficially a victory for the anti-gay-marriage movement, judicial resolutions like the one in Connecticut actually help to preserve legislative compromises that may ultimately make gay marriage possible. If courts start ruling that once a legislature experiments with marriage-lite for gay couples it must go all the way to full marriage for those couples, legislatures will stop experimenting. Given a choice between gay marriage and nothing, many legislatures will choose nothing. But if they can try an intermediate point without risking that a court will say they've undermined the very basis for any further distinction between gay and straight couples, they'll be more likely to start down that road. Denying gay-marriage claims under these circumstances, judges may help the cause of gay marriage.

It's possible that legislatures will create civil unions or domestic partnerships and then further progress will stall. That's a risk of incrementalism. But within a few years, I expect that Connecticut will legislatively grant marriage, including the word, to same-sex couples. This will come after a few years of seeing that formally recognizing gay couples, and protecting their families fully in the law, has done no harm. It will come after people have had time to adjust to the idea. Gay-marriage advocates need not sue for something that seems likely to come within a few years by legislative action. A little patience could go a long way just now.

I love the Claremont Review of Books:

I've recommended it before, but I continue to be amazed by the consistently high quality and erudition of the essays in the Claremont Review of Books. If I were to cut down my subscriptions to one journal, this would be it. 'nuff said.

UPDATE: I should point out that the Review is not a libertarian publication, but promotes its own idiosyncratic brand of natural-rights-based conservatism, which is apparent in some, but not all, of the essays it publishes. But I don't have to agree with every essay to appreciate the quality of the writing and editing.

FISA, the NSA, and the Specter Bill: In the last 24 hours, there have been some important developments concerning legislation to address the NSA domestic surveillance program. The White House and Senator Specter have agreed to a bill, although the MSM is doing a pretty bad job (at least so far) of reporting what is actually in it.

  If you really want to know what is going on, I recommend sticking to the blogs. I have posted a few things at my solo blog, including this recent post: The Specter Bill's Major Shift in Constitutional Authority to Conduct Monitoring. Balkinization has several very critical posts, including Jack's post Specter Gives Up The Game -- The Sham NSA Bill and Marty's The Specter Monstrosity. Over at Prawfsblawg, Steve Vladeck has a post entitled The Specter Bill, the TSP, and the FISA Court: Some Thoughts.
Getting the ABA Out of the Law School Accreditation Business:

Readers of this blog know that there is an ongoing controversy over the American Bar Association accreditation standards for law schools, and co-blogger David Bernstein, among others, have pointed out numerous flaws in the ABA's approach.

To my mind, the problem goes beyond the shortcomings of specific ABA standards. The real mistake is allowing an organization with a blatant conflict of interest to take over the accreditation role in the first place. As an interest group representing lawyers, the ABA has an obvious stake in limiting entry into the profession so as to decrease the competition faced by its members. One way of doing so is by restricting the number of accredited law schools, at least in the vast majority of states that require all or most aspiring lawyers to attend an ABA-accredited school in order to take the bar exam. We would not allow an organization run by Chrysler, GM, and Ford to set regulatory standards determining who has the right to sell cars in the United States. Requiring ABA accreditation for law schools is the exact equivalent in our industry.

Nor is the point purely theoretical. As soon-to-be guest blogger Andrew Morriss explains in this paper (pp. 4-9), ABA accreditation of law schools emerged in the early twentieth century as a way of eliminating competition from independent law schools and apprenticeship systems. Many if not most ABA accreditation requirements since that time have similar causes.

If viewed as mechanisms for maintaining a cartel system rather than as efforts to advance the public interest, the ABA's most controversial accreditation policies suddenly start to make sense. For example, the ABA's support for methods of affirmative action that admit students most of whom are likely to either drop out of law school or fail the bar obviously serves the economic interests of already practicing lawyers. After all, had those same admissions slots gone to people who are likely to graduate and pass the bar, there would be more competition in the profession. Like David Bernstein, I am not categorically opposed to all forms of affirmative action. But it is striking that the ABA has chosen the form most likely to advance the interests of its members and least likely to actually help minority students (not to mention minority consumers of legal services).

Similarly, the requirement that schools have a variety of expensive, but redundant library resources and other programs that most students do not need (discussed in Prof. Morriss' article linked above) greatly increases the cost of establishing a new law school and thereby further reduces competition.

To be completely clear, I am NOT arguing that the ABA should be prevented from certifying schools as meeting what it considers to be appropriate standards. I am merely suggesting that ABA accreditation should not be required by law as a prerequisite for allowing a school's graduates to take the bar. If ABA accreditation really is a sign of school quality, then applicants can take that into account in making their decisions on what school to attend, just as they currently consider US News rankings and other data. If some form of legally mandated accreditation is needed (and I highly doubt that it is), the system should be run by an independent agency insulated as much as possible from control by the ABA and other interest groups representing practicing lawyers. There should be similar insulation, by the way, from influence by established law schools, since we too have an obvious self-interest in limiting competition by preventing new entry into the legal education market.

The ABA's own survey data show that the public has far less confidence in lawyers than members of most other professions. Personally, I do not believe that lawyers are, on average, less trustworthy than other professionals (then again, I'm a lawyer!). But we certainly are NOT trustworthy enough to be allowed to run a government-supported cartel under which we can prevent would-be competitors from joining the industry.

Those state governments that require ABA accreditation of law schools have in effect appointed a committee of foxes to control access to their chicken coops. We should not be surprised if the foxes have taken the opportunity to gobble up some of the chickens. The really surprising thing is that so many people seem to accept the foxes' self-serving rhetoric that they are doing it for the benefit of chicken farmers.

UPDATE: I am not saying that ABA officials are consciously lying when they claim that their accreditation standards are meant to serve the public interest. Many probably believe their own rhetoric. However, this provides little comfort, since people have a great capacity to believe that whatever benefits them is also good for the general public. Every interest group has its version of "What's good for GM is good for America," and the ABA is no exception.


Thursday, July 13, 2006

Keeping the Iranians In:

An intriguing possibility: Israel claims that it has attacked Lebanon's international highways and airports to keep its two kidnapped soldiers in Lebanon, and to prevent the resupply of Hezbollah. But what if Israel's actual main goal is to trap the Iranian Revolutionary Guards who have been aiding Hezbollah (and through Hezbollah, Hamas) for years in Lebanon, where they can be destroyed? That would be a huge strategic victory for Israel.

Is Less More? A Slightly Different Take: I enjoyed Eugene's post below, although I had a slightly different reaction. Eugene is quite right that "less is more" is a common phrase that is not meant to be facetious; as he suggests, it is often used to note that there isn't a linear relationship between the amount of something and its impact. Sometimes less of that thing actually increases its impact, so less in amount brings more in desired effect.

  At the same time, I read don't read Judge Bybee's dissent to call for a consideration of whether the phrase "less is more" makes sense, or what sense it makes. Rather, I think the difficulty was trying to transition from the clever and memorable intro, "Is less more?," into the legal question in the case. The second sentence doesn't do such a terrific job with it: "To lawyers, unlike philosophers, the question may appear facetious, but the answer has real-life implications." This gets the job done — it makes the transition — but doesn't make a great deal of sense for the reasons Eugene suggests. I think the better transition might have noted the difference between the contexts in which "less is more" and when it isn't. It's hard to come up with the perfect transition, but maybe something like this might be in the ballpark: "Is less more? Perhaps it is in fashion design, but the quip provides an unhelpful guide to interpreting statutes." Not great, but better, I think.

Related Posts (on one page):

  1. Is Less More? A Slightly Different Take:
  2. The Dangers of Trying To Be Colorful:
The Dangers of Trying To Be Colorful:

A federal statute allows certain appeals "if application is made to the court of appeals not less than 7 days after entry of the order." That's pretty odd -- why allow applications that come six years after the order, but not ones that come six days after? There's some reason to think that Congress (or those members or staffers that paid any attention to the provision) meant "not more than 7 days after entry of the order," making this a deadline rather than a waiting period.

The interpretive question is whether a court should read "not less than" as (1) "not more than," on the theory that this is what Congress must have meant, or as (2) "not less than," on the theory that this is what Congress actually said. The Ninth Circuit (and, I believe, several others) read it as "not more than." Several judges disagreed, and dissented from the Circuit's refusal to rehear this decision en banc. Here are the opening sentences of the dissent (a dissent, incidentally, that I found to be substantively quite well-reasoned):

Is less more? To lawyers, unlike philosophers, the question may appear facetious, but the answer has real-life implications.

My first reaction to the "Is less more?" question was that it was an allusion to the phrase "less is more." I suspect this would be the common reaction, and quite likely the intended reaction. And it might seem like a nice colorful touch, an eye-catching way of framing the legal issue.

Yet the trouble is that the connection to "less is more" cuts against the dissent's rhetorical purposes, or so it seems to me. "Less is more" (and, I suppose, "is less more?") is neither particularly facetious nor particularly philosophical. Rather, it's a common way of putting the notion that less of something (especially something that's usually a means towards an end) may often be more of something (the end itself).

A lawyer may tell a junior lawyer that, "when it comes to italics, less is more," meaning that "less use of italics to show emphasis may actually mean more effective emphasis." Or he may say, "in brief-writing, less is often more," probably meaning "using fewer words will often make for more persuasion." "Less is more" is often good advice.

So the answer to "Is less more?" is thus actually often yes, and a not particularly facetious yes. By framing the majority's argument as being "Is less more?," the dissent, I think, is analogizing the majority's argument to something quite plausible (since less often is more) rather than to something wrong, paradoxical, unlawyerly, or particularly facetious. As it happens, the majority's point that "'less' is 'more'" actually has nothing to do with the common phrase "less is more." But it seems to me that by bringing up this phrase in the reader's mind, the dissent is giving the majority more credit than necessary.

I mention this because it ties in to my "avoid the figurative, but not like the plague" advice. I'm all in favor of making one's arguments colorful, if that color doesn't unduly sacrifice precision or persuasiveness. Metaphors, allusions, and witticisms can sometimes be especially persuasive, or at least can help keep the reader interested.

But often such colorful language is so appealing to the writer that the writer uses it even when it's not quite apt -- even when it suggests an analogy that isn't quite right, or when it implicitly undermines the writer's argument. Plain words are usually chosen only because the writer thinks they're right. (They may still be wrong, but the writer was at least focused solely on getting the right words.) Colorful words are often chosen chiefly because they're colorful, not because they're the most precise way of articulating the writer's point. And while a colorful and precise phrase is great, a colorful but inapt and thus substantively counterproductive phrase is worse than a plain and precise one.

Perhaps I'm mistaken, and perhaps I'm reading too much into a harmless witticism. But if I'm right, then it's further evidence that we should be skeptical about the very flourishes that we most like. If we like them for reasons other than their logical and rhetorical aptness, we might be missing their possible inaptness.

Related Posts (on one page):

  1. Is Less More? A Slightly Different Take:
  2. The Dangers of Trying To Be Colorful:
Valerie Plame Wilson & Joseph Wilson v. Scooter Libby, Karl Rove & Dick Cheney:

Here's the complaint in the just-filed case. I'm swamped, and can't get into the details, but I think it's a pretty weak argument; but I thought I'd post it so you folks can see for yourselves.

ABA Denies Provisional Accreditation, in Part Because of "Diversity" Concerns:

As the U.S. Civil Rights Commission hearing on the ABA's "diversity" requirements last month, the ABA's representative stated that no law schools had ever been denied accreditation for failing to meet "diversity" requirements. Even if that statement was true then, it's not true now. The ABA has denied Charleston Law School provisional accreditation, in part because the ABA is not yet satisfied with its commitment to "diversity." The law school, its future on the line, will now do the only sensible thing under the circumstances, and admit wildly underqualified minority applicants who will go on to fail the bar exam in wildly disproportionate numbers. But there is a saving grace: thanks to the ABA, which condemned the law school for relying too heavily on electronic resources, while they are in law school they will be able to read cases in the official reports, rather than rely on identical PDF files from Westlaw. Makes me proud to be a member of the ABA.

Derbyshire Debunks Gilder:

George Gilder of the Discovery Institute has an extended defense of "intelligent design" in the new print issue of National Review. John Derbyshire, writing on National Review Online, is wholly unconvinced. I often disagree with Derbyshire, and I found Gilder's early writings on capitalism and economic growth quite compelling when I was in college, but Derbyshire clearly gets the best of Gilder here.

On a related note, I am quite puzzled that so many conservatives who accept the idea of spontaneous order in the marketplace are nonetheless enthralled by the idea of "intelligent design." As F.A. Hayek and other important economic thinkers explained, the order and coordination of the marketplace arises spontaneously and does not require any central planner (or intelligent designer). Further, the economic order evolves over time without any such central planning, as successful innovations and organizations displace their predecessors. Why is it that those who see no need to ascribe the existence of complex evolutionary organizatioal systems to a central intelligence in one sphere find the concept so necessary in another.

Missile Test "Success":

The military is touting the latest Terminal High Altitude Area Defense (THAAD) missile test as "phenomenal" and claims a THAAD system could be ready for emergency deployment within a year. According to this report, "military officials said the test went better than they could have hoped." [Yet in the next paragraph, the story quotes an official saying "It performed as expected." Does this mean that when it comes to missile tests performing "as expected" is "better than they could have hoped" for? Never mind.]

Since I've learned so much about defensive missile capabilities from in prior comment threads, I am once again interested in what the VC readership has to say about this latest test, whether the THAAD system is worth the $4 billion invested in it, and what this development means for our defensive capabilities.

Joelle Moreno on Federal Rule of Evidence 702:

Last week, I posted a critique of a Federal Circuit decision that ignored the text of amended Rule 702. The court treated issues of wheter a methodology is used in a reliable way in a particular case, which is an issue of admissibility under Rule 702, as an issue of weight. Despite what I think is the clear text of the rule, some commentors claimed that I was propounding an indiosyncratic view of Rule 702.

However, I just came across a piece by Prof. Joelle Moreno that critiques an Eleventh Circuit opinion on which the Federal Circuit relied heavily in the case I criticized. Moreno makes the same point I do:

One recent case from the Eleventh Circuit illustrates how courts can misconstrue their Daubert gatekeeping obligations, effectively abnegating responsibility for reliability decisions. In Quiet Technology DC-8, Inc. v. Hurel-Dubois UK Ltd., the appellant challenged the admission of defense expert trial testimony, arguing that the expert had "misused a method that, in the abstract, is reliable." 326 F.3d 1333, 1345 (11th Cir. 2003). The appellate court recast the question, finding that "although [r]ulings on admissibility under Daubert inherently require the trial court to conduct an exacting analysis of the proffered expert's methodology, it is not the role of the district court to make ultimate conclusions as to the persuasiveness of the proffered evidence." Id. at 1341 (internal quotations and citations omitted). By redefining the reliability of an expert's application of his methods to the facts, which should fall squarely within the judge's purview, as a question of "persuasiveness," the court was able to conclude that "the alleged flaws in Frank's analysis are of a character that impugn the accuracy of his results, not the general scientific validity of his methods." Id. at 1345. When the Eleventh Circuit concluded that this finding meant that the appellant had failed to raise an argument relating to admissibility, the court completely misconstrued its Daubert obligations. The Eleventh Circuit's mistake was to define this as a question of weight, leading the court to conclude that "the identification of such flaws in generally reliable scientific evidence is precisely the role of cross-examination." Id.

Joelle Ann Moreno, What Happens When Dirty Harry Becomess an (Expert) Witness for the Prosecution, 79 Tulane L. Rev. 1 (2004).

The Tomorrow People:

Anyone remember that show? (Perhaps watched it on Nickelodeon in the mid-1980s?) Harry Brighouse on Crooked Timber does. See also John Quiggin's and Henry Farrell's posts about Doctor Who. (See also my posts about Doctor Who here and here. Note, as I noted back then, that Dalek is a good rhyme for Volokh. Also, since writing those posts, I saw Tom Baker as Dr. Who in The Talons of Weng-Chiang, which was better than the episode I had complained about.)

"International Guarantees" and the "Peace Process":

Left-winger Aluf Benn, in Ha'aretz:

Katyushas and Qassam rockets, not demographics, now look like Israel's most pressing threat. Apparently, the international community, on whom Israel relied to deter Syria and Lebanon, and whose support was expected in the struggle against the Palestinians, has trouble coming up with the goods. The world is busy now with other problems. Another Israel-Arab war is the last thing its leaders need.

This, I'm afraid, is a key point. European governments and other members of the relatively responsible "international community" have been asking, or demanding, for some time that Israel take risks, especially territorial risks, for peace, in return for international support for Israel to live within its recognized borders. This has worked reasonably well in the case of Egypt, but Israel's withdrawal from Southern Lebanon and Gaza has not exactly mobilized the "international community" to crack down sufficiently on Hamas and Hezbollah. Indeed, while criticism of Israel has been relatively muted, nevertheless the predominant reaction to Israel's defense of its borders has been that Israel is "overreacting." I'd love to see what, for example, France's reaction would be if a neighboring country launched missles at its border cities and killed and kidnapped its soldiers!

The failure of international pressure to tame either Hezbollah or Hamas means that Israel's electorate is justifiably likely to take a significant turn to the right.

UPDATE: Schmuel Rosner of Ha'aretz already sees signs of the turn to the right:

I spent the morning of Wednesday talking to some hard-core left-wing Israelis. The thoughts they shared with me were quite clear: Hit them hard. Hezbollah, Beirut, Syria, whoever. Those who might have hoped for a more restrained response by Prime Minister Ehud Olmert should think again. It's not just the Arab leaders and the terrorists testing the new government - it's the Israelis too. And most Israelis already know that Olmert can be the moderate, restrained, rational kind of leader. Its Olmert the bully they want to see now - that is, if there is one.

Peter Kirsanow on the ABA's "Diversity" Standard for Law Schools:

National Review Online:

The ABA maintains that the latest revision doesn’t require law schools to use race or ethnicity in admissions nor does it require that law schools violate federal or state laws prohibiting the consideration of race or ethnicity. A superficial reading supports such contention. After all, interpretation 211-2 states that law schools may use race and ethnicity in admissions, not that they shall. And revised 211-1 seems to direct schools in jurisdictions that prohibit racial discrimination in admissions to use methods other than preferences to achieve diversity.

Testifying before the U.S. Commission on Civil Rights last month, however, Professor David Bernstein of George Mason University Law School dissected the revisions to reveal that the standards remain, at best, inconsistent with the requirements for lawful racial preferences established by the Supreme Court in Grutter v. Bollinger:

Standard 211 requires law schools to take concrete action to demonstrate a commitment to having a diverse student body. Interpretation 211-2 dictates this be done through a school’s admissions policies and practices. Interpretation 211-3 states that the ABA will measure whether a law school has satisfied its diversity obligation by the totality of the law school’s actions and “the results achieved.”

There are at least two problems with the Standard.

First, it violates Grutter by taking away from the law school the discretion to determine whether diversity is essential to its mission. Under Grutter, the Supreme Court will defer to a law school’s judgment in this regard; i.e., the Court gives the school a presumption of good faith in defining its mission.

Standard 211, however, completely overrides the school’s discretion in determining whether diversity is essential to its mission. Instead, the ABA mechanically imposes diversity (more accurately, the ABA’s narrow definition of diversity) upon every school’s mission, regardless of an individual finding of pedagogical need. This destroys the presumption of good faith critical to the legality of a school’s racial preference program. Without the element of good faith, such programs devolve into raw racial balancing and don’t survive strict scrutiny.

Second, the Standard provides no safe harbor. Since the Standard measures a school’s compliance by results achieved, the only way a school can satisfy 211 practically is by using massive preferences.

Textbook Plagiarism? Or the Perils of Ghostwriting?

Today's New York Times has an interesting story about a common problem with elementary and high school textbooks: a lack of originality. The problem is not texts in given fields recount the same historical events -- one would hope there is substantial overlap in this regard -- but that, in at least one prominent case, they use virtually identical passages to describe the same events. While the texts are adorned with the names of prominent academics. it appears, have far less input over the eventual content of the textbooks than one might have thought.

Just how similar passages showed up in two books is a tale of how the largely obscure $4 billion a year world of elementary and high school textbook publishing often works, for these passages were not written by the named authors but by one or more uncredited writers. And while it is rare that the same language is used in different books, it is common for noted scholars to give their names to elementary and high school texts, lending prestige and marketing power, while lesser known writers have a hand in the books and their frequent revisions.

As editions pass, the names on the spine of a book may have only a distant or dated relation to the words between the covers, diluted with each successive edition, people in the industry, and even authors, say.

According to the publisher, the rush to update books with contemporary material after 9/11 was part of the cause.

Wendy Spiegel, a spokeswoman for Pearson Prentice Hall, which published both books and is one of the nation’s largest textbook publishers, called the similarities “absolutely an aberration.”

She said that after Sept. 11, 2001, her company, like other publishers, hastily pulled textbooks that had already been revised and were lined up for printing so that the terror attacks could be accounted for. The material on the attacks, as well as on the other subjects, was added by in-house editors or outside writers, she said.

She added that it was “unfortunate” that the books had identical passages, but said that there were only “eight or nine” in volumes that each ran about 1,000 pages.

Others quoted inthe story suggest there is a deeper problem with the practice of putting the names of prominent academics on textbooks that they may not have written. According to Gilbert Sewall of the American Textbook Council:

“The publishers have a brand name and that name sells textbooks. . . . That’s why you have well-established authorities who put their names on the spine, but really have nothing to do with the actual writing process, which is all done in-house or by hired writers.”

So instances like the above may simply be the perils of textbook publishing (at least in some fields).

William Cronon, a historian at the University of Wisconsin who wrote the American Historical Association’s statement on ethics, said textbooks were usually corporate-driven collaborative efforts, in which the publisher had extensive rights to hire additional writers, researchers and editors and to make major revisions without the authors’ final approval. The books typically synthesize hundreds of works without using footnotes to credit sources.

“This is really about an awkward and embarrassing situation these authors have been put in because they’ve got involved in textbook publishing,” Professor Cronon said.

Tushnet v. Cornell On Guns:

Oxford University Press has just published A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America by Ohio State professor Saul Cornell. The book challenges both the "individual right" and "collective right" interpretations of the Second Amendment, and puts forth a third "citizen-oriented" interpretation of the right to bear arms.

To help promote the book, the OUP blog is hosting a dialogue between Cornell and Mark Tushnet on the meaning of the Second Amendment. It's quite interesting so far. The dialogue begins here, and continues here and here.


Wednesday, July 12, 2006

Three Reasons Why Real Football Is Superior to American Football:

(Warning: Shamelessly derivative of another joke I once heard.)

1. It actually mostly involves the ball being moved with the foot.

2. Head-butting an opponent is seen as reason for a penalty, rather than praise.

3. When the World Championship is held, it involves teams from more than one country.

More Presidents:

Yes, but which President is credited for having come up with an original proof of the Pythagorean Theorem?

Speaking of Neologisms and the OED:

Which American President is listed in the OED as the first cited author for over 100 words, including such beauties as "doll-baby"(!), "sanction," "electioneer," "vomit-grass," "public relations," "Mason-Dixon," "obiter dictum," "post-note," and, best of all, the self-referential "neologize"? Answer is below.


OUCH! Judge Gives Lawyers What They Deserve

It's old news, I guess, and many of you may have seen this already -- but I hadn't (thanks to my student, Angela Giampolo, for passing on the citation to me), and it's more than worth another look in any event. The case is Bradshaw v Unity Marine (147 F.Supp.2d, S.D. Texas 2001) -- available online here or here. Some choice tidbits:

"Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact--complete with hats, handshakes and cryptic words--to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor's edge sense of exhilaration, the Court begins. . . .

"Plaintiff responds to this deft, yet minimalist analytical wizardry with an equally gossamer wisp of an argument, although Plaintiff does at least cite the federal limitations provision applicable to maritime tort claims. Naturally, Plaintiff also neglects to provide any analysis whatsoever of why his claim versus Defendant Phillips is a maritime action. Instead, Plaintiff "cites" to a single case from the Fourth Circuit. Plaintiff's citation, however, points to a nonexistent Volume "1886" of the Federal Reporter Third Edition and neglects to provide a pinpoint citation for what, after being located, turned out to be a forty-page decision. Ultimately, to the Court's dismay after reviewing the opinion, it stands simply for the bombshell proposition that torts committed on navigable waters (in this case an alleged defamation committed by the controversial G. Gordon Liddy aboard a cruise ship at sea) require the application of general maritime rather than state tort law. (What the . . .)?! The Court cannot even begin to comprehend why this case was selected for reference. It is almost as if Plaintiff's counsel chose the opinion by throwing long range darts at the Federal Reporter (remarkably enough hitting a nonexistent volume!). . . ."

"After this remarkably long walk on a short legal pier, having received no useful guidance whatever from either party, the Court has endeavored, primarily based upon its affection for both counsel, but also out of its own sense of morbid curiosity, to resolve what it perceived to be the legal issue presented. Despite the waste of perfectly good crayon seen in both parties' briefing (and the inexplicable odor of wet dog emanating from such) the Court believes it has satisfactorily resolved this matter. Defendant's Motion for Summary Judgment is GRANTED."

Interpreting Academia:

I came across an interesting and provocative piece by Mark Bauerlein at Inside Higher Ed yesterday, "The Selective Critique." It is actually more like two short pieces rolled into one fairly long column. The first part is essentially that the rise of linguistic theory in the humanities went too far and beyond its proper stopping point. The second is that those who used linguistic theory to critique the academy in the past are now inconsistent in turning the same tools on the language of the academy in the present.

An excerpt from the first part:

The theory provided no guidelines as to where it did and did not apply, and so it was stretched too thin. It provided no means for distinguishing between content that was invisible from content that actually wasn’t there. The professors saw implicit meaning everywhere, much of it political or identity-oriented. Persons outside the academy looked at the whole of their exchanges and found most of them uncomplicated and transitory. The surface was all.

From the second part:

One can understand the professors’ defensiveness, but to let it squelch the exercise of a practice that they have at other times wielded so boldly is a breach of their own ideals. Have they lived so long and so closely to “social justice,” “social change,” “queer,” “whiteness,” and “gender equality” that they do not recognize them as loaded terms? Have they imbibed the political currents of the campus so thoroughly that they regard a polemical phrasing in a course description as merely a lively description? By their own instruction, we should regard the widespread attention to race, gender, and their social construction as emanating from a world view and signaling an ideological commitment. When Ward Churchill’s notorious speech made headlines, the professors were correct to cite his First Amendment rights and reprove those calling for his job. But as more information came to light, and his political attitudes seemed to bear a closer relation to his scholarship, academic doctrine demanded that the institution that rewarded him be reviewed. Roger Bowen, general secretary of the American Association of University Professors, has assured the Commission on the Future of Higher Education that “Faculty members are accountable for their work in many ways,” including peer review of scholarship and grant applications and annual departmental review for salary and promotion. What, then, is the relationship between Churchill’s high ascent in the profession and his discredited writings? Humanities and social science professors work backward from institutional statements to the culture of the institution itself all the time. Why exempt academic language from the process?

His punchline is that this failure to use linguistic theory responsibly and consistently has spawned intellectual errors within the academy (he calls them "intellecutal blunders") and has undermined the credibility of academics by exposing their uses of theory as being political and opportunistic rather than intellectually consistent.

There is a lot going on in this piece and I haven't immersed myself in the theory or practice of linguistic theory to judge whether Bauerlein's critique is sound. Nonetheless, it struck me as a provocative piece that I thought VC readers might find interesting, and I suspect that there are readers out there who are probably more expert on linguistic theory and its application in the humanities to comment on Bauerlein's critique. Some of the comments at Inside Higher Ed are interesting as well.

[Puzzleblogger Kevan Choset, July 12, 2006 at 12:10pm] Trackbacks
Box Switching:

One of my all-time favorite problems:

I have two boxes. Each has some positive amount of money in it, but I will give you no information about the possible dollar amounts other than the fact that one box has exactly twice the amount of money in it as the other. You randomly select one of the two boxes, open it, and find $100 inside. I now give you the option of keeping the $100 or switching boxes with me and keeping whatever's inside the other box. Which should you choose?

If you'd like a related problem that might help you think about this differently, click below.


Updating the OED V: Old words!

Here's a neat feature of the online OED. (Alas! You can only connect if you or your institution has a subscription. So if you can't get there, and if you don't have the paper copy, you'll just have to take my word for it. Well, for the online interface stuff I'm talking about, even the paper copy doesn't work....)

As you look at the definition of a word, the word also appears in an alphabetical list in a frame in the left margin. For instance, for "cert (n.)," you can see "cert" in the middle of a list stretching from "cerosin," "ceroso-," "cerote," etc., down to "certes," "certie," "certifiable." This is good for checking similar words or correcting your own spelling, and also simulates to a small extent the experience of being seduced by random words you might find while flipping through a dictionary.

But you can switch from "List by entry" to "List by date"; then, instead of seeing your word in alphabetical context, you can see it in chronological context, where each word is indexed by the earliest listed occurrence (over the entire entry). "Cert" (in the "dead cert" meaning) is listed as appearing in 1889, so the words in the left margin run from "1889 catalytical," "1889 cataphoresis," "1889 catatonia," etc., down to "1889 chemiluminescence," "1889 chicle," "1889 chit-chatty."

There are a lot of 1889 words, but you can also go up or down a screen to see alphabetically prior or subsequent words in the same year, and further to see words from different years. This is fun because, if you're interested in a period, seeing what words first showed up in the language in that period gives you a nice sense of what was going on at the time in society and culture.

For example, "lonely" was invented by Shakespeare, who used it in Coriolanus ("I go alone Like to a lonely Dragon, that his Fenne Makes fear'd, and talk'd of more then seene.") in 1607 — did you know that "Alpine," "archaeology," "birthplace," "bloodshot," "exasperated," "Machiavellianism," "maestro," and "procrastinator" also appeared (as far as the OED knows) in that year?

Now I know what you're thinking: "O.K., Volokh, enough with the 1889 and 1607, what are the earliest known English words?"

UPDATE: Pat at Stubborn Facts responds. Also, note a useful comment by David Leon Gil in the comments.

The Road to Gay Marriage After New York:

Almost a week has now passed since the New York Court of Appeals handed down its decision denying state constitutional claims to same-sex marriage. Previously, I’ve discussed my thoughts on the court’s legal analysis. Now I want to explore some effects of the decision on the cause of same-sex marriage.

First, the New York decision may be persuasive authority to other state courts. Right now, litigation is pending in 8 state court systems. We await decisions from the high courts of two states, New Jersey and Washington. New York is a large state and its courts are well regarded. At the same time, it’s a politically liberal state. The New York decision could provide cover, jurisprudentially and politically, to judges in other states who want to reject gay-marriage claims but who are concerned about the perception of legal elites that they are denying the next great civil-rights cause. If New York’s high court can do it, it can’t be blind bigotry or ignorance to reject these claims, can it? Thus, the New York decision could be influential on this issue in a way that, say, the Alabama Supreme Court would not be. The New York opinion may therefore hinder the success of gay-marriage litigants elsewhere.

I would not make too much of this, however. While courts in sister states may influence one another on relatively arcane or technical matters, or matters in which the state court system is thought to have special expertise (like the Delaware state court system’s expertise in corporate law), I doubt they’ll really take the lead from each other on a subject as high profile as gay marriage. Judges will tend to have a view of the issue going in, and I doubt that they’ll be converted by the opinion of four judges in Massachusetts in one direction or four judges in New York in the other direction. It’s remarkable how little the New York court even mentioned the Massachusetts decision or the decisions of courts in other states.

To the extent there is some room for actual persuasion on the issue, I also doubt the New York decision (or the Massachusetts one) is sufficiently well reasoned by itself to budge anyone. That’s not to say the New York (or Massachusetts) decision won’t be cited in future state court litigation. It’s only to say that the citation is likely to be adornment for a result already reached.

At most, the New York decision may have canceled out whatever small persuasive effect Goodridge might have had.

A second effect may be to soften the remedial demands made by future gay-marriage litigants. Instead of insisting on full marriage or nothing, as the New York plaintiffs did, perhaps litigants will be more likely to settle for marriage-lite. This might marginally increase their chances for success. Future state courts might see the current landscape as offering three models for resolution of gay-marriage claims: Massachusetts (full marriage), New York (nothing), and Vermont (civil unions, with directions to the state legislature to work out the details.). They might see the Vermont resolution as a middle position between the extremes of New York and Massachusetts, allowing them to give gay couples the benefits and protections of marriage without risking the political backlash that comes with the word “marriage.”

A third effect should be to reduce and to delay litigation arising from inter-state conflicts in marriage law. If the New York court had ruled for gay marriage, that by itself would have dramatically increased the potential for such conflicts in the near future. New York is the third most populous state, with a high concentration of homosexuals. Its residents, especially in the City, are highly mobile. Very quickly, its gay married residents would have moved to or traveled in other states, gotten into legal conflicts with each other or with third parties, and sought some recognition for their relationships. I think discordant state policies in this area can be dealt with under traditional legal principles. And these conflicts will occur anyway, whether they involve gay marriages or civil unions. But there is no doubt the sheer number of such issues coming from New York would have heightened tensions over the gay-marriage issue very quickly and added to calls for a national resolution via constitutional amendment.

A fourth effect of the New York decision may be to cool the fevered brows of gay-marriage litigants who imagined that Massachusetts would commence an avalanche of state-court victories for gay marriage. That has not happened, is unlikely to happen in the immediate future, and the New York decision makes it somewhat less likely to happen now than it was before. The cooling effect may mean that new gay-marriage litigation will be rarer, at least in the immediate future.

I doubt the magnitude of this cooling effect, however. There is no central clearinghouse for gay-marriage litigation, no command center where the great homosexual conspiracy dictates where and when litigation is filed. Anyone with a printer, a filing fee, and a couple of willing clients can file a gay-marriage lawsuit anywhere, anytime. While gay legal elites have sometimes prevailed on such litigants to hold off in states where their lawsuit is likely to make bad precedent for the cause, they haven’t always succeeded. People can be very dogged about what they regard as their constitutional rights and, less abstractly, the manifest unfairness and harm of having their families shut out of marriage. The gay-marriage movement is a revolution of rising expectations among the growing number of gay families and no single judicial decision is going to suppress it.

Also, I doubt New York will turn out to be much of a chastening event for gay legal elites. The main gay legal organizations pushing this effort have been strategically smart about where the litigation should be filed. But their raison d’etre is to file litigation, not to fight decades-long legislative battles. Their funding comes from litigation and from people who support litigation, so they have little internal incentive to back off. Besides, it will take only one more court victory somewhere (perhaps New Jersey) to convince gay-marriage litigants that New York was an aberration.

Related to all this, many commentators who favor gay marriage, like Andrew Sullivan and Jack Balkin, have seen a silver lining in the New York loss. They believe that losing such an important judicial decision may force the gay-marriage movement to emphasize legislative progress, which will produce gains that are more durable and less likely to infuriate opponents than are court victories. Regular VC readers will know that I have argued for an emphasis on legislative progress toward gay marriage.

Will the New York decision re-order priorities toward legislation? Certainly in New York the legislature is for now the only available arena. Some politicians in New York, including Michael Bloomberg, have said they’ll now work for gay marriage in the state legislature. It took New York 30 years to pass an employment anti-discrimination law covering sexual orientation. With Republicans fairly comfortably in control of the state senate and for now the governor’s mansion, gay marriage is not coming to New York anytime soon. Instead, New York will have to be one of the states where, if progress is to be made in the near-term at all, it will have to be made by degrees.

Outside New York, I doubt this decision by itself will have much effect immediately on the balance of power, persuasiveness, and funding between those gay-marriage advocates who emphasize litigation and those who emphasize legislation. I suggested some reasons for this above.

But New York might be the beginning of the end for the strong emphasis on litigation that has marked the early part of the gay-marriage cause. Despite the exaggerated claims of some FMA supporters, there aren’t that many state court systems likely to be hospitable to gay-marriage claims for the foreseeable future. (The federal courts are hopeless, as litigation strategists know.) While gay-marriage litigation strategists might once have hoped to build momentum for a state-by-state judicial sweep, producing a few initial victories in very friendly states that would lead to later victories in less friendly states, that hope has been diminished by the New York defeat and even more by the political backlash to gay marriage. Once existing litigation has worked its way through those few state court systems where litigants have a reasonable prospect of success, as such litigation is now doing, gay-marriage advocates will turn primarily to legislatures.

As in other social and political movements in this country, the courts will have helped along the way by highlighting the strength of the principled arguments and especially by getting some isolated experiments started. But there will be no substitute for making the case to the people and their representatives.

Milton Friedman:

There a nice profile of Milton Friedman in last week's LA Times. There are many things to admire about Dr. Friedman -- high on the list for me, though, is the energy and passion he has brought to the campaign for school choice at a time when he could be sitting around enjoying his retirement; though it has receded some from the forefront of attention of newspapers and pundits, it remains, imho, probably the most important domestic issue facing the country for the long-term.

Novak Tells (Almost) All:

This morning's Robert Novak column begins:

Special Prosecutor Patrick Fitzgerald has informed my attorneys that, after 2-1/2 years, his investigation of the CIA leak case concerning matters directly relating to me has been concluded. That frees me to reveal my role in the federal inquiry that, at the request of Fitzgerald, I have kept secret.
With that, Novak proceeds to explain his role in the Wilson-Plame affair, including the identities of two of his three sources (Karl Rove and Bill Harlow). Novak does not reveal the identity of his "primary source," however, though he says Fitzgerald knows who it is.

The Washington Post covers Novak's disclosures here. For more, Novak will discuss these issues in further detail tonight on FoxNews "Special Report" at 6pm.

UPDATE: Tom Maguire has more, including a back check.

Laurence Tribe Responds About the Massachusetts Justices' Concurrence:

Here's his comment (links added by me):

The question that the Greaney/Ireland concurring opinion presents is certainly an intriguing one. I agree with what I take to be Marty Lederman’s view that Eugene Volokh's interpretation of that concurrence is by no means the most generous possible construction of the point the two SJC justices are trying to make; and I agree that Marty’s carefully nuanced re-reading of their opinion is a linguistically possible one inasmuch as the Massachusetts initiative doesn't appear to be written as an explicit exception to the "protections of liberty, equality, tolerance, and the access of all citizens to equal rights and benefits" found elsewhere in the Massachusetts Constitution. Given that the asserted conflict between the initiative and those protections would exist only on this premise, I wholeheartedly agree:

-- that the question posed by the task of reconciling seemingly inconsistent constitutional provisions, each on the same formal plane of sovereign legitimacy, is far from self-answering;

-- that the "last-in-time" principle is not an inevitable corollary of the axioms of self-governance over time;

-- that overarching principles of "clear statement" for establishing a hierarchy among otherwise conflicting provisions — principles themselves subject to modification in any truly "republican" form of government — could well support a conclusion that inadvertent derogation from core protections of equality of citizenship is to be avoided;

-- that Jed Rubenfeld's work, especially, is pertinent to that issue; and

-- that, in any event, the concurrence performs a valuable service in reminding the People of Massachusetts that the matter before them is one that should be taken with utmost seriousness.

That said, I tend to read the concurrence less generously than Marty has read it and see in it more of the seeds of an imperious and self-aggrandizing, even if unintended, assertion of judicial supremacy. In particular, I'm not at all sure that Justices Greaney and Ireland would agree with the two of us that, if the initiative had been expressly couched as an exception to the quoted equality principle, there would be no "conflict" of the conventional sort for the court to resolve — although, even on that assumption, an argument could certainly be made that some bedrock constitutional principles might be entrenched so deeply in any given constitutional system that more than a popular initiative of the current electorate would be required to "untrench" them, a proposition obviously more difficult to reconcile with classical versions of constitutional democracy.

A major difficulty I have with the Greaney/Ireland opinion even so is that it seems on its face to be less sensitive than one might wish to distinctions of this order and could even be said to be tone-deaf to the hegemonic view of judicial authority that it might be read as announcing.

For these reasons, I find myself in considerable sympathy with a good bit of what Eugene says in his immediate reaction to the concurrence.

UPDATE: Marty Lederman adds the following:

Thanks to Larry and Eugene for treating my provocation with perhaps more attention than it warranted. (Confession: I still haven't had a chance to read the SJC opinions themselves, and I will therefore assume that Eugene and Larry have accurately captured the tone, and the shortcomings, of the concurrence.) On further thought it does seem to me that Eugene was getting at something that I probably shortchanged, namely, that it's probably fair to assume that the "People" at all three points in time -- at the time of ratification of Constitutional Provision A; at the later time of ratification of inconsistent Provision B; and at the still-later time C, when the court is asked to resolve the conflict between A and B -- assume (for better or worse) that a "last in time" rule is the appropriate tie-breaker, even where the first-in-time provision might be more consistent with the Constitution as a whole, i.e., even when Provision B is the provision that is out of whack with the remainder of the document. And if that's correct -- if there is such a consensus of the People over time as to the proper methodological tie-breaker -- then that should establish the default rule for conflict-resolution as a matter of constitutional ethos, or some such thing. Which, conveniently enough, happens to coincide with what we all know the courts would invariably do! (Which is all the more reason why the concurrence was so startling . . . .)

Related Posts (on one page):

  1. Laurence Tribe Responds About the Massachusetts Justices' Concurrence:
  2. Who Is Sovereign in Massachusetts -- the Justices or the People?

Tuesday, July 11, 2006

DOJ on Hamdan and NSA Surveillance: Given JA's post below about the NSA domestic surveillance program in light of Hamdan, it's worth pointing out that DOJ is sticking to its guns. DOJ released a letter (.pdf) dated yesterday announcing its view that Hamdan has no impact on the legality of the NSA program.

  More coverage at LawCulture, Balkinization, and
Lederman & Sunstein on Hamdan & NSA Surveillance:

Over at Balkinization, Marty Lederman and Cass Sunstein have been mulling the Hamdan decision's implications for the legality of the NSA conter-terrorism surveillance program. While they don't agree across the board, they concur (as do others) that Hamdan undermines the most plausible arguments in support of the NSA's activities. Here are the links:

Lederman's initial post;

Sunstein's response;

Lederman's reply;

Sunstein's surreply.

Saving Our Environment from Washington:

NYLS law professor David Schoenbrod began his legal career with the Natural Resources Defense Council, fighting to remove lead from gasoline. This effort was largely successful -- today gasoline is unleaded and lead levels are down dramatically. Nonetheless, Schoebrod argues that the bulk of America's federal environmental regulatory system is a failure. In Saving Our Environment from Washington: How Congress Grabs Power, Shirks Responsibility, and Shortchanges the People, he makes the case for decentralizing environmental decisionmaking and reducing legislative delegation to expert agencies.

I review Schoenbrod's book in the latest issue of The Independent Review. An excerpt follows, the full review is here.

Unlike some critics of contemporary environmental policy, Schoenbrod does not wish away important environmental concerns, nor does he dismiss all federal efforts. The relevant question is not whether, by some measure, environmental conditions have improved (they have) or even whether the current federal regulatory system deserves some of the credit for such trends (it does). Schoenbrod is more interested in whether the existing arrangements are the best ones that we can devise. A given program cannot be deemed a “success” if other approaches might have achieved the same or better results at lower cost. Environmental protection is important, but so are other societal goals. If federal environmental regulations suppress economic growth, discourage technological innovation, and constrain individual liberty, then available alternatives deserve consideration. Such is the ground on which Schoenbrod ultimately rests his case.

Saving Our Environment is powerful especially because it is based on Schoenbrod’s own experience as an environmental advocate fighting in the trenches of environmental law and policy. Though now a legal academic, Schoenbrod approaches environmental policy from the inside, having once relied on the policy mechanisms he now seeks to challenge. Saving Our Environment offers guiding principles rather than a step-by-step plan of action, perhaps because of the obstacles Schoenbrod’s ideas face. Not the smallest such obstacle is the institutional inertia against policy change: “Congress will let go of local environmental problems only if its members take responsibility for the environmental laws, and they can take responsibility only if Congress lets go of local environmental problems." . . .

Today, environmental decisions with profound effects on local communities are often made hundreds or thousands of miles away in Washington, D.C., and even there the most important policy judgments are made by unelected bureaucrats rather than by the people’s elected representatives. “This arrangement lets members of Congress profit from the environment issue on the cheap,” and it encourages the proliferation of environmental rules. The nation’s constitutional structure was not created with environmental protection in mind. Nonetheless, Saving Our Environment makes a powerful case that more attention to the constitutional values of federalism and legislative accountability would improve the environmental protection we have today.

Legislative Voting on Abortion:

One of the most fascinating chapters in John Jeffries's brilliant biography of Lewis Powell is his analysis of Powell's decision to vote with the majority in Roe v. Wade. Among the factors that Jeffries identifies (few of them having anything whatsoever to do with law or the constitution) was the influence of Powell's three daughters browbeating him (for want of a better word) to vote with the majority.

In that vein, I thought the findings of this new paper on the voting of legislators on abortion issues is interesting (I make no claims one way or the other for the methodology of the paper):


Female Socialization: How Daughters Affect Their Legislator Fathers' Voting on Women's Issues" Yale Economic Applications and Policy Discussion Paper No. 15

Contact: EBONYA L. WASHINGTON Yale University - Department of Political Science, National Bureau of Economic Research (NBER)


Full Text:

ABSTRACT: Economists have long concerned themselves with environmental influences, such as neighborhood, peers and family on individuals' beliefs and behaviors. However, the impact of children on parents' behavior has been little studied. Parenting daughters, psychologists have shown, increases feminist sympathies. I test the hypothesis that children, much like neighbors or peers, can influence adult behavior. I demonstrate that the propensity to vote liberally on reproductive rights is significantly increasing in a congress person's proportion of daughters. The result demonstrates not only the relevance of child to parent behavioral influence, but also the importance of personal ideology in a legislator's voting decisions as it is not explained away by voter preferences.

Conglomerate Blog Junior Scholars Workshop:

Readers may be interested in this week's Junior Scholars Workshop, which features Adam Levitin's excellent new paper, "Finding Nemo: Rediscovering the Virtues of Negotiability in the Wake of Enron." It is a terrific paper on an exceedingly important aspect of modern bankruptcy law and practice.

Bob Lawless and I provide discussion comments.

Is it rational to exclude gay couples from marriage?

Rejecting the due process and equal protection arguments for heightened scrutiny, the New York Court of Appeals in its important decision last week applied rational basis review to the exclusion of gay couples from marriage. This should have been an easy route to denying the plaintiffs’ claims.

As ordinarily applied, rational basis is a very forgiving standard. The law must be (1) rationally related to (2) a legitimate end of the state. The law need not be very wise or very good to survive. As I once heard Richard Epstein memorably describe it, the rational basis standard basically asks whether any fool could come up with a stupid reason for a bad policy.

The New York court offered two rationales to meet this undemanding standard, both of which had to do with children.

“First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships.” (p. 5) Children need permanence and stability in their lives. Yet the heterosexual relationships that produce them, said the court, “are all too often casual or temporary.” Homosexual couples do not become parents by “accident or impulse”; they must plan ahead and obtain children through adoption, artificial insemination, or some other “technological marvels.” Unstable relationships among heterosexuals therefore “present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples.”

Note the irony of this argument. For decades, homosexual life has been medicalized and pathologized by doctors, sexologists, psychiatrists, and politicians. Only 33 years ago, homosexual orientation was still officially a “disorder.” Gays, especially gay men, were denounced as hopelessly promiscuous, unstable, histrionic, and self-absorbed. Above all, this medico-political consensus held, homosexuals were dangerous to children and should be kept away from them. From the outset of the gay-marriage movement, a vocal opposition argued that the supposedly innate instability of homosexual relationships disqualified them from marriage.

Now, in the most important judicial decision yet rejecting a claim for gay marriage, we are told that gay couples may be kept from marriage not because they are unstable, but because heterosexual couples are unstable. Implicit in this view is that gay couples don’t have as large a need for the “inducement” to “make a solemn, long-term commitment to each other.” (p. 6) Implicit also is that gay couples are likely to plan more responsibly for the upbringing of their children. We thus have less reason to worry about the children gay couples are raising. Is the New York legislature listening?

The court is not saying that gay couples are more stable than heterosexual ones. It is saying that the social cost of heterosexual instability is much greater because of the toll it takes on children. And this much seems right. Sexual irresponsibility among heterosexuals imposes huge costs on our society. One-third of children are now born out-of-wedlock. Unwanted pregnancies lead to abortions. Unwanted and uncared-for children are more prone to violence, crime, drug use, ill-health, and so on.

What the New York court has done, then, is give us a very good reason why heterosexual couples should be permitted to marry. Their children badly need them to have the “inducement” marriage provides for the formation of long-term commitments. Otherwise, heterosexuals are too likely to abandon their responsibilities. There is no doubt the state has a “legitimate interest” in the institution we call marriage.

But how is the exclusion of gay couples “rationally related” to this legitimate interest? How does excluding them and their children from the stabilizing influence of marriage help families headed by heterosexuals? How does denying marriage to gay families make heterosexual ones more stable, long-term, and committed? The anti-gay-marriage movement has been trying for more than a decade now to answer these questions, to offer a believable theory of harm.

Whether you think anti-gay-marriage activists have done so convincingly is beside my point here. The point is that the New York court never even tries to answer these questions. The court simply has no explanation, rational or otherwise, for why heterosexual happiness in marriage depends on homosexual exclusion from it. You could come up with such a tale, but the New York court does not do so. The omission is striking.

The New York court offered a second rational basis for excluding gay couples from marriage. “The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father.” (p. 6) In response to social-science studies cited by the plaintiffs concluding that there are no differences between same-sex and opposite-sex couples in raising children, the court argued that the studies did not conclusively establish that the legislature was irrational to prefer heterosexual parents.

I agree with the court that the social-science studies on parenting, to date, do not establish conclusively that children do as well in same-sex households as in opposite-sex ones. The day may come when it would indeed be irrational to doubt this. We’re not there yet.

But once again the key question left unanswered by the court is, how does the exclusion of gay couples from marriage rationally advance the putative preference for heterosexual couples in child-raising? If we were faced with a choice between awarding a child either to a heterosexual or homosexual couple then, all else being equal, it would be rational for the legislature to prefer the former, given the present state of our knowledge. A policy that gave a preference in such cases to heterosexual parents would rationally promote the state’s interests.

But that is not what’s at stake in the question of whether gay couples should be able to marry. If the state could rationally claim that gay couples are incompetent to raise children, that would be one thing. Neither New York nor any other state takes that position, since all states permit gay people to raise children (some, with restrictions and qualifications). In New York, it is possible for a same-sex couple to adopt a child, but not to protect their joint responsibility for that child with marriage. New York guarantees these children will be raised outside of marriage. You could, I think, come up with some explanation for how excluding gay couples promotes what the state regards as the optimal familial arrangement, but the New York court’s analysis of this point is missing.

Let me be clear: I am not saying that existing marriage laws can’t satisfy rational basis review. It would be surprising if they couldn’t satisfy it, notwithstanding the conclusion of the majority of the Massachusetts high court in Goodridge. In fact, the best example of the application of rational basis to uphold the exclusion of gays from marriage is still Justice Cordy’s dissent in that case. His opinion is at once respectful of homosexuals’ claims, temperate in tone, closely reasoned, and a model of the kind of judicial humility associated with the test. By contrast, the New York decision is remarkably thin.

UPDATE: A number of the comments seem focused on filling in arguments the majority could have made on rational basis review (e.g., that marriage includes those couples, and only those couples, that present the problem the state identifies). I have no quarrel with these efforts. The point of the post, however, is that the New York court surprisingly omits these sorts of easy steps in the analysis. It identifies the legitimate end and then stops.

It's worth asking why the court's argument is incomplete. I can only speculate, but I'm guessing it's because the court is reluctant to flesh out in too much detail a very narrow normative vision of marriage that hardly anyone -- outside a few doctrinaire anti-gay-marriage activists -- seems to believe. In order to defend traditional marriage using these types of arguments we have to diminish it as an institution and to demean many existing marriages. That's not a legal problem for judges applying rational-basis review, but it is a cultural problem for anti-gay-marriage activists and for judges who want to be seen as making persuasive arguments, not just minimally rational ones.

Updating the OED IV: New words!

My most ambitious effort so far has been suggesting the new words "cert" and "certworthy." The OED doesn't have "certworthy" (though I think I heard some other dictionaries do), and it has "cert" in an entirely different sense ("this horse is a dead cert to win"). By the way, the OED's recently added entries include "yada yada," "Google" (v.), "calzone," and "fucking A." ("Calzone" indicates that sometimes even a not-new word takes a while to get noticed.)

Here's a portion of the list I sent for "cert" as short for "certiorari" in its adjectival sense (I've tried as much as possible to use popular media, not legal reporters):

1981 N.Y. Times 26 Oct. A20 Court rules limit the requests for review, the "petitions for a writ of certiorari" that everyone calls "cert petitions," to 30 pages. 1989 N.Y. Times 3 Nov. B7 A major Court task is the review of thousands of cert petitions, requests for the High Court to hear cases decided in a lower court. 1994 Christian Science Monitor 28 Nov. 12 The sharp rise in cert petitions since the late 1980s can be attributed primarily to an increase in filings by criminal defendants appealing convictions. 1998 Milwaukee Journal Sentinel 10 Nov. 12 He filed an amicus brief in support of the cert petition. 2001 St. Louis Post-Dispatch 8 Mar. B1 It is something called a writ of certiorari, or, as it is more commonly known, a "cert petition." 2003 New Jersey Lawyer 27 Oct. 1/3 The following Tuesday they consider 60 cert petitions, discuss argued cases and vote on them. 2004 L.A. Times 5 Dec. 18 Having a cert petition granted is roughly 20 times harder than gaining early admission to Harvard. 2005 N.Y. Times 31 Jul. 11 Much of the clerks' work consisted of summarizing the thousands of requests that the court receives each year to hear particular cases, known as petitions for writs of certiorari, or cert. petitions. 2006 Southern Reporter (2d series) CMXXV. 91 In considering the State's cert petition, we deem it necessary to address today only one issue.

Here's the noun sense:

1986 N.Y. Times 24 Jun. A24 One reason I do my own certs [petitions for certiorari, in which parties ask the Court to hear a case], excepting summertime when I let my incoming clerks do them, is that I think the screening process to decide what we should take and decide is as important as the decisional process. 1986 Dallas Morning News 30 Dec. 22b It's also a big chance, if they do grant cert (certiorari), to appear before the U.S. Supreme Court. 1987 New Republic 16 Feb. 18 It takes four votes to grant cert and hear a case. 1990 Journal of Commerce 6 Apr. 10A Industry players have "guarded optimism" that the court will grant "cert," or jurisdiction, in the Reserve Life case, according to Douglas Martin, vice president and counsel at Fireman's Fund Insurance Co., Novato, Calif. 1995 Washington Times 27 Feb. A4 "On occasion it is appropriate to restate the settled proposition that this court's denial of certiorari does not constitute a ruling on the merits," Justice Stevens wrote in a rare commentary on refusal to "grant cert" as lawyers call it. 2002 Legal Times 17 May 1 If the Supreme Court does grant cert, the case will likely occupy a commanding place in the nation's First Amendment jurisprudence. 2004 San Francisco Chronicle 15 Apr. F5 He considered writing a separate brief, but decided the justices would be more likely to grant cert if the attorneys general stood together. 2005 Miami Herald 23 Sept. A3 It is not clear whether the court, which meets starting Oct. 3, will decide whether to "grant cert," before Brownback begins hearing motions at Guantánamo Bay. 2006 American Lawyer Jan. 74 D.C. partner Donald Verrilli, Jr., 48, decided that the usual route for getting the Supreme Court to grant cert — emphasizing a conflict in the circuits — wasn't likely to work.

And, the pièce de résistance, "certworthy," meaning "worthy of review (i.e., granting a writ of certiorari) by the Supreme Court":

1963 U.S. Reports CCCLXXV. 38 Accordingly, while I believe the case is not "certworthy," I would affirm the judgment below. 1970 U.S. Reports CCCXCVIII. 963 I am at a loss to understand how questions of such importance can be deemed not "certworthy." 1970 Federal Reporter (2d series) CDXXXIII. 283 Whatever might be left of the issue on any appeal from the really 'final' final judgment some day to be entered, the case is not certworthy as an interlocutory appeal. 1983 U.S. Reports CDLIX. 447 I question that this case was "certworthy." 1983 U.S. Reports CDLXIV. 58 n.3 Therefore, the Court's conclusion that the claim raised by Williams is not "certworthy" is directly contradicted by the Court's previous actions in Pulley. 1989 Federal Suppl. DCCV. 1314 Counsel in fact took an appeal on Ginsberg's behalf, raising an issue (RICO forfeiture) that was not only a difficult one but was potentially "certworthy." 1990 Federal Reporter (2d series) CMXV. 714 Indeed, until this case, the United States was the primary proponent of limiting the vacatur remedy to certworthy moot civil appeals. 1995 Atlantic Reporter (2d series) DCLXV. 1038 ORDERED, by the Court of Appeals of Maryland, that the writ of certiorari be, and it is hereby, dismissed with costs, the petition having been improvidently granted as it is of no prospective importance and thus not certworthy in light of 1995 Laws of Maryland, Chapter 625, effective October 1, 1995. 1996 Federal Reporter (3d series) CI. 980 Were we to grant the stay of execution here, I believe that we would, alternatively, court summary reversal or affirmatively mislead the Supreme Court into concluding that we believe that the underlying issue in this case is certworthy when we do not so believe. 2004 Metropolitan Corporate Counsel Aug. 23/1 This article explains the cert petition process, sets forth the considerations affecting whether to file an opposition, and discusses the indicia of a "certworthy" case. 2005 Legal Times 15 Aug. 60 The office is understandably concerned that if it began expressing its view that certain private cases were certworthy, the Court would draw a negative inference with respect to all other cases, in effect requiring the office to assume the herculean task of reviewing all pending petitions. 2006 Legal Times 20 Mar. 11 It strikes me that the case is quite clearly "un-certworthy."

Next post: We enter the 7th century!

P.S. In case you were interested in the first post of this series, there are some updates, based on the comments. Query: Why are there comments on the first and third posts, but no interest in "Mirandize" (second post)?

UPDATE: Reader Arthur Hellman gets a prize! In the comments, he posted the citation of a Harlan speech to the N.Y. City Bar Ass'n from... 1958. Once I verify this, it goes to the OED in an update e-mail.

Judges Banning Gay Marriage:

From this morning's A New York Times:

Perhaps most telling of all, the state's highest court ruled last week that gay couples cannot legally marry, and explained its decision by suggesting that heterosexual parents might be better suited to child rearing.

Banning gay marriage is one thing in Georgia, and judges there did just that the very same day. But in New York? This supposed bastion of liberalism, the birthplace of the American Communist Party, the N.A.A.C.P. and the gay rights movement?

Except that the judges didn't ban same-sex marriage, either in New York or in Georgia. They simply found no grounds to invalidate existing legal rules specifying that only opposite-sex marriages will be legally recognized. The bans were enacted by the legislature (in New York) or by the voters (in Georgia) -- the judges upheld the bans as constitutional, rather than banning gay marriage themselves.

The story later says that the New York court decision leaves the matter to the legislature, so the story isn't entirely mistaken on this score; the careful reader will grasp that characterizing the decision as involving "judges" "[b]anning gay marriage" is imprecise. Still, it's too bad that the concept of judges actually enacting a policy decision has gotten so confounded in people's (including journalists') minds with the concept of judges simply letting stand others' policy decisions.


Monday, July 10, 2006

Jay-Z's Cristal Boycott:

Rap megastar Jay-Z has decided to boycott Cristal champagne. After years of touting the brand in songs and videos, Jay-Z has had a change of heart. Is it because Cristal marketing disproportionately targets African-Americans? Nope. Rather, Jay-Z is upset because a corporate executive apparently dissed Cristal's hip-hop clientele in a recent interview. [Writes Washington Post columnist Jabari Asim in response:]

So that does it. No more bottles of this high-priced bubbly for me. The next time I'm at Plumm, the swank Manhattan nightspot, I'll tell the waiter to fill my flute with Dom P. Rose, a variety Jay-Z is experimenting with these days.

Seriously, though, I'm not mad at Jay-Z for expressing his displeasure. Just as with women and others who have taken offense at his sexist, misogynist lyrics, he has a right to be peeved by what he sees as disrespectful treatment. But there are far bigger alcohol-related problems among the urban population that helps keep his tunes at the top of the charts, and he would probably be quick to agree.

Perhaps, but Jay-Z's actions would seem to suggest otherwise. The rapper once known as Shawn Carter is focusing his ire on those alcohol producers who eschew the black [fail to enthusiastically embrace the hip-hop] market, rather than those who target young black consumers. So much for boycotts as a tool of social change.

UPDATE: I agree that the above post was inartfully worded, so I've revised the post. My point is that Jay-Z seems more concerned about a minor slight than he is at broader social change. That's his right, but it hardly places him above criticism. If, as reported, it was simply the comments to The Economist reproduced below that got Jay-Z's "rhymes in a twist" (in Asim's words), I think it's fair to suggest that Jay-Z has some misplaced priorities.

Just who these ultra-fancy champagnes are aimed at is a slightly sensitive issue. Cristal was originally created exclusively for the Russian tsars. Jean-Claude Rouzaud, who managed the Louis Roederer winery until his retirement earlier this year, once said: “We make our champagne for that 3-5% of consumers who really know wine, and who take the time to taste it correctly.”

The reality is rather different, at least in the United States. Today, the most high-profile consumers of Cristal are rap artists, whose taste for swigging bubbly in clubs is less a sign of a refined palate than a passion for a “bling-bling” lifestyle that includes ten-carat diamond studs, chunky gold jewellery, pimped up Caddies and sensuous women. In his number one hit “Hard Knock Life”, Jay-Z raps, “Let’s sip the Cris and get pissy-pissy”. Cristal has been so visible at Mr Combs’s concerts that onlookers have wondered whether the venerable champagne house was sponsoring the event.

In fact, the attitude of the house of Roederer to the unexpected popularity of Cristal among rappers is considerably more circumspect. Frédéric Rouzaud, who took over from his father as managing-director of the winery in January, says that Roederer has observed its association with rap with “curiosity and serenity”. But he does not seem entirely serene. Asked if an association between Cristal and the bling lifestyle could actually hurt the brand, he replies: “That’s a good question, but what can we do? We can’t forbid people from buying it. I’m sure Dom Pérignon or Krug would be delighted to have their business.”

Rousaud's not embracing Cristal's high hip-hop profile, but it is not as if he said (as one commenter suggested) "we don't want black people consuming our products." Had Rousaud made such explicitly racist comments, it would be a different matter entirely.

Of course Jay-Z is free to boycott whomever he wishes, but my belief in the use of boycotts to alter marketplace behavior hardly precludes me from criticizing those boycotts that I doubt are warranted. My point, and that of the Jabari Asim column that prompted my post, is that Jay-Z seems to have his priorities out of whack (as do many groups on both left and right that have embraced boycotts in recent years). Asim cites data showing that alcohol advertising is disproportionately targeted at African-American youth and that there are more alcohol references in rap music than in other genres. Further, he reports that the "age-adjusted death rate from alcohol-induced causes for blacks is 10 percent higher than that for the general population." It is not paternalistic to believe that there might be some connection here, and to hope that those with the ability to influence others take note of unwelcome social trends. While I like Jay-Z's music, I would have more respect for his social consciousness were his calls for a boycott motivated by something more substantial than a perceived slight.

Conflicts of Interest in Science:

Medical researchers Thomas Stossel and David Shaywitz argue in the Washington Post that recent criticisms of supposed "conflicts of interest" in science have gone overboard, and may compromise continued progress in medical research.

Over the past two decades, private biotechnology firms and other drug companies have increasingly played a major role in cutting-edge medical research. These companies have built relationships with many of the best and brightest academic scientists, helping to bring about huge advances in medical treatment, including powerful new hormones and anti-cancer drugs as well as new devices that repair heart damage. But they have also drawn scrutiny from those who believe that, with so much money at stake, corruption must surely be present. Instead of assuming that scientists would want, above all, to protect their reputations and their research, critics have assumed the worst — and have underestimated the positive impact of relationships between university researchers and companies.

There is no question that some researchers may be influenced by their sources of funding. Research protocols may be altered to increase the likelihood that test results please private benefactors or generate government grants. But a given study or scientist's source of funding does not inherently taint research results. Over time, the scientific process weeds out those results that result from sloppiness or greed. Those who attack private funding of scientific and medical research have sought to don the public interest mantle, but if they are successful, we will all be worse off.

Medical care available to Americans is immensely better today than when we began our careers in medicine, in large measure because physicians have far superior technology at their disposal. And while much of the knowledge underlying these developments originated in universities, it was biotechnology firms and other companies that transformed this knowledge into the new drugs and devices that have proved so useful to the public. Little of this technology — be it vaccines for hepatitis, heart valves, or new anti-inflammatory drugs for rheumatoid arthritis — was developed by scholars and researchers without supposed conflicts of interest.

Who Is Sovereign in Massachusetts -- the Justices or the People?

In today's Schulman v. Attorney General, the Massachusetts Supreme Judicial Court rejected a pre-election challenge to an initiative constitutional amendment that would overrule the court's same-sex marriage decision. The Massachusetts Constitution bars initiatives from "revers[ing] ... a judicial decision," but the court unanimously (and in my view correctly) held that this applied to attempts to reverse a decision as between the two parties involved — it doesn't bar the overruling of a judicial decision that interprets the state constitution.

But Justices Greaney and Ireland wrote a separate concurrence to address a different matter (emphasis added):

In Goodridge v. Department of Pub. Health, we held: “The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are ··· homosexual. ‘The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.’ Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984)···· Limiting the protections, benefits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under the law protected by the Massachusetts Constitution.”

There can be no doubt after the Goodridge decision that the Massachusetts Constitution protects the right of a couple who wish to marry, and are otherwise eligible to marry, to obtain a marriage license, regardless of gender. It is equally clear that the proposed initiative is directed toward withdrawing this right from a distinct segment of our community, thereby prohibiting, as matter of constitutional law, same-sex couples from committing to civil marriage and from attaining the multitude of legal rights, and financial and social benefits, that arise therefrom. The proposed initiative cannot be said to further a proper legislative objective (as was categorically decided by the Goodridge court, there is none). The only effect of a positive vote will be to make same-sex couples, and their families, unequal to everyone else; this is discrimination in its rawest form. Our citizens would, in the future, be divided into at least three separate and unequal classifications: heterosexual couples who enjoy the right to marry; same-sex couples who were married before the passage of the amendment (but who, if divorced, would not be permitted to remarry someone of the same sex); and same-sex couples who have never married and, barring the passage of another constitutional amendment on the subject, will be forever denied that right.

There is no Massachusetts precedent discussing, or deciding, whether the initiative procedure may be used to add a constitutional provision that purposefully discriminates against an oppressed and disfavored minority of our citizens in direct contravention of the principles of liberty and equality protected by art. 1 of the Massachusetts Declaration of Rights.... [T]he Goodridge decision may be irreversible because of its holding that no rational basis exists, or can be advanced, to support the definition of marriage proposed by the initiative and the fact that the Goodridge holding has become part of the fabric of the equality and liberty guarantees of our Constitution.

If the initiative is approved by the Legislature and ultimately adopted, there will be time enough, if an appropriate lawsuit is brought, for this court to resolve the question whether our Constitution can be home to provisions that are apparently mutually inconsistent and irreconcilable. We may then give careful consideration, in view of what has been said above, to the legal tenability and implications of embodying a provision into our Constitution that would look so starkly out of place in the Adams Constitution, when compared with the document's elegantly stated, and constitutionally defined, protections of liberty, equality, tolerance, and the access of all citizens to equal rights and benefits.

This strikes me as deeply wrong: The Massachusetts Supreme Judicial Court is saying that its judgments about equality and fairness under the Massachusetts Constitution trump not only the judgment of the legislature, but the judgment of the people amending the constitution itself.

And this, it seems to me, goes to the heart of sovereignty. Judicial review has pluses and minuses, but its premise (which I believe generally justifies it) is that the people have ordained a Constitution as the supreme law of the land. Judges must therefore enforce this supreme law as against any legislative enactments, or even the enactments of the people voting as ordinary legislators. The judges are thus acting as servants of the sovereign people, carrying out the people's instructions. One problem, of course, is that sometimes the people of today may want something other than what the people of the constitution-writing era did; another is that judges may wrongly interpret constitutional provisions. But at least in principle (and in practice, especially in states, where the constitutions are easier to amend than the federal constitution) both problems can be solved through the constitutional amendment process.

But here the two judges are suggesting that the ultimate decisions are to be made by judges, and the people have no right to the final say on the subject. Under this theory, the judges end up being the ones who are sovereign, with the legal principles that they set forth being immune from control by the people. That, I think, would be a very bad result. Even if one thinks that sometimes judges may use this sovereign power in fairer ways than the people do, the same can be said about dictatorship or monarchy (or even dictatorship or monarchy limited to particular topics). The premise of democracy, including of constitutional liberal democracy, is that the best — not the perfect, and often not even very good (consider Churchill's famous line about democracy), but the best — place to repose sovereign power is in the people, not in Philosopher-Kings.

* * *

Three details:

1. The Massachusetts Constitution does exclude certain topics from the scope of the initiative; but that at least is a limitation on sovereign power that the people of the past expressly adopted. If anything in the Massachusetts initiative process is unconstitutional, it is the attempt to entrench this limitation as being forever unamendable ("No part of the constitution specifically excluding any matter from the operation of the popular initiative and referendum shall be the subject of an initiative petition; nor shall this section be the subject of such a petition"), because that would leave sovereign power forever in the hands of the people of the past, rather than of the people of the present. Yet even that is better than leaving it in the hands of the Justices, who are adding to the prohibited matters section of the constitutional amendment provision.

2. To my knowledge, the Massachusetts Constitution provides no standard constitution-making alternative to Massachusetts voters besides the initiative constitutional amendment (as opposed to, say, impeachment, which isn't itself a constitution-making process) and the legislatively proposed (and then popularly voted on) constitutional amendment; the two Justices certainly don't point to one. And presumably the Justices' reasoning would forbid legislatively proposed constitutional amendment overruling Goodridge just as it would apply to initiative constitutional amendments. So it's not just a matter of the two Justices saying, "you can't use the initiative, you must use some other process instead" — as I read them, they're saying that the voters lack sovereign power over this subject at all.

3. It is possible for an initiative constitutional amendment to violate the U.S. Constitution; but this is not the argument that the two Justices are making in the body of their opinion. They do suggest such a possibility in a footnote, but devote the body of the opinion to the argument that the amendment might violate the Massachusetts Constitution. The difference is important, because any Massachusetts Supreme Judicial Court decision striking down a state constitutional amendment on federal grounds would be reviewable by the U.S. Supreme Court; on federal matters, the state supreme court has no hope of usurping sovereignty. On the other hand, a decision striking down the amendment on state grounds would be final, as far as the federal courts go, unless the courts conclude — unlikely, given current precedent — that such a state judicial decision violates the Republican Guarantee Clause of the U.S. Constitution.

UPDATE: Some commenters suggested that the two Justices' position might be sound, on the theory that (1) if the initiative passes, it will be inconsistent with another part of the state constitution (as the state Justices have interpreted it), and (2) it may therefore be sensible (or at least poses "an intriguing question" of constitutional methodology) for the Justices to decide that the older provision prevails over the new one.

That seems to be quite the wrong approach for dealing with constitutional amendments. The point of amendments is to change the constitutional status quo; that oftens (on some definitions of the terms, always) involves superseding an old provision — or an interpretation of an old version — with a new one.

Just to take a few examples from the more familiar to us federal Constitution, the Eleventh Amendment changed that part of article III, as interpreted by the Supreme Court, that conveyed jurisdiction over certain disputes to the federal courts. The Twelfth Amendment replaced part of the original Constitution's system of electing the President and Vice-President. The original Constitution left slavery to the states (even to the extent that it was silent about slavery, that under the constitutional scheme left states to make the decision); the Thirteenth Amendment was inconsistent with that old constitutional rule, and superseded it. The original Constitution could have been (and, despite Madison's arguments to the contrary, likely would have been) interpreted to let the Congress exercise its enumerated powers in ways that interfered with speech, or involved unreasonable searches; the Bill of Rights was inconsistent with that old structure, and superseded it.

So when a new constitutional provision specifically sets forth a result that is contrary to that mandated (or mandated in the view of the courts) by an old provision, the new provision should prevail: The whole point of constitutional amendments is that they replace the old with the new. Anything else leaves sovereignty either in the people who enacted the old provision, or in the judges who interpreted that old provision, or in the judges who decide based on some subjective judgment whether the old provision should prevail or the new one. The last-in-time-prevails rule is the only proper rule here. (I set aside the situation where the new rule doesn't clearly contradict the old rule, for instance when the new rule is more general and the old is more specific; in this case, the new rule — no same-sex marriages recognized — would definitely contradict the old — recognition of same-sex marriages mandated by the state constitution.

Related Posts (on one page):

  1. Laurence Tribe Responds About the Massachusetts Justices' Concurrence:
  2. Who Is Sovereign in Massachusetts -- the Justices or the People?
Zidane's Meltdown:

Hoya makes an interesting observation regarding David's earlier post on the Zidane meltdown in the World Cup championship yesterday. Hoya writes:

Was Zizou scanning the field for the location of the officials before he turned to deliver that head butt? It looks like he was seeing where their attention was focused before he returned to lay out that dude. If so, it was not simply hotheaded. (And it did turn out that none of the three regular officials saw the infraction, so Zizou may well have known just what he was doing.)

This is an interesting observation and strikes me as probably correct. One of the things that was so curious about Zidane's behavior was that he was simply walking away before he suddenly turned and leveled Materazzi. Zidane certainly was walking as if he may have been scanning the field to see if the referees were watching, then turned and butted him. In fact, he probably would have gotten away with it but for the scoreboard replay. News reports indicate that in fact none of the referees actually did see it live, but instead busted him after one of the linesmen saw the replay on the scoreboard while Materazzi was down.

The other thing about Hoya's hypothesis that Zidane simply thought he'd get away with is was his demeanor during the whole incident--he didn't really act like he had lost his cool. Instead, he seemed quite cold-blooded and calm about the whole thing. His expression never changed throughout the whole incident. Then once he got busted he simply walked off the field--didn't argue or anything else.

So he may just have been dirty rather than hot-headed. As has been widely noted, Zidane has some reputation as a cheap-shot artist through the years. If Zidane actually was taking a calculated gamble then this would get away with a cheap shot under these circumstances, and he would have but for instant replay in the stadium, then this certainly seems to state some case for more widespread use of instant replay in soccer.

Did the referees use instant replay to bust him? According to Steven Goff, FIFA's official position today is no, the fourth referee saw the head butt and relayed it to the on-field officials. Perhaps this is what actually happened, but earlier reports said that one of the linesmen saw an instant replay on the scoreboard while play was stopped.


One other piece to add to the confusion--Sports Illustrated's World Cup blog says, "Obviously, Elizondo got it right, but it did seem as if he did so by accident. Elizondo didn't see the head butt, and the linesman didn't make the kind of ruckus you'd expect if he had seen it. Not until the fourth and fifth officials saw the replay on the sideline was Zidane given the gate."

FBI Search of Rep. Jefferson's Congressional Office Upheld:

The decision is here. Among other things, the court rejected the argument that the search was improper because it could have captured lawfully privileged confidential Congressional documents, as well as the unprivileged evidence of Jefferson's bribe-taking. (I thought most of Rep. Jefferson's claims were quite weak, but that this one was at least more plausible.) Here's the core of the court's reasoning on this:

The fact that some privileged material was incidentally captured by the search does not constitute an unlawful intrusion.[fn7] See In re Possible Violations of 18 U.S.C. §§ 201, 371, 491 F. Supp. 211, 214 n.2 (D.D.C. 1980) (“The Speech or Debate Clause does not protect confidentiality of material”). The Speech or Debate Clause is not undermined by the mere incidental review of privileged legislative material, given that Congressman Jefferson may never be questioned regarding his legitimate legislative activities, is immune from civil or criminal liability for those activities, and no privileged material may ever be used against him in court.

Amicus contends that even a review of the documents by the Court to determine privilege is unconstitutional. See Amicus Brief 29. Contrary to the arguments of amicus, legislators do not have the right to determine the scope of their own privilege under the Speech or Debate Clause. The Founders expressly rejected a constitutional proposal that would have permitted Members collectively to be the exclusive judges of their own privileges. 2 Records of the Federal Convention of 1787 503 (Max Ferrand ed., 1966). In opposition to the proposal, Madison explained that it would be preferable “to make provision for ascertaining by law” the extent of privileges “previously & duly established” rather than to “give a discretion to each House as to the extent of its own privileges.” Id. Indeed, it is the Judicial Branch that ascertains the requirements of the law in accordance with Article III of the Constitution. See United States v. Nixon, 418 U.S. 683, 704-05 (1974) (citing The Federalist No. 47, at 313 (S. Mittell ed., 1938)).

[fn7] The cases that address how to remedy the improper use of protected legislative material in a criminal prosecution support the proposition that the mere disclosure of Speech or Debate material to the Government does not offend the Constitution, as in those cases, privileged material had certainly been exposed to the Government. The remedy imposed in those cases was simply that the material was excluded from use against a Member of Congress. See Johnson, 383 U.S. at 185 (“With all references to [Speech or Debate material] eliminated [from the indictment], we think the Government should not be precluded from a new trial on this count, thus wholly purged of elements offensive to the Speech or Debate Clause.”); United States v. Rostenkowski, 59 F.3d 1291, 1300 (D.C. Cir. 1995) (“[T]he Government does not have to establish an independent source for the information upon which it would prosecute a Member of Congress. Rather . . . the Member must show that the Government has relied upon privileged material.”); Id. at 1301 (where “the indictment is valid on its face, the Speech or Debate Clause does not require pre-trial review of the evidence to be presented at trial”); United States v. McDade, 28 F.3d 283, 300 (3d Cir. 1994) (even if two overt acts were alleged in violation of the Clause, there were “numerous other overt acts” to support the indictment); United States v. Myers, 635 F.2d 932, 941 (2d Cir. 1980) (dismissal not required although grand jury heard “some evidence of legislative acts that is privileged by the Speech or Debate Clause”); compare United States v. Helstoski, 635 F.2d 200, 205-06 (3d Cir. 1980) (indictment must be dismissed where the “improper introduction of privileged matter permeated the whole proceeding”). None of these cases suggest that the exposure of protected legislative material to the Government violated the Speech or Debate Clause.

Related Posts (on one page):

  1. FBI Search of Rep. Jefferson's Congressional Office Upheld:
  2. The Constitutional Argument Against the Search of the Congressman's Office:
Common Problems in Post-Kelo Reform Legislation:

Over the last few weeks, I have blogged extensively about the fact that much of the legislation produced by the Kelo backlash actually does little or nothing to curb eminent domain abuse. Many new laws that seem to restrict condemnation of property for "economic development" actually have loopholes that keep them from doing so. Legislators often have incentives to enact ineffective "reforms" because it is often difficult for nonexpert voters to tell the difference between real reforms and purely cosmetic ones.

This handy Institute for Justice white paper has a helpful list of common pitfalls to look for in post-Kelo legislation:

Common pitfalls in proposed reform legislation:

• Giving a complete exemption for any property taken under urban development laws and failing to change the [often very expansive] definition of blight.

• Forbidding eminent domain for economic development without defining economic development.

• Forbidding condemnation for “solely” or “primarily” for economic development or private benefit. Whether a particular condemnation is solely or primarily for a particular purpose requires a judge to look at the intent of the governmental decision-makers. The legality of eminent domain should not depend on the subjective motivations of city officials, and proving intent as a factual matter is extremely difficult.

• Creating specific exemptions for pet projects. This will set a bad precedent for the future.

• Forbidding only ownership by private parties but not control. This leaves open the common practice of sweetheart lease arrangements.

• Making loopholes or accidentally omitting some of the political entities that engage in condemnation for private development.

I would add a few points of my own to the IJ list:

1. Requiring that condemnation be for a "public use" without defining "public use," thus implicitly endorsing the almost limitless status quo definition of t the term (Delaware).

2. Requiring that condemnations be for a "public" as opposed to "private" benefit or "purpose," a formula that sounds good but in practice will permit virtually any taking. For an excellent example, see President Bush's recent executive order on Kelo).

3. An otherwise comprehensive ban with major geographic exemptions (e.g. - Pennsylvania's law, which exempts most condemnations in Philadelphia and Pittsburgh,the state's two largest cities). Sometimes, the exemptions are craftily hidden under euphemisms such as "Area 1," "Area 2," etc.

4. Punting the issue to a newly created "special commission," especially one stacked with representatives of development interests and other beneficiaries of open- ended condemnation rules (Ohio).

5. Seemingly banning takings for economic development, but actually permitting them to continue under another name, such as "community development" (Texas).

It is probably unrealistic to expect ordinary voters to closely scan the text of proposed legislation to look for these kinds of subterfuges. But if you are a state legislator, legislative staffer, political activist or otherwise influential person who cares about property rights, I hope you will take the time to check your state's proposed post-Kelo laws (for quick access to the text of all such laws, both proposed and already enacted see here). If you find any of the above tricks in there, I hope that you will do what you can to get them out.

The details of the Delaware, Ohio, Texas, and Pennsylvania laws are discussed in my forthcoming article on Kelo.

CONFLICT OF INTEREST WATCH: As noted here, I am a former Institute for Justice summer clerk, and have done pro bono work for IJ in recent years.

Related Posts (on one page):

  1. Common Problems in Post-Kelo Reform Legislation:
  2. The Institute for Justice on Post-Kelo Eminent Domain Reform:
Updating the OED III: Habeas --

The OED lists "habeas" as "short for habeas corpus" and gives a single example from 1879. (1879 SALA in Daily Tel. 26 June, The unterrified man moved himself by habeas to the Fleet.) It doesn't give a part of speech, but in that example it was a noun. Of course, lawyer types use "habeas" in this meaning, both as a noun and as an adjective, all the time. Here are some nouns:

1935 South Western Reporter (2d series) LXXIX. 866 That after certain cases, including the one against relator, were set for trial on September 25, 1928, and after the cases were called on said date for final action, it was made known to the court that the indictments in said cases were returned some years before; that habeases were duly issued but after diligent search defendants could not be apprehended, etc. 1945 U.S. Reports CCCXXV. 839 The motion for leave to file petition for writ of habeas is denied. 1980 U.S. Reports CDXLIX. 140 On federal habeas, this Court held that the Maryland system did not violate the Clause. 1986 U.S. Reports CDLXXVI. 1177 This case, then, falls squarely within the "ends of justice" exception to the general rule forbidding successive assertions of the same claim on habeas. 1989 U.S. Reports CDXCIII. 909 On state habeas, the Circuit Court held, tersely, that "the jury was properly instructed as to all matters and findings that they were required to make, including but not limited to evidence in mitigation of punishment." 1994 U.S. Reports DX. 1146 n.2 Even if Callins had a legitimate claim of constitutional error, this Court would be deaf to it on federal habeas unless "the state court's rejection of the constitutional challenge was so clearly invalid under then-prevailing legal standards that the decision could not be defended by any reasonable jurist." 1996 U.S. Reports DXIX. 146 Witt was a case arising on federal habeas, where deference to state-court findings is mandated by 28 U.S.C. § 2254(d).
And here are some uses as an adjective:
1894 Southern Reporter XIV. 535 Cy was examined before the coroner's jury, on a habeas trial, before the grand jury, and in the circuit court, where he made statements substantially as above set out. 1914 North Western Reporter CXLIV. 894 That the court permitted the witness, Samuel B. Dennison, to read in evidence the stenographic notes of the testimony of one Leonard Busby, as well as of testimony of defendant, given in a habeas proceeding before Judge Landis in Chicago, Ill. 1963 U.S. Reports CCCLXXII. 397 The first was that the denial of state post-conviction coram nobis relief on the ground of Noia's failure to appeal barred habeas relief because such failure constituted an adequate and independent state ground of decision, such that this Court on direct review of the state coram nobis proceedings would have declined to adjudicate the federal questions presented. 1976 U.S. Reports CDXXVII. 118 n.4 In Stout v. Cupp, a habeas proceeding, the court simply quoted the District Court's finding that if the suppressed evidence had been introduced, "the jury would not have reached a different result." 1987 U.S. Reports CDLXXXI. 556 The procedures followed by respondent's habeas counsel fully comported with fundamental fairness. 1997 U.S. Reports DXX. 466 Others came here by way of federal habeas challenges to state convictions. 2003 U.S. Reports DXXXVII. 507 The habeas court also must engage in a painstaking review of the trial record solely to determine if it was sufficient to support the ineffectiveness claim and thus whether it should have been brought on direct appeal. 2003 U.S. Reports DXL. 18 We may not grant respondent's habeas petition, however, if the state court simply erred in concluding that the State's errors were harmless; rather, habeas relief is appropriate only if the Ohio Court of Appeals applied harmless-error review in an "objectively unreasonable" manner.
The OED also lists occurrences of "habeas corpus," in its full form, but only as far forward as 1827. Obviously, we use it all the time in the law, but listing examples of that wouldn't be interesting here.

Next post: Submitting new words! P.S. The first post in this chain has some updates, partly based on recent comments.

More for the "Truth is Stranger than Fiction" file:

Yesterday's World Cup final saw the strangest thing I've ever seen in a sporting event (and I go back a ways — '55 Dodgers winning the World Series is my first sports memory). I've been trying to think of a U.S. equivalent, for those many readers who don't follow "the beautiful game" regularly, and here's what I've come up with. Pick some sporting giant, beloved and admired by all, even opponents and fans of opposing teams, for the sheer elegance and grace and beauty of his play — someone like Magic Johnson, or Wayne Gretzky, or Derek Jeter. Say it's Jeter. It's Game 7 of the World Series. Jeter has announced before the Series began that he would be retiring from baseball forever when the Series is over. So this is the last we'll see of him on the field. It's a real nail-biter, tied 1-1 in the bottom of the ninth. Oh, and baseball has adopted a new rule: no extra innings. Any game tied at the end of regulation is decided by a home run derby. As the teams change sides in the bottom of the ninth, Jeter, for no apparent reason and in full view of everyone, slugs the opposing first baseman in the jaw; he is, of course, thrown out of the game, leaving his club Jeter-less in the homerun derby that follows. His club predictably, loses.

And multiply everything — the intensity of the game, the number of people watching and hanging on every pitch, the passion of the fans — by 100 or so.

That's basically what happened, with Zinedine Zidane playing the Jeter role. Five minutes or so after coming achingly close to putting France ahead 2-1, in the 104th minute, with a beautiful header that the Italian goalkeeper pawed over the crossbar with an absolutely brilliant save, he walks over to one of the Italian defenders and head-butts him, hard, in the chest. He gets shown the red card; France loses the shootout. Strangest damned thing I've ever seen . . . What could possibly have been going through his mind?

More on Sex and Supreme Court Clerks:

Ann Althouse (whose work I generally very much like) bristles at one of the several candidate explanations I included in my earlier post:

Eugene Volokh asks why are there so many more male Supreme Court clerks than female? His first guess is:

Is the cause possible differences in innate intelligence at the tail ends of the bell curve (what I'd heard called the idiot-genius syndrome, which leads men to be overrepresented both among the very low-IQ and the very high-IQ)?

Oh, please. I know it's in question form, but really...

Perhaps I misunderstand Ann's reason for the "Oh, please." Still, I'd have thought that when one is seeking the causes of disparities such as this, the possibility of men's biologically caused overrepresentation at the tail ends of the IQ bell curve must be one candidate explanation that one should consider. Even if the effect is relatively small, too small to explain by itself a 2.5 to 1 disparity (just to use as an example the disparity the year I clerked), it may still be important as one of the explanations: Five causes, each of which would cause an extra 1.2 to 1 disparity, can multiply out to 2.5 to 1. And I'd think that any analysis that infers some cause -- or estimates the magnitude of some cause -- from the disparity but fails to consider this other possible cause would itself be unsound.

Of course this potential explanation might ultimately prove to be entirely unsound -- but is there really any a priori reason why we should dismiss it as implausible? Has scientific research, for instance, conclusively dismissed this possibility? I'd be delighted if people who (unlike me) have actually seriously studied sex-based cognitive differences (or the absence of such differences) could speak to that.

(I should note that my listing the possibility of intelligence differences first wasn't meant to suggest that I think this is likely the most important factor, just as my listing the possibility of sex discrimination second wasn't meant to suggest that I think it was the second most important factor. I really don't know which if any of the factors are important, or how important they are.)


Sunday, July 9, 2006

Sunday Song Lyric: Well, I've finally done it. I've moved to the suburbs. After thirty-plus years of city life (which, I admit, I still prefer in many respects), Redheadlaw7, the Ellster and I are now settling in a mid-sized neo-colonial house in northeast Ohio. This is truly suburban life, complete with homeowners association and wetlands in the back yard.

As this is my first blog post from our home, I figured it was appropriate to post a song lyric that reflects the situation. For this purpose, nothing could be better than Ben Folds' "Rockin' the Suburbs" as re-recorded for the Dreamworks movie Over the Hedge.

Here are the lyrics (minus the mid-song William Shatner rant, available here):

Let me tell y'all what it's like
Watching idol on a friday night
In a house built safe and sound
On indian burial ground
Sham On

We drive our cars everyday
To and from work both ways
So we make just enough to pay
To drive our cars to work each day

We're rocking the suburbs
Around the block just one more time
We're rocking the suburbs
Cause I can't tell which house is mine
We're rocking the suburbs
We part the shades and face facts
They got better looking Fescue
Right across the cul de sac

Hotwheels take rising stars
Get rich quick seminars
Soap opera magazines
40,000 watt nativity scenes
Don't freak about the smoke alarm
Mom left the TV dinner on

Yet we're rocking the suburbs
From family feud to Chevy Chase
We're rocking the suburbs
We numb the muscles in our face
We're rocking the suburbs
Feed the dog and mow the lawn
Watching mommy balance the checks
While daddy juggles credit cards

We're rocking the suburbs
Everything we need is here
We're rocking the suburbs
But it wasn't here last year
We're rocking the suburbs
You'll never know when we are gone
Because the timer lights come on
And turn the cricket noises on each night
Yeah, yeah, we're rocking the suburbs
Yeah, yeah, we're rocking the suburbs
Ben Folds himself talks about recording this and several other songs for Over the Hedge here. For more blog commentary, see here. For the song's original lyrics, see here.
Triple Bleg

I would be grateful for information on any of these three topics:

1. If a person likes Green Day's sound, but not their politics, what other bands might the person enjoy?

2. What do you recommend as an entry-level shotgun for a pre-teen? It's really important that the stock be short, to accomodate short arms. If the shotgun will only be used on clay birds, and never for hunting live animals, is there any disadvantage to 28 gauge or .410?

3. I am looking for a web-based traffic meter for my website. I already run SiteMeter, but that of course covers only the home page. The website includes hundreds of different htm and pdf files, and I would prefer not to have to install new code on every single page. The solution cannot involve installing software on the website server. I realize that there is no free program which will do the the trick.


UPDATE: Thanks to the many excellent and thoughtful commenters! Here's what I did:

1. For Green Day substitutes, I'm starting with MxPx and Mr. T Experience. I will be checking out the many other bands highlighted by the commenters. (BTW, the music isn't for personal use; it's for someone else. I'm not punk.)

2. For the gun, I got the New England Firearms single-shot youth shotgun. It was the only gun I found that really fit well and was comfortable for the pre-teen to hold. I really like the fact that it's a break-open, that it's single shot, and that the hammer has to be manually cocked before a shot can be fired. Custom stock-fitting makes a lot of sense, but I couldn't bear to spend the money. (The NEF is a real bargain; only $107 at Cabelas.) Recoil would certainly be reduced with a gas-operated semi-auto, and I'm sure that's a good choice for some folks, but I agreed with commenters who suggested that a semi-auto might not be the right starter shotgun for my situation. At Cabelas I discovered that Remington sells a recoil-absorbing gel pad which can be inserted in an interior shoulder pocket in some shooting vests. We tried it out today, and its works superbly.

3. I'm adding the sitemeter code my Dynamic Web Templates. I will also explore getting ahold of the server logs.

Thanks again for all the great advice!

Updating the OED II: Mirandize --

My last post recounted the story of how I found usages of "absent," in its "quasi-prepositional" (so says the OED — but why quasi?) sense of "without," dating back to 1888, not the 1944 that the OED now reports. Well, if the OED has incomplete research on American legal usages, and I have good legal research skills, perhaps there are other opportunities for discovery? Here is the substance of my e-mail on the verb "Mirandize," which the OED has going back to 1984:

1971 California Reporter XCVI. 128 The Court did not Mirandize the defendant. 1983 State v. Ralston, Ohio appellate case reported in the Westlaw legal database at 1983 WL 4365, page 2, footnote 1, and in the LEXIS legal database at 1983 Ohio App. LEXIS 11918, page 7, footnote 1. While "Mirandize" is not a verb, yet, it succinctly describes the procedural warning required by Miranda v. Arizona (1966). 1983 Pacific Reporter DCLXXII. 511 At one of the interviews, a police officer failed to "Mirandize" the defendant "because he felt that urgency of time required immediate discovery of [the missing victim]."

Also, State v. Ralston has the past participle "Mirandized" ("According to the State, the appellant was "Mirandized" on ten separate occasions."). The OED lists "Mirandized" as an adjective ("a properly Mirandized defendant") with evidence back to 1988, so I suggested State v. Ralston as as a 1983 source for this too, even though they may reject it depending how serious they want to be about the past participle/adjective distinction.

Data on Women in Legal Academia:

In line with the discussion on the relative paucity of female Supreme Court clerks, it is interesting to note that the data show a very similar percentage of women in legal academia. According to the American Association of Law Schools, 35.3% of law school faculty were women as of the 2004-2005 academic year.

There may, however, be a generational transition going on, since the same AALS data show that 48.5% of assistant professors are women (the lowest rank of tenure-track faculty members), compared to 25% of full professors (the highest rank). Obviously, full professors are on average significantly older than assistant profs, and generally come from generations where women were less likely to pursue careers in law or academia. Other AALS stats show that female faculty are promoted to tenure at roughly the same rate as men with 61.6% of female and 65.9% of male tenure-track faculty hired in 1996-97 being promoted to tenure within 8 years; most law schools require tenure track faculty to get tenure or leave within 7 years of appointment.

However, it is still the case that far fewer women than men apply for jobs in Legal academia. AALS statistics show that only about 33.6% of of the candidates applying for legal academic jobs through the Faculty Appointments Register (AKA - the "Meat Market") in 2004-2005, were women. Women are now about 50% of the student body at most elite law schools. So academic careers are still on average less attractive to women than to men. Women FAR candidates actually have a higher success rate in getting jobs than male ones (18.9% vs. 15.6% in 2003-2004), though this tells us little in the absence of data on the relative quality of male and female candidates.

I have not studied the literature on the subject in any depth, but I tentatively suggest two possible reasons for the gender disparity in applications.

First, the "publish or perish" phase of an academic career usually occurs during the first seven years on the job. This is precisely the time (late twenties to mid thirties) when people tend to have children. Childcare is of course more likely to take up a large amount of time for women than for men. While this is not a problem for women who don't want children or for those willing to postpone having children until their late thirties, such a postponement increases the chance of birth defects and may also cause other problems in the family. Overall, this problem is likely to deter considerably more female applicants than male ones, both because men with children do less childcare work and because men can more easily postpone having kids until after getting tenure. Obviously, some female academics use their time so efficiently that they can simultaneously devote a lot of time to childcare and be just as productive as their male and childless female colleagues. But not all potential female academics are willing or able to take on this challenge.

Second, you are much more likely to get an academic job if you have few geographic constraints. If your best (or only) offer comes from University of Southwest North Dakota, you won't have much of a career unless you accept. Given the competitiveness of the market, many entry-level candidates are going to end up in that position. On average, men are far less willing to move to an unappealing location to advance a spouse's career than women are, thus making this dilemma more difficult for many female applicants. I also suspect that more female spouses of male academics have careers that can be pursued even in an out-of-the-way location (e.g. - teachers, nurses, secretaries, etc.) than male spouses of female ones. This factor may be more important than most people realize, because elite law school graduates who choose to work for a law firm instead of going into academia can usually get a job in any city they want. A female elite law school grad whose husband or boyfriend refuses to move therefore has a strong incentive to choose a firm over academia - even if the academic lifestyle is otherwise more appealing.

UPDATE: I initially misread the AALS table on tenure rate for men and women and so reported the data for FAILURE to get tenure within 8 years rather than success. I have now corrected the figures in the post.

Updating the OED: Absent --

Hi, Sasha here — good to be back, after a two-year hiatus. Note to all: If you look at my personal web page, it's seriously (about a year and a half) out of date. I'm working on that.

For my first new post, I'll share a recent time-wasting activity of mine: coming up with "pre-dating" and "post-dating" evidence for entries in the Oxford English Dictionary. You may be aware that the OED has not only definitions but also historical usages, and my impression is that they try to find the first known English usage and list usages at regular intervals from then until the last known English usage, or until the present day if the word's still in use. The OED is also a collaborative enterprise, so they solicit freelance dating work.

So, a blog comment I recently read ("normal humans, rather than lawyers, regard the word 'absent' as an adjective rather than a preposition") made me wonder: is the prepositional sense of "absent" (meaning "without" or "in the absence of") really a lawyerly usage? I didn't think so, but then I may have false consciousness, since I read lawyers all the time. The OED did say this was an American, mostly legal, usage, and showed historical examples from 1944 to 1983. 1944 sounded awfully recent to me, so I did my own digging, and found the following, which I passed on to the nice folks at the OED. What follows is an illustrative, not exhaustive, list — though it's easy to find occurrences of this usage for any year after 1907, I've only given about one occurrence per decade in the 20th century.

1888 South Western Reporter VIII. 898 If the deed had been made by a stranger to the wife, then a separate estate in her would not have been created, absent the necessary words; but, being made to the wife by the husband, a separate estate, as against him, was the result. 1893 South Western Reporter XII. 629 Absent any evidence to the contrary, a proper and legitimate purpose will be presumed. 1898 South Western Reporter XLV. 303 Absent any one of these ingredients, there is no contract. 1906 South Western Reporter XCIV. 591 Absent one of these ingredients, there is no contract. 1914 South Western Reporter CLXXII. 17 A mere barren and abandoned conspiracy sounding in words, but jejune of acts or results, is not actionable, absent a statute so declaring. 1929 South Western Reporter (2d series) XVIII. 490 Absent a tender of an instruction properly defining said words, it was not error for the court to fail to do so. 1938 Federal Suppl. XXV. 861-62 The design, absent the color and display thereby created, is not more ornamental than many types of similar shoes.

The funny citation style is me trying to mimic the OED's citation style. The usage is much rarer before 1908, and all the early occurrences I've found have been from Missouri — apparently, a few judges (Justice Sherwood, sat 1872-1902; Justice Lamm, sat 1905-1914) enjoyed using the term.

UPDATE: My reactions to recent comments: My "false consciousness" was that I had seen the "absent" usage a lot; I thought it was pretty common; but in fact, since I read lawyers a lot, it may be true that it's a primarily legal usage. Yes, "false consciousness" is a facetious reference to Marxism. I think false consciousness in the Marxist sense is a useful concept, but in this case all I really meant was my sample was biased.

The "absent" usage doesn't derive from "absque," as one commenter suggests; I agree with Latinist that it's patterned after the ablative absolute form like "me absente" (note: I thought it would be "absenti" because present participles are declined like i-stems — am I wrong?). (Yes, the two words have the same flavor, but that's because they both derive from the same "ab" preposition.)

Finally, Lucia, who has found "loads of uses" of the form in the physical sciences, may be on to something — you should write an e-mail to the OED in which you note that there are all these nonlegal uses!

UPDATE 2: Ann Althouse, whose podcast I used to listen to all the time (I recently unsubscribed from most of them — nothing personal, Ann, just time management!) thinks this usage of "absent" is "ugly" and "feels abnormal." Joe's Dartblog thinks it sounds "nice." Also, he erroneously thinks that I think it's ugly. Did I say that, or even imply it, anywhere?

UPDATE 3: There's an interesting discussion in the comments, mainly between John Jenkins and Adrian Hester, on the likelihood of this usage's being Latin-inspired. For what it's worth, I'm inclined to suspect with Adrian Hester that it does come from the Latin ablative absolute usage — not as an ancient import (say, contemporaneous with the appearance of the word "absent" or the Renaissance or what have you), but perhaps (this is quite speculative) as an 1880s quirk of a Latin-loving Justice Sherwood of the Missouri Supreme Court.

UPDATE 4: A bit more discussion in the comments, now related to an article by one Slotkin about prepositional "absent" in the Fall 1985 issue of American Speech.