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Saturday, July 29, 2006

Property, Judicial Power, and Minority Rights:

I recently read Seton Hall law professor Rachel Godsil's excellent forthcoming Michigan Law Review article "Race Nuisance: The Politics of Law in the Jim Crow Era." An excerpt from the abstract:

This article explores a line of cases in the Jim Crow era in which courts ruled against white plaintiffs trying to use common law nuisance doctrine to achieve residential segregation. These “race-nuisance” cases complicate the view of most legal scholarship that state courts during this era openly eschewed the rule of law in service of white supremacy. Instead, the cases provide rich social historical detail showing southern judges wrestling with their competing allegiance to precedent and the white plaintiffs' pursuit of racial exclusivity. Surprisingly to many, the allegiance to precedent generally prevailed. The cases confound prevailing legal theories, particularly new formalism and critical race theory's interest convergence. While superficially supportive, the article illustrates the limitations of formalism's reach by also exploring the related line of racially restrictive covenant cases. Similarly, while many of the cases appear to support white property owners' interests, this article demonstrates that the race-nuisance cases are better understood as demonstrating that white interests are multi-faceted.

As Professor Godsil notes in the body of the article, her analysis has important elements in common with arguments that co-blogger David Bernstein and I advanced in a 2004 Yale Law Journal review essay : that judicial power can sometimes protect minority rights even in the face of widespread societal prejudice, and that protection of property rights will often benefit unpopular racial and ethnic groups. Of course, Godsil also takes issue with some of our points. For example, she suggests that the Supreme Court's 1917 invalidation of residential segregation laws in Buchanan v. Warley was not as "remarkable" a departure from the racist norms of the era as we suggest, given southern state courts' reluctance to rule in favor of whites who sought to expel blacks from their neighborhoods by filing "race-nuisance" claims. This point is in tension with the fact that three southern state supreme courts upheld the constitutionality of racial segregation laws prior to Buchanan, while others concluded that they might be acceptable under some circumstances, as Godsil herself notes elsewhere in the piece. Be that as it may, Godsil's piece is an important contribution to the literature on judicial power, property, and minority rights, and of course I'm happy with anything that increases my citation count!

Finally, it is amusing to note that Godsil at one point cites me as "Sonia Somin." Perhaps she is confusing me with my mother, Sofya Somin. Or maybe my gender identity crisis has still not been resolved, despite Eugene Volokh's heroic efforts.

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Who is the Real Anti-Muslim Here?

New Zealand politician Don Brash has been accused of making "racist" and "anti-Muslim" remarks (hat tip - Tim Blair):

A prominent New Zealand politician was accused of racism on Saturday after a speech in which he said immigrants who did not accept the country's "bedrock values" should not be allowed to stay.

Don Brash, leader of the conservative opposition National Party, defined the values as "an acceptance of democracy and the rule of law, religious and personal freedom and legal equality of the sexes"....

Javed Khan, president of the [New Zealand] Federation of Islamic Associations, told Radio New Zealand the speech made it clear that Brash wanted immigrants to fit his view of a mainstream New Zealander, and therefore excluded people like Muslims.

Pancha Narayanan, president of the Federation of Ethnic Councils, said a comment by Brash that immigrants should have a good command of English, or quickly learn the language, was a sign that he would prefer them to come from English-speaking countries.

He said the speech had an element of racism and an anti-Muslim tone.

Brash's critics' remarks are far more anti-Muslim than anything he said. The critics imply that Muslims inherently reject "democracy and the rule of law, religious and personal freedom and legal equality of the sexes." That is a far more severe indictment of Islam than anything in Brash's speech. Sadly, versions of Islam that do indeed reject these values are all too common in many parts of the world. Hinting at this fact, as Brash did, is not "anti-Muslim" unless one accepts the premise that such views are embedded in the very nature of that religion. Instead of attacking Brash, the leaders of New Zealand's Muslim community would do better to devote their efforts to promoting versions of Islam that embrace the values he listed. By claiming that his statement is anti-Muslim, they merely strengthen the perception that Islam and liberal democratic values are mutually exclusive.

It's also worth noting that Muslims are not a "race," anymore than Christians are. Both religions include adherents of many different races. Even if Brash's remarks really were anti-Muslim, that would not also make them "racist."

Finally, I can personally testify (as can millions of other immigrants in the US and, I presume, in New Zealand) that immigrants from non-English speaking countries can indeed "quickly learn the language." Learning the local language is an important prerequisite for immigrants' economic and social success in any society.

None of these points are particularly profound or original. However, they need to be made because claims that liberal democratic values are "anti-Muslim" and that criticism of radical Islamist ideologies is somehow "racist" are all too common. Those who make such arguments do a disservice to Muslims and non-Muslims alike.

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Senator Kennedy Assails Alito and Roberts:

Senator Ted Kennedy (D-MA) did nearly all he could to derail the confirmations of John Roberts and Samuel Alito to the Supreme Court. Having lost those fights, Kennedy is still at it, as evidenced by this Washington Post op-ed alleging that both nominees misled the Senate Judiciary Committee and concealed their judicial philosophies during their respective hearings. This, Kennedy claims, shows that the judicial confirmation process is badly broken.

the careful, bipartisan process of years past -- like so many checks and balances rooted in our Constitution -- has been badly broken by the current Bush administration. The result has been the confirmation of two justices, John G. Roberts Jr. and Samuel A. Alito Jr., whose voting record on the court reflects not the neutral, modest judicial philosophy they promised the Judiciary Committee, but an activist's embrace of the administration's political and ideological agenda.
Yet as my Bench Memos co-blogger Matthew Franck notes, Senator Kennedy misleads his readers through selective quotation and misrepresentation, taking words out of context and (in one instance) altering the language of a Supreme Court opinion to make his point.

If anything, Franck is too easy on Senator Kennedy, highlighting only a handful of his distortions. Setting aside the misquotation of Justice Thomas' Hamdan, Senator Kennedy's essay is exceedingly disingenuous. The hearings were a "sham" because some Republican Senators praised rather than probed the nominees, but not because some Democratic Senators prejudged the nominees, sought to play "gotcha" politics, played to the cameras, and asked misleading questions. Are we to believe that Senator Kennedy cared about the substantive answers to his questions?

Senator Kennedy accuses Justice Alito of a "pattern" of deception, including misleading the committee about his views of criminal procedure.

When questioned, he insisted that one of the judiciary's most important roles "is to stand up and defend the rights of people when they are violated." But Alito cast the deciding vote in Hudson v. Michigan, in which the court decided -- contrary to almost a century of precedent -- that evidence gathered during an unconstitutional search of a suspect's home could be used to convict him.
Whatever one thinks of the merits in Hudson, it is hard to argue that the Scalia majority Alito joined was "contrary to almost a century of precedent." See, for instance, Orin Kerr's analysis here.

In other places, Kennedy combines distortions and disingenuousness at the same time.

In Gonzales v. Oregon, a majority of the Supreme Court held that the Justice Department lacked the power to undermine Oregon's Death With Dignity Act. However, Roberts joined a startling dissent by Justice Antonin Scalia, stating that the administration's actions were "unquestionably permissible" because the federal government can use the Constitution's commerce clause powers "for the purpose of protecting public morality."
Here Kennedy misrepresents the substantive issue in the case, which concerned the interpretation of the Controlled Substances Act, not the scope of federal power under the Commerce Clause. While I disagreed with Justice Scalia's dissent, it was hardly "startling." What is "startling," however, is Senator Kennedy's suggestion that he now believes the federal commerce power is limited (and that such limits should be enforced in federal court).

Senator Kennedy is simply upset that President Bush nominated, and the Senate confirmed, two intelligent, conservative jurists. I don't agree with all of their legal opinions thus far, but it's hard to claim that either Roberts or Alito was unqualified or should not have been confirmed. I also agree with Franck that any criticism of either justice (or, for that matter, any justice) should focus on their judicial philosophy, and not the specific policy results in specific cases.

the senator from Massachusetts provides all the evidence one needs that, for some senators anyway, it is not legal thinking that matters at all. It is only results. From start to finish, this column amounts to one long whine that Chief Justice Roberts and Justice Alito don’t share Senator Kennedy’s view that Senator Kennedy’s policy preferences should be enacted by the Supreme Court. What Kennedy doesn’t have is anything resembling a legal argument against a vote cast, or an opinion written or joined, by either of these two justices.

Related Posts (on one page):

  1. Kennedy Correction:
  2. Wittes on Reforming the Confirmation Process:
  3. Senator Kennedy Assails Alito and Roberts:
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Wikipedia Celebrates 750 Years Of American Independence

As someone who has occasionally cited Wikipedia in scholarship, I found this Onion article amusing (tip to my daughter):

Wikipedia Celebrates 750 Years Of American Independence:
Founding Fathers, Patriots, Mr. T. Honored
July 26, 2006

NEW YORK—Wikipedia, the online, reader-edited encyclopedia, honored the 750th anniversary of American independence on July 25 with a special featured section on its main page Tuesday.

"It would have been a major oversight to ignore this portentous anniversary," said Wikipedia founder Jimmy Wales, whose site now boasts over 4,300,000 articles in multiple languages, over one-quarter of which are in English, including 11,000 concerning popular toys of the 1980s alone. "At 750 years, the U.S. is by far the world's oldest surviving democracy, and is certainly deserving of our recognition," Wales said. "According to our database, that's 212 years older than the Eiffel Tower, 347 years older than the earliest-known woolly-mammoth fossil, and a full 493 years older than the microwave oven."

"In fact," added Wales, "at three-quarters of a millennium, the USA has been around almost as long as technology."

The commemorative page is one of the most detailed on the site, rivaling entries for Firefly and the Treaty Of Algeron for sheer length. Subheadings include "Origins Of Colonial Discontent," "Some Famous Guys In Wigs And Three-Cornered Hats," and "Christmastime In Gettysburg." It also features detailed maps of the original colonies—including Narnia, the central ice deserts, and Westeros—as well as profiles of famous American historical figures such as Benjamin Franklin, Special Agent Jack Bauer, and Samuel Adams who is also a defensive tackle for the Cincinnati Bengals.

"On July 25, 1256, delegates gathered at Comerica Park to sign the Declaration Of Independence, which rejected the rule of the British over its 15 coastal North American colonies," reads an excerpt from the entry. ...

The exhaustive entry also includes links to video clips of the First Thanksgiving, hosted by YouTube.

The special anniversary tribute refutes many myths about the period and American history. According to the entry, the American Revolution was in fact instigated by Chuck Norris, who incinerated the Stamp Act by looking at it, then roundhouse-kicked the entire British army into the Atlantic Ocean. A group of Massachusetts Minutemaids then unleashed the zombie-generating T-Virus on London, crippling the British economy and severely limiting its naval capabilities. . . .

While other news and information websites chose to mark the anniversary in a muted fashion, if at all, Wikipedia gave it prominent emphasis over other important historical events from the same day, including the independence of the nation of Africa in 1847, the 1984 ascension of Constantine to Emperor of the Holy Roman Emperor, and the 1998 birth of Smokey, a calico cat belonging to Mark and Becky Rousch of Erie, PA. . . .

"The Revolution's main adversaries were the patriots and the people from Braveheart," said speaker Tim Capodice, who has edited hundreds of Wikipedia entries on subjects as diverse as Euclidian geometry and Ratfucking. "The patriots, being a rag-tag group of misfits, almost lost on several occasions. But after a string of military antics and a convoluted scheme involving chicken feathers and an inflatable woman, the British were eventually defeated despite a last-minute surge, by a score of 89-87."

Despite spirited discussions bloggers present later described as "eluminating" and "sweet," the symposium was cut short when differences of opinion among the panelists degenerated into personal insults and name-calling.

While Wikipedia's "American Inderpendance" page remains available to all site visitors, administrators have suspended additions and further edits to its content due to vandalism.

How Israel and Thailand are preventing jihadi shootings:

At schools and other youth centers, they allow or require the presence of armed adults, such as teachers, as I detailed in a 2004 article for National Review Online. These policies were adopted to deal with well-organized terrorist attacks, rather than with perpetrators such as the lone Jew-hater who apparently carried out yesterday's crimes in Seattle. Lone terrorists, especially those who are mentally ill, might be less subject to rational deterrence than are organized terrorist gangs. On the other hand, lone terrorists, should they attempt to instigate an attack, would be all the more easily defeated by the guardian adults, since the perpetrator would be acting alone, and would usually not be as careful about planning as are organized terrorist gangs.

Like Eugene Volokh, I am skeptical about "hate crime" laws as a response to crimes such as the Seattle shooting. In a 2003 Issue Paper for the Independence Institute, I examined the record of Colorado's "ethnic intimidation" statute, and found the statute to have contributed almost nothing to effective criminal justice in Colorado. While calling for repeal of the ethnic intimidation statute, I argued that the penalty for hate crime hoaxes should be substantially increased, since hate crime hoaxes (like hate crimes themselves) cause broad fear in the community. PDF version. HTML version.

On another subject, my Rocky Mountain News media column notes how the Denver Post erred in describing Republican gubernatorial candidate Bob Beauprez's stance on gun control. And I chastise the Denver Newspaper Agency for running as bait-and-switch web ad promising "You have been chosen to receive a FREE 42-inch Samsung or Panasonic HDTV."

Finally, those of you who read Spanish might enjoy Política de Oficiales: Los recientes escándalos del departamento de policía son el resultado de la creciente intervención del estado federal y de las prácticas de empleo racistas. It's a Spanish translation of an article that Mike Krause and I wrote for American Outlook in 2001; examining the Rampart scandal in Los Angeles, and similar problems in other big city police departments, we suggest that the problems of corruption and illegal violence involving the police are aggravated by excessive federal involvement, race-based hiring, and the drug war.

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Got Yogurt?

Saturday baby-blogging. Natalie Ilana Bernstein, almost ten months.

Anti-Semitic Murder (and Attempted Multiple Murder) in Seattle:

The Seattle Post-Intelligencer reports:

Six women were shot -- one fatally -- this afternoon at the Jewish Federation of Greater Seattle by a man who told a witness he was upset about "what was going on in Israel." ...

"We believe it's a lone individual acting out his antagonism," said David Gomez, who heads the FBI's counterterrorism efforts in Seattle....

"He said 'I am a Muslim American, angry at Israel,' before opening fire on everyone," [Marla] Meislin-Dietrich[, who works at the center,] said. "He was randomly shooting at everyone." ...

Pajamas Media has a round-up; thanks to InstaPundit for the pointer.

The law should, I think, treat such crimes with the same severity as it would a similar crime motivated just by a desire to kill random people. While I think many laws that enhance penalties for crimes in which victims are chosen based on race, religion, sexual orientation, and the like are constitutional, I think they are unwise and draw a moral distinction that strikes me as on balance inadequate (not irrational by any means, but on balance inadequate). Nonetheless it certainly makes sense that we would notice these crimes for what they are -- manifestations of ethnic hatred that needs to be recognized in order to be fought.

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Friday, July 28, 2006

The Party of God's Hero:

As we all know, the current war in Lebanon and Israel started when Lebanese Party of God terrorists crossed into Israel and kidnapped two soldiers, murdering others. The original goal was apparently to force a prisoner exchange. In particular the Party of God seeks the release of Samir Kuntar, whom Israel has refused to release in prior prisoner exchanges. Who is Mr. Kuntar, and why is he in an Israeli prison?

Mr. Kuntar is a killer. In 1979, at the age of 17, he and three others, recruited by a Palestinian [terrorist] group ... launched a small boat from the tip of Lebanon’s southern coast and came ashore at the northern Israeli town of Nahariya. There, they killed a police officer they encountered, before taking a family of four in an apartment hostage.

The mother, Smadar Haran, had managed to slip into a crawl space with her two-year-old daughter Yael and avoid detection. But as police began to arrive, the gunmen took her husband Danny and four-year-old daughter Einat down to the beach, where they shot Danny in front of his daughter and smashed in her skull with a rifle butt.

Apparently, Kuntar is a hero not only to the Party of God, but to many Palestinians.

Kuntar should have been executed well over twenty years ago, not necessarily in a pleasant manner. Unfortunately, Israel does not have the death penalty except for Holocaust perpetrators, leading to consistent-hostage taking to try to win the release of the likes of Kuntar.

In any event, Kuntar came to mind because I received an email from a reader suggesting that I try to understand things from the perspective of the supporters of the Palestinian and Party of God terrorist groups. Sorry, but while I'm reasonably well read on the radical Arab perspective, whatever someone's grievance I refuse to "understand" those who idolize cold-blooded murderers of children. [Remember the exhibit at a Palestinian university celebrating a mass terrorist murder at Sbarro's Pizza in Jerusalem?] The fact that Kuntar is a hero to the Party of God and to the Palestinian terrorist groups reveals just about all one needs to know about them.

I recently read Rabbi Daniel Gordis's book, Home to Stay, about his aliyah to Israel. The book was only moderately interesting, mostly for its account of how Gordis went from being an ultra-dove when he moved to Israel to being much more of a realist after Camp David 2000. Gordis did made one point in particular that stuck with me: living in Jerusalem (one of the more "right-wing" parts of Israel) during the worst of Palestinian-Israel violence of the Second Intifadah, he never heard a single Israeli ever express glee at [unintended, but inevitable given the urban warfare involved] civilian deaths on the Palestinian side. [Someone is bound to bring up the few on the lunatic fringe who consider Baruch Goldstein a hero. Duly noted, but it's called the lunatic fringe for a reason.] Some accepted these deaths as the unfortunate price of defeating the Second Intifadah, others protested against them, but no one ever celebrated them, or expressed joy at the suffering of the survivors. Contrast that with grisly recreations of pizzeria bombings, candies being handed out in Palestinian areas when a terrorist murder takes place, the celebrations in the streets in 9/11, and so on, and you see the difference between a decent, modern society, and its enemies.

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Search of Congressman Jefferson's Office:

The AP reports:

A federal appeals court on Friday barred the Justice Department from reviewing evidence seized from a Louisiana congressman's office during an unprecedented FBI raid on his Capitol Hill office in May.

A three-judge panel ordered a federal trial judge to ensure that Democratic Rep. William Jefferson be given copies of seized evidence ... [so that Jefferson has the chance] to invoke legislative privilege claims in private with the trial judge.

Thanks to Ron Coleman (Dean's World) for the pointer. Unfortunately, I couldn't find the opinion on the D.C. Circuit site, findlaw, WESTLAW, or LEXIS, so don't have anything more to say about it yet.

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Gas Price Fundamentals:

At the Knowledge Problem, Lynne Kiesling has a useful and informative post on the fundamentals of gas prices.

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Dartmouth Constitution Battle:

Many of you saw the story in the New York Times a few weeks back regarding the proposed Dartmouth alumni constitution (and mentioned by Orin here). The Times story was triggered by a letter objecting to the cancellation of this year's elections for the alumni executive committee and the general debate over the wisdom of the constitution. Those interested in the folow-up to the Times story may want to read some of the recent commentary offered by Joe Malchow, particularly regarding the controversial decision to cancel the annual elections of the alumni executive committee. After doing some research it turns out that "annual" means, well, "annual" after all, not "every 18 months or whenever we decide to set it."

Malchow also notes the early ramping up of the pro-constitution propaganda machine through the use by proponents of college-affiliated listserves and mailings. Peter Robinson, TJ Rodgers, and I have previously criticized the use of ham-handed procedural and other tactics to try to ram through this constitution. More of this can be expected over the summer.

Malchow's commentary and sources on these issues has been collected on a special page on his web site Dartblog. For those seeking to understand what is going on here, Malchow's analysis is very insightful and he is keeping track of all of the ongoing developments.

And if you click over to Dartblog, you should also check out some of the other links there, including the thoughtful recent joint op-ed by the Presidents of the New Hampshire College Democrats and the Dartmouth College Republicans opposing the proposed constitution, which comes on the heels of a similar joint op-ed last month by the editors of the liberal Dartmouth Free Press and the Dartmouth Review as well as this online petition signed by almost 5% of the rank-and-file student body this spring.

I'll have more to say about all this later this summer, but for now I wanted to provide an update on recent developments for those who saw the Times story. The shame of it all is that until recently everyone generally seemed to agree that 100-year old constitution basically worked fine. Moreover, there will be a handful of short amendments that will be on the ballot this fall to update the constitution in light of modern technology.

Also, to ensure that there is no misunderstanding, I want to stress that anything I say about this matter is solely in my capacity as an alumnus of the College, not as a trustee or on behalf of any other trustees.

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Yale Law Journal Call for Submissions -- Deadline Looming:

A reminder about something I'd posted about earlier:

The Yale Law Journal seeks to publish two Articles engaged in a dialogue on a single compelling legal topic. Selected Articles will be published in the same issue in the spring of 2007.

We encourage scholars to submit pieces in development rather than completed pieces ready for submission and publication so that the pieces that will evolve in response to each other. Interested authors should seek out a colleague in their field with a differing viewpoint who will join them in this project.

There is no subject matter limitation for submissions, but the topic should be both contentious and suitable to thorough and engaging discussion.

Each submission should include a partially developed paper of at least 5000 words and the author’s curriculum vitae. The interlocutor should include a prospectus of at least 1200 words, as well as a curriculum vitae. Please send proposals via e-mail in MS Word format to the Features & Symposium Committee at features@yalelawjournal.org. The subject line should read: Debate Proposal: [Title]. All submissions must be received by August 1, 2006, and the Journal will respond by August 15.

If you would like more information, please do not hesitate to email us at features@yalelawjournal.org or visit our website at http://www.yalelawjournal.org/documents/CallforDebate.pdf.

Sincerely,
Brian Wong
Symposium Editor, Yale Law Journal

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Debating the DTA Debate:

Last March, Emily Bazelon wrote a Slate column accusing Senators Jon Kyl (R-AZ) and Lindsay Graham (R-SC) of misleading the Supreme Court in their amicus brief discussing the legislative history of the Detainee Treatment Act. The Kyl-Graham brief relied, in part, on a colloquoy that was inserted into the Congressional Record rather than delivered on the floor during an actual Senate debate.

The problem is that Kyl and Graham's colloquy didn't actually happen on Dec. 21. It was inserted into the Congressional Record just before the law passed, which means that the colloquy did not alert other members of Congress to the views it contains. Inserting comments into the Record is standard practice in Congress. What's utterly nonstandard is implying to the Supreme Court that testimony was live when it wasn't. The colloquy is evidence of what Kyl and Graham thought about the meaning of the DTA. But it doesn't show that any other member of Congress shared their understanding. Everything else in the record that directly addresses whether the DTA forces the Supreme Court to toss Hamdan comes from Levin or another Democrat—and explicitly states that the DTA leaves Hamdan alone.

Justice John Paul Stevens majority opinion in Hamdan subsequently picked up on the discrepancy (which was also noted in Hamdan's briefs), as Bazelon reported here.

Stevens dropped a little footnote—actually, a not so little one—about the debate over the DTA on the Senate floor. "While statements attributed to the final bill's two other sponsors, Senators Graham and Kyl, arguably contradict Senator Levin's contention that the final version of the Act preserved jurisdiction over pending habeas cases … those statements appear to have been inserted in the Congressional Record after the Senate debate," Stevens wrote. The italics are his. The embarrassment is the senators'.

On Monday, Ramesh Ponnuru suggested in NRO that the charges against Kyl and Graham were much ado about nothing, and that Justice Stevens himself misrepresented the legislative history of the DTA because the statements upon which he relied in his opinion were also inserted into the record rather than delivered during live Senate debate.

Stevens handles the problem in footnote 10. The statements by Kyl and Graham, he writes, “appear to have been inserted into the Congressional Record after the Senate debate. . . . All statements made during the debate itself support Senator Levin’s understanding” (emphasis in original).

But Stevens has it wrong. None of the statements he cites — on either side of the issue — was made during floor debate in the Senate. All of them were submitted for the record after the debate (but before the vote on the act). Compare the cited passages of the Congressional Record to the CSPAN videotape of the floor debate, and it is clear that Levin’s statement and the other statements supporting his position were inserted after the fact, just as Kyl and Graham’s statements were.

The issue did not end there, however. Yesterday, Emily Bazelon published this response to Ponnuru on Slate.

While it's true that the Democrats don't show up talking about Hamdan on a C-SPAN tape of the four-minute debate that preceded the DTA's passage on Dec. 21, that's because the key statements cited by Stevens and in Hamdan's brief were made weeks earlier. It's also true that other Democrats inserted statements into the record on Dec. 21 to show their support for Levin's understanding of the law. But Hamdan's lawyers didn't try to pass off those statements as live, taking care to refer to them as "comments placed in the Congressional Record."

This morning, Ponnuru published this retort on NRO, defending his on central claim.

She concedes that Hamdan’s lawyers were wrong to claim that the Kyl-Graham colloquy was inserted into the record after the act had passed. She concedes as well that the Democrats’ Dec. 21 statements were inserted after the debate but before the act passed, just like the Kyl-Graham colloquy. But, she writes, “that’s because the key statements cited by Stevens and in Hamdan’s brief were made weeks earlier” (emphasis hers). She’s wrong. Here’s what Justice Stevens writes after trashing Kyl and Graham: “All statements made during the debate itself support Senator Levin’s understanding that the final text of the DTA would not render subsection (e)(1) applicable to pending cases. See, e.g., id., at S14245, S14252–S14253, S14274–S14275 (Dec. 21, 2005).” Every passage he cites is from the record for Dec. 21, and each was inserted after the debate. There’s just no way to defend Stevens’s distinction between those passages and the Kyl-Graham colloquy, which was inserted at the same time.

To be continued?

UPDATE: Yes. Emily Bazelon has attached an addendum to her last piece, and Ramesh Ponnuru makes further arguments here in The Corner, concluding:

I don’t take any strong position on whether a distinction should be made between live and inserted statements. But I do think you have to be consistent about it. Hamdan’s lawyers and Justice Stevens weren’t, perhaps out of misunderstanding. Emily Bazelon knows the score and is still trying to have it both ways.
Julian Ku also has some thoughts on the debate here.

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Israel-Lebanon Roundup:

Krauthammer is must-read.

Richard Cohen's blood is boiling.

Efraim Inbar, one the more lucid Israeli scholars on strategic issues, says Israel needs to be going after Syria.

In a "flying pig" moment, a U.N. official criticizes Hezbollah for hiding behind civilians.

Yalla Ya Nasrallah. An appropriately militant, and quite catchy, Hebrew YouTube music video.

CNN reports that Haifa, targeted by Hezbollah missles, is a "ghost town." The media reports that Haifa is "Israel's third-largest city," but neglects the context that Israel only has five or six large cities (Tel Aviv, Jerusalem, Tiberias, Be'ersheva, Ashdod, and Haifa), where most of the population lives. To get perspective, imagine if CNN was reporting that California is a deserted ghost town.

Hezbollah dating service (humor).

I can't vouch for its authenticity, but this footage shows U.N. ambulances in Gaza giving a lift to Palestinian terrorists in the middle of a battle. But a U.N. force will keep the peace in Lebanon. Right. [A reader tracks this footage back to 2004, but the point still stands.]

As this article among others I've seen suggests, Israel has a substantial fifth column problem with a significant percentage of its Arab population, especially in the Galilee where the populations don't mix much. I don't think Israeli Jews are going to forget all the sympathy expressed for Nasrallah, and the impact on Jewish-Arab relations will be severe. Israeli Jews can forgive Israeli Arabs for sympathizing with their Palestinian relatives living under occupation, but not for sympathizing with Lebanese Shiites who attack Israel gratuitously. Look for more and more Israelis to insist that any future Palestinian state include Israeli Arab towns near the border.

UPDATE: In another flying pig moment, the usually very dovish Ha'aretz is publishing opinion pieces by its writers like this one that outhawk the hawks. In a way, this makes sense, because the doves advocated a withdrawal from South Lebanon, and want further withdrawals of Israel, and if Israel doesn't defend itself vigorously from territory from which it has withdrawn, the doves will lose all credibility.

There's a website out there that allows folks to send pizzas to IDF soldiers. It's a nice gesture, but I asked my wife about it and her opinion was that IDF soldiers are larded with dairy foods, and that they wouldn't be that excited by pizza. Chocolate, on the other hand, would be a different matter. Coincidentally, I just got an email from a reader who points to a website that allows folks to send IDF soldiers chocolate, along with greetings. And it's free.

Thursday, July 27, 2006

My neighbor

Neal Katyal, on The Colbert Report.

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Lileks Goes to His HS Reunion.--

James Lileks has an interesting account of attending his high school reunion in Fargo, ND, presumably his 30th. Among the things that Lileks mentions is that: "The band is too loud. Of course, the band is always too loud. Everywhere. It’s what bands do: be too loud."

I attended only one HS reunion, my 5th, in 1975, in Rockford, IL. It was outside in a park, so the band was not too loud. The band, however, was Cheap Trick, which was pretty unusual for a reunion of perhaps 100 people (the band must have been fairly recently formed). Of course, we didn't pay too much attention to them, since talking to friends was the top priority. I remember going up after Cheap Trick's last set and talking to the drummer, Bun E. Carlos (aka Brad Carlson). We had been to a lot of the same concerts in Chicago in the 1960s (not together) and I told him that IMO the band (and his drumming in particular) compared very favorably with some of the groups we saw and used to talk about. He politely thanked me for the compliment.

At my HS in the late 1960s, our regular band for homecoming and senior prom was REO Speedwagon (a Univ. of IL band). At other dances, we had one of the two precursor bands of Cheap Trick. Today, many high schools have DJs.

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Using Academic Legal Writing in Seminars:

A professor asked me: Have any professors used Academic Legal Writing, or similar books (such as Fajans & Falk's Scholarly Legal Writing) as classroom teaching material for their seminars; and, if so, can they share their syllabuses or teaching tips? I didn't know the answer -- I know some assign it as reading for their students, but I don't know whether they actually teach from it -- so I thought I'd ask here. If you teach such a class, were a student in such a class, or have heard of such a class, please let me know.

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Nobel Laureate Proposes More Sulfur "Pollution" Targeted to Reduce Global Warming.--

A couple months ago, I was looking at the patterns over time of sulfur pollution in the atmosphere and global warming. Sulfur emissions have long been known to reduce surface temperatures, as has been shown after large volcanic eruptions.

I noticed that while sulfur emissions were growing in the two decades lasting into the early 1970s, temperatures were cooling slightly. At the time of the first Earth Day in 1970, this cooling led some academics to predict a new Ice Age (though even in 1970, other researchers were worried about global warming because of the longer trend). In response to concerns over sulfur pollution and the acid rain it caused, the U.S. and other countries cut back sulfur emissions substantially, which then corresponded with an increase in temperature.

This led me to wonder about a possible contribution (however small) of pollution control to global warming. It also led me to concoct the goofy idea that perhaps introducing sulfur into the atmosphere could be considered as a way to cut down global temperature increases. Because my ignorance in environmental matters is considerable and my idea was based in part on what might have been a random correlation, I thought that my idea was too strange even to float on this blog.

Then today I saw a news article that reported on a new academic proposal to inject sulfur into the stratosphere. Apparently, the idea of using sulfur to reduce global warming has been kicked around for some years, though I hadn't heard of it.

The author of the paper in the scholarly journal Climatic Change is Nobel laureate Paul Crutzen. I was able to download the paper from this site, but that may have been because of my university's subscription to the journal.

LiveScience has the story (tip to RawStory):

One way to curb global warming is to purposely shoot sulfur into the atmosphere, a scientist suggested today.

The burning of fossil fuels releases carbon dioxide, a greenhouse gas, into the atmosphere. It also releases sulfur that cools the planet by reflecting solar radiation away from Earth.

Most researchers say the warming effect has been winning in recent decades.

Injecting sulfur into the [stratosphere, which is about 9-31 miles above the surface] ... would reflect more sunlight back to space and offset greenhouse gas warming, according to Nobel laureate Paul Crutzen from the Max Planck Institute for Chemistry in Germany and the Scripps Institution of Oceanography, University of California at San Diego.

Crutzen suggests carrying sulfur into the atmosphere via balloons [or] using artillery guns to release it, where the particles would stay for up to two years. The results could be seen in six months.

Nature does something like this naturally.

When Mount Pinatubo erupted in the Philippines in 1991, millions of tons of sulfur [were] injected into the atmosphere, enhancing reflectivity and cooling the Earth’s surface by an average of 0.9 degrees Fahrenheit in the year following the eruption.

Crutzen favors Kyoto and restrictions on greenhouse gases as the best approach, but believes that injecting sulfur may be easier to achieve politically. He also claims that injecting sulfur directly into the stratosphere would lead to many fewer health problems to humans than allowing more sulfur fuel burning on the surface of the planet.

52 Comments
Lawtopic:

The UCLA Law Library and I have put together http://www.lawtopic.org, a Web-based clearinghouse for student article ideas. The theory is that law professors, lawyers, law clerks, and judges would submit such ideas to this site, and students would pick up those ideas.

Why would someone want to submit? A few thoughts:

  1. Law professors often run across article ideas that they don't want to write about themselves. (The topics may be ambitious enough for a student but not for the professor, or the professor may be tired of writing in this field, or the topic may be outside the professor's field.) They might contribute the idea to students just because they want to help. What's more, all I ask is a few paragraphs, which is to say five minutes of the professor's time.

  2. Law professors want to increase the impact of the articles we write. One way to do this is to have others write articles that build on the professor's work. Many of our articles set forth proposals that can apply to problems beyond the one that they specifically address. Many others identify collateral problems that are related to the issue that we’re discussing. Our work often raises more questions than it answers; it's good if others answer those questions, and cite us in the process.

  3. Lawyers -- whether in private practice, in government service, or at public interest organizations -- often run across issues that (a) are of recurring importance to them and their clients, (b) are unresolved by the current case law, (c) are meaty enough to justify a student article, and (d) haven’t been sufficiently discussed in the treatises or the law reviews. The lawyers are unlikely to take the time to themselves write the scholarly article; why not suggest it to students?

  4. The same goes for judges and law clerks; if they see an issue that's of recurring importance, they can help both the legal system generally and the judiciary in particular by stimulating good scholarship on the subject. And if you want to keep the suggestion anonymous, we let you do that.

So if you're a professor, lawyer, judge, or law clerk, just go to this page, click on "Submit," and fill out the form we give you. More detail is obviously better, but beggars can't be choosers. We’ll also let you indicate whether you (1) are willing to discuss the topic with students who want to write about it, (2) don’t want to be bothered but are still willing to see your name given as the source of the idea, or (3) would rather submit the topic anonymously. You'll be helping students, you'll be helping the legal profession more broadly, and you may also be helping yourself.

A few details:

1. We'd like to get submissions from legal professionals, or (in rare circumstances) nonlawyers who still know the literature quite well (e.g., scholars in allied fields). It's not enough that the topic be important; it also has to be relatively uncovered by the existing scholarship, and manageable for a law student, two things that nonlawyers tend not to be able to evaluate well.

2. Students who get a topic from the database do run the risk that other students might be writing on the same topic that they choose. But that's a risk with any topic; a single other student note on the subject (or even two or three) is unlikely to preempt your own note, since students tend to have very different views; the chances that a student will have selected this particular topic aren't that high; and the risk isn't something we can do much about, since we can't just let student authors withdraw, on their own say-so, the idea that they've chosen to work on.

3. I tried promoting this site about four years ago, and got several dozen serious submissions; but unfortunately I didn't promote the site as well as I should have, so it wasn't heavily used. I've therefore archived those submissions and removed them from the database, since there's a substantial risk that many are now obsolete. I'm hoping that this pass will produce more submissions, and more use by students.

4. If you think this is a good idea, please promote it on your blog, especially if it's read by law professors, lawyers, judges, law clerks, or law students. You'll be doing your readers, and others, a service.

13 Comments
Foreign Citizens as Judicial Clerks:

Every year, a few of our top students are foreign citizens. Can they apply for federal judicial clerkships?

The answer it turns out, is generally yes, if they're from countries that have a qualifying defense treaty (or some other qualifying treaty) with the U.S.: "Argentina, Australia, Bahamas, Belgium, Bolivia, Brazil, Bulgaria, Canada, Chile, Colombia, Costa Rica, Cuba (as a signatory of the Rio Treaty in 1947), Czech Republic, Denmark, Dominican Republic, Ecuador, El Salvador, Estonia, France, Germany, Greece, Guatemala, Haiti, Honduras, Hungary, Iceland, Italy, Japan, Korea (Republic of), Latvia, Lithuania, Luxembourg, Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Thailand, Trinidad and Tobago, Turkey, United Kingdom, Uruguay, and Venezuela." They may need to upgrade their education visa (if that's what they have) to a temporary work visa, but apparently that's not that hard to do, and happens often enough. (I'm speaking here only of federal clerkships; I don't know if some states imposed different rules for their judiciaries.)

Naturally, some judges may prefer to hire U.S. citizens rather than noncitizens, and especially than noncitizens for whom some immigration law hoops would have to be jumped through — to my knowledge they are not restrained from implementing such a preference — but I suspect that many judges don't care much about that. So if you're one of those darned furriners a citizen of one of our fine friends and allies except for Canada, damn it, don't feel reluctant to apply.

UPDATE: Peter Spiro (Opinio Juris) asks a broader policy question about this.

29 Comments
Whom Are You Going To Believe -- The Transcript or Your Lying Ears?

Here's Yesterday's Bushism at Slate:

"And the question is, are we going to be facile enough to change with—will we be nimble enough; will we be able to deal with the circumstances on the ground? And the answer is, yes, we will."—Washington, D.C., July 25, 2006

To Slate's credit, they point to the video of Bush's comments (referring to the material starting at 17:44). I followed the video and noticed that the transcript was incorrect; here's what I wrote to Slate (apologies for the typo in the parenthetical):

Today's column says, [quote omitted] .... Fortunately, it includes a link to the video.

I followed that link, and it turns out the transcription is mistaken. President Bush says:

"And the question is, are we going to be facile enough to change with the c—will we be nimble enough; will we be able to deal with the circumstances on the ground? And the answer is, yes, we will."—Washington, D.C., July 25, 2006.

I understand that you folks might still want to fault Bush for having cut off the word "conditions" (assuming this wasn't just a technical glitch (note that the audio might have some skips, see 18:10-18:16). But at least the transcript ought to be corrected, I think.

To my surprise, here's the message I got back from Slate:

Geoff (Jacob's Bushism researcher) followed up on this, and here's what he has to say.

Bush makes an audible, vague "c" sound in the video, very briefly. But he often makes a lot of sounds that don't end up in the White House transcript. Plenty of "uhs" and "ums" and sometimes real starts and stops to words or thoughts. And part of what the White House does to indicate that he's changing gear abruptly is they use those em dashes between disjointed points. We print their version faithfully and I think we have to. I'm glad we run video so that people can see how these things are actually delivered.

Bush's comment was widely quoted in the form in which it appeared in the White House release. I don't think Volokh would find it fair if we got into the business of "correcting" the White House transcript in this way.

This struck me as pretty remarkable: The video conclusively proves the transcript to be mistaken; whatever one may say about the "c" (and it seems to me clearly audible enough to be included), the transcript clearly omits the word "the." Yet Slate insists on continuing to cite the transcript, which is what I suspect 95+% of its readers will rely on) even though it's wrong.

I don't see how that could be proper. Even if Slate feels uncomfortable departing from the White House transcript — odd, given that it's quite entitled to transcribe the video itself — surely there'd be nothing wrong with noting that the transcript was mistaken. And it seems to me quite wrong to continue to use a transcript that one now knows to be in error.

Naturally, one could conclude that even the corrected version somehow shows a risible error on President Bush's part (assuming there's no video skip); I've never found such slips in extemporaneous speech to be particularly telling, but others may disagree. Still, I'd think a basic rule of journalism would be: When you give a transcript, give an accurate transcript, and if you learn that it's wrong (by comparing it with an actual live recording), correct it, even if you think that the error in the transcript is immaterial. That apparently is not Slate's view, though.

All Related Posts (on one page) | Some Related Posts:

  1. Whom Are You Going To Believe -- The Transcript or Your Lying Ears?
  2. Bushism of the Day:
  3. My Three Suggestions for Improving Slate:...
  4. Bushism of the Day:
  5. Spinsanity criticizes Slate's Bushisms and Kerryisms.
  6. Latest Bushism:
81 Comments
"Chutzpah":

The classic example of chutzpah is the person who murders his parents, then pleads for mercy because he's an orphan. But how about a government leader that puts a terrorist organization in his cabinet; gives the organization free reign over the southern part of his country from which the organization every so often attacks a neighboring country; and defends the organization as "liberators;"* and then demands reparations from the neighboring country when the terrorist organization starts a war?

[UPDATE: Ha'aretz reports that Israel plans to provide Lebanon with humanitarian aid.]

*Hezbollah allegedly "liberated" Lebanon by driving Israeli forces out of the South. But once the PLO was forced out by Israel in 1983, the only reason Israeli forces had to stay in Lebanon was to protect Israel (and to some extent, Lebanon itself, since Israel could do without a militantly hostile government on its borders) from its only remaining armed enemy in Lebanon, Hezbollah, set up with help from the Iranian secret service in 1982 and later aided by Syria to create a proxy army against Israel. Praising Hezbollah for "liberating" Lebanon is a bit like praising Iran for "liberating" the American hostages it released in 1981--after kidnapping them in 1979.

Will Barry Bonds Be Indicted?

I just finished listening to Game of Shadows: Barry Bonds, BALCO, and the Steroids Scandal that Rocked Professional Sports. It is a fascinating and engrossing book. Based on what I had heard, I was surprised at how much of the book was about doping in elite track and field as much as baseball. The other thing that was amazing to me is how cheap this stuff is--a years supply of steroids seems to price out at about $5,000, a real pittance for a professional athlete.

It is being reported that Bonds is being investigated by a grand jury on charges of tax evasion and perjury. The tax evasion charge stems from Bonds allegations that Bonds failed to report income from the sale of autographed memorabilia and diverted those funds to maintain his mistress, Kimberly Bell. This is a pretty straightforward tax case it seems and I'm going to leave it aside for now.

The interesting issue is whether Bonds is going to be indicted on perjury charges arising from his testimony to the grand jury that he never knowingly took steroids (I'm going to use "steroids" as a shorthand for performance enhancing drugs). The first grand jury terminated without indicting him. I understand that the grand jury is supposed to permit the indictment only if there is probable cause that he committed a crime. But assume that the indictment will come down only if the prosecutors think that they can prove the charge beyond a reasonable doubt, which I understand to be the typical practice in such things. Regardless, what I'm interested in here is whether the prosecutors will be able to prove perjury beyond a reasonable doubt. Now, after reading the book and other coverage, and looking at Bonds with my own eyes, I am comfortable concluding that the preponderance of the evidence supports the conclusion that Bonds took steroids or human growth hormone.

It is being reported that Bonds's trainer Greg Anderson will again refuse to testify before the grand jury about Bonds's supposed steroid use. After reading the book, it seems to me that unless Anderson testifies, the feds very well may not be able to prove beyond a reasonable doubt that Bonds knowingly took steroids.

Those who have also read the book may remember some details that I am forgetting, but from what I recall, there is very little direct evidence--and perhaps none--that could prove that Bonds knowingly took steroids. Based on my recollection, everything he did was done through Anderson, and Anderson alone. Without Anderson's testimony, it is not clear to me that the feds can get him.

Perhaps the strongest evidence that Bonds knowingly took steroids is the complete absurdity of his testimony before the grand jury (assuming the book's report is accurate). Bonds reportedly testified that Anderson would periodically bring him supplements and ointments and he would simply ingest them or rub them on simply to humor Anderson. He claims he never asked what they were and simply assumed they were flaxseed oil and arthritis cream. The book also reports that Bonds told Gary Sheffield (who supposedly also took performance enhancing drugs while training with Bonds) not to ask any questions and to just take what he was given, i.e., that he didn't want to know too much. This whole story seems preposterous, and combined with other circumstantial evidence such as his seemingly bigger head, etc., it seems to me that it is more likely than not that Bonds knowingly took steroids.

But without Anderson's testimony, the direct evidence seems thin (assuming that the book reports all the evidence). All of this is based on the best of my recollection from the book. First, Bonds has never admitted taking performance-enhancing drugs, even under oath with immunity to the grand jury (the basis of the perjury charge). Second, I don't recall anybody in the book specifically stating that they saw Bonds taking what was unquestionably steroids. If I recall correctly, Bell never looked in Bonds's "man bag" to see what was in there. Nor did she ever actually see Anderson give him a shot of steroids--her story was that Bonds and Anderson would go into the bedroom with the man bag and close the door and she simply assumed that Anderson was shooting him with steroids. Third, Bonds never referred to taking steroids, but rather to "the shit" or "the stuff" or "the junk" or similar comments.

Third, nobody other than Anderson ever gave him shots. Fourth, I don't recall Bonds ever directly buying steroids from BALCO. Rather, the standard transaction was that Anderson would buy everything for Bonds and keep track of his protocol. Every once in awhile Bonds would give Anderson 10 or 20 thousand dollars for vaguely defined "personal training" services. So there weren't identifiable Fed Ex packages to athletes (as with most of the athletes). Nor were there money deposits directly from Bonds into Victor Conte's bank account (the head of BALCO) from Bonds, as there were from other athletes. Nor did Bonds regularly appear at BALCO to buy stuff. He rarely communicated with Victor Conte. All of this was handled by Anderson.

Finally, to the best of my recollection, Conte never specifically listed Bonds as one of the athletes to whom he sold performance enhancing drugs, although he named names on other occasions. And Conte has specifically denied selling steroids to Bonds. Again, here's the trick--he has admitted selling steroids to Anderson, so this may be semantic. But he may not have any actual proof that Anderson was buying it for Bonds. The only time that Conte seems to have specifically mentioned Bonds was during a long interview with IRS agents on the day of the BALCO raid, which Conte later called a fabrication. Amazingly, the federal agents didn't record the conversation with Conte, and Conte almost immediately denied the government's description of it. On a related note, this seemed just one of several things that the feds did during the investigation that just seemed completely incompetent to me (such as the way that Conte learned that the feds were searching BALCO's trash).

He did get his urine tested on at least one occasion (Anderson later said the vial should have had his name on it). And Anderson reportedly had some doping calendars at his house. But those alone seem like a stretch.

In short, Bonds let Anderson handle everything, from protocol, to purchase, to shots, and to workouts. Clearly Bonds asked no questions about what Anderson was doing and simply trusted him to handle everything. Equally clearly Bonds knew what Anderson was giving him, especially in light of the physical side effects of the drugs. So common sense seems to suggest that he perjured himself, but a close sifting of the evidence that we know about the evidence seems much less clear. But he seems to have created an almost perfect intermediary in Anderson who could protect him. Every chain of evidence in the case seems to end at Anderson. Although common sense then connects Anderson to Bonds, I can't recall any specific, provable fact that provides that final link.

So if Anderson does not roll over on Bonds, can the prosecutors prove beyond a reasonable doubt that Bonds perjured himself before the grand jury when he denied knowingly taking steroids? For those who have followed the case and/or read the book, remind me of any specific, provable facts that I have forgotten, especially about any specific eyewitness accounts of Bonds getting shots or any paper trail that specifically connects Bonds to performance enhancing drugs, rather than just Anderson. This may explain why the government has so far been unable to indict Bonds without Anderson's testimony, as well as why they are pushing on Anderson so hard to get him to testify. Wihtout Anderson's testimony, I have serious doubts about whether the feds will be able to get Bonds on perjury (although tax evasion should be easier).

20 Comments

Wednesday, July 26, 2006

After Criticizing Jason Leopold, Blogger Seixon Claims Death Threat and Forged Emails.--

1. Background.

Jason Leopold, who used to be a reporter for the L.A. Times and the Dow Jones News Service, has had a bad last few years. His story on former Enron official Thomas White included several plagiarized paragraphs, and its main revelation was an email that Salon editors were unable to verify (the email was suspected to have been fabricated). Salon then retracted Leopold’s article.

When in 2005 Leopold’s book was withdrawn on the eve of release, Howard Kurtz profiled Leopold in the Washington Post:

[A] Salon executive said the source cited by Leopold [in his Enron/White story] as providing the e-mail insisted he had never spoken with Leopold. . . .

The [press] release [sent out for his book] fleshes out a troubled career. Leopold says his grand larceny conviction in 1996 was for stealing compact discs from his employer, a New York music company, and reselling them to record stores. He says he was fired by the Los Angeles Times "for threatening to rip a reporter's head off." Leopold says he quit Dow Jones Newswires in a dispute over his beat but later learned the news service was planning to fire him because of a correction to one of his Enron stories: "Seems I got all of the facts wrong."

Kurtz also suggested an explanation for some of Leopold’s more bizarre actions:

Leopold says he engaged in "lying, cheating and backstabbing," is a former cocaine addict, served time for grand larceny, repeatedly tried to kill himself and has battled mental illness his whole life.

2. Leopold’s TruthOut.Org Stories on Rove and his dispute with blogger Seixon.

In May, 2006 Leopold reported for TruthOut.org that Karl Rove had been indicted by the Grand Jury. In June Leopold reported that the Grand Jury had issued an indictment, Sealed v. Sealed, and that the sealed indictment might have been of Rove (the story was discredited here).

When a DailyKos diarist suggested that Leopold’s story should be taken with “a block of salt,” another diarist from Canada named AnonymousArmy posted a comment on DailyKos that accused Leopold of falling for a fraudulent story from a conspiracy theorist, a posting that triggered a vicious dispute between Leopold, AnonymousArmy, George Gooding (an American living in Norway who blogs as Seixon), and other internet posters and commenters. The blow by blow accounts are quite tedious, but can be reviewed at Seixon here, here, here, here, and here (tip to Instapundit). The misdeeds involve allegations of repeated lying by Leopold, an anonymous posting accusing Gooding of molesting small boys, and a call to Gooding’s parents in the US. Given Leopold's established record of using sock puppets, he can't be ruled out as a suspect in making the anonymous charges of child molestation.

3. Death Threat.

The situation has deteriorated so substantially that today Gooding reports receiving a death threat:

At approximately 7:00 AM Central European Time I received a phone call from a blocked number. The person on the phone told me I had written naughty things on my blog, and then laughed when I asked them who they were.

"You're a dead man."

This is what the person on the line told me right before hanging up.

I called my local authorities and they told me to come down to the station. . . .

I told the police that I believed this person to have been Jason Leopold. Due to the number not showing on my phone, I said I could not be 100% sure who it was. The voice on the phone sounded like Leopold's voice which I have heard on at least one radio interview.

The Ohio Supreme Court's decision in Norwood v. Horney - A Major Victory for Property Rights:

The Ohio Supreme Court's unanimous decision in Norwood v. Horney, issued today, is an important victory for property rights. It is probably the most important judicial decision on eminent domain since Kelo v. City of New London. Perhaps the most significant element of the decision is the fact that the Court went beyond banning "economic development" condemnations of the sort permitted by the U.S. Supreme Court in Kelo, and also suggested that there are state constitutional limitations on the governments' power to condemn property that is designated as "blighted." The Ohio Supreme Court has also become the 11th state supreme court to ban Kelo-style condemnations under its state constitution, a decision which largely negates the shortcomings of Ohio's woefully inadequate post-Kelo "reform" law.

I. Banning Economic Development Takings.

First and most obviously, Norwood bans the condemnation of property for transfer to another private party in order to promote "economic development." The Ohio Supreme Court has now become the eleventh state high court to ban Kelo-style takings under its state constitution, and the second to do so since Kelo was decided (following Oklahoma):

Although we have permitted economic concerns to be considered in addition to other factors, such as slum clearance, when determining whether the public-use requirement is sufficient, we have never found economic benefits alone to be a sufficient public use for a valid taking. We decline to do so now....

We hold that an economic or financial benefit alone is insufficient to satisfy the public-use requirement of Section 19, Article I [of the Ohio Constitution]. In light of that holding, any taking based solely on financial gain is void as a matter of law and the courts owe no deference to a legislative finding that the proposed taking will provide financial benefit to a community.

Unfortunately, there is an important problem here, because the Ohio Court still permits "economic concerns to be considered in addition to other factors, such as slum clearance, when determining whether the public-use requirement" has been met. If this exception is interpreted broadly, it could greatly undermine the impact of Norwood, since local governments can often cite some "other factor" to justify a condemnation that is in reality undertaken for development purposes. A categorical ban on the "economic development" rationale would have been better. If the "other factors" are sufficient to justify condemnation in their own right, well and good. But it is a mistake to allow otherwise inadequate factors to go through because of claims that the condemnation will also promote development. Hopefully, Ohio courts will interpret the "other factor" exception narrowly.

II. Potentially Limiting Blight Condemnations.

The most unique and original aspect of the Norwood decision is the way in which it may limit "blight" condemnations, as well as those purely for "economic development" purposes.

As I have pointed out in both blog posts (e.g., here), and in my academic work (see here and here), broad definitions of blight of the sort which are all too common in state legislation can undermine a ban on economic development takings by licensing local officials to declare virtually any area blighted, thereby allowing the property there to be condemned. Recent state court decisions have concluded that such areas as Times Square and downtown Las Vegas are "blighted," thereby justifying condemnation of property to build a new heaquarters for the New York Times and new parking lots for politically influential Las Vegas casinos. See Las Vegas Downtown Redev. Agency v. Pappas, 76 P.3d 1 (Nev. 2003) (Las Vegas case); In re W. 41st St. Realty v. N.Y. State Urban Dev. Corp., 744 N.Y.S.2d 121 (N.Y. App. Div. 2002) (Times Square case).

The Norwood decision can help put a stop to such abuses, especially if courts in other states choose to adopt its reasoning. In Norwood, numerous homes in relatively good condition were condemned by a local government under an ordinance that allows condemnatin of property that was in a "slum" area, "blighted," or "deteriorated." Only the third of these ("deterioration") was claimed to be present by the government in the Norwood case. The Ohio Supreme Court refused to permit condemnation under this rationale because the city's definition of "deterioration" would permit condemnation of virtually any property in any neighborhood:

As defined by the Norwood Code, a “deteriorating area” is not the same as a “slum, blighted or deteriorated area,” the standard typically employed for a taking. And here, of course, there was no evidence to support a taking under that standard. To the contrary, the buildings in the neighborhood were generally in good condition and the owners were not property-tax delinquent...

The Norwood Code sets forth a fairly comprehensive array of conditions that purport to describe a “deteriorating area,” including those found by the trial judge in this case: incompatible land uses, nonconforming uses, lack of adequate parking facilities, faulty street arrangement, obsolete plotting, diversity of ownership. In addition, the trial court identified the following factors as supporting the determination that the neighborhood was deteriorating: increased traffic, dead-end streets that impede public safety vehicles, numerous curb cuts and driveways, and small front yards. But all of those factors exist in virtually every urban American neighborhood. Because the Norwood Code’s definition of a deteriorating area describes almost any city, it is suspect.

(emphasis added).

Although Norwood addressed only the issue of condemnations of "deteriorated" areas rather than "blighted" ones, the exact same reasons why the Ohio Supreme Court rejected the City of Norwood's "deterioration" rationale can also be used to strike down overly broad definitions of blight.

Up until now, no other state supreme court has confronted the contradiction between banning "economic development" takings and permitting blight condemnations under a virtually limitless definition of "blight." Hopefully, other states will resolve this issue in a way similar to Ohio's approach.

III. Connection to Post-Kelo Legislation.

The Norwood decision is also noteworthy because Ohio recently enacted one of the least effective of all post-Kelo reform statutes. As I explain in greater detail in a forthcoming article (pp. 69-71), the new Ohio law accomplishes almost nothing. The centerpiece of the law is the establishment of a commission to consider eminent domain reform - a commission stacked with representatives of interest groups that benefit from economic development takings.

The conjunction of the Norwood decision and Ohio's virtually useless post-Kelo law emphasizes the need to recognize that we cannot rely exclusively on the political process to protect constitutional property rights, a point I previously stressed here and here. Sometimes, judicial intervention is also needed.

CONFLICT OF INTEREST WATCH: As noted here, I once briefly worked for the Institute for Justice, the public interest law firm that represented the property owners in Norwood and Kelo, and have written several pro bono amicus briefs for them.

UPDATE: I should have also noted the significance of the Ohio Supreme Court's holding that "Courts shall apply heightened scrutiny when reviewing statutes that regulate the use of eminent domain powers." This potentially could limit ALL uses of eminent domain, not just those that transfer the condemned property to private parties (as in Kelo and other "economic development" cases). Two other states (Michigan and Delaware) apply heightened scrutiny to condemnations that greatly benefit particular private interests, but Ohio will be the first state to apply it all uses of eminent domain. It is not yet clear exactly how demanding Ohio's "heightened scrutiny" doctrine is going to be, but it certainly strengthens protection for property owners against eminent domain abuse.

UPDATE #2: A small correction: the Norwood ordinance ultimately at issue in the decision is not the one that permits condemnations of blighted, slum, or deteriorated areas, but a similar one that allows the taking of "deteriorating" property. I missed this distinction in my first reading of the opinion, and thank Institute for Justice attorney Dana Berliner for correcting me.

Related Posts (on one page):

  1. Blight, Sweet Blight - The Problem of Blight Condemnation After Kelo:
  2. The Ohio Supreme Court's decision in Norwood v. Horney - A Major Victory for Property Rights:
  3. Ohio Supremes Limit Eminent Domain:
21 Comments
Credentials and Interdisciplinary Work:

A commenter on an earlier thread faults me for citing Prof. Browne's work as a counterpoint to Prof. Barres':

ev loses significant credibility with me when he attempts to "balance" an article about a scientific subject, written by an expert in the field and published in nature, with an article by a law professor with no scientific expertise in a (presumably student-edited) law review. granted, the nature article was not peer-reviewed either, but the author at least had the credentials and experience to know what he was talking about.

This highlights, I think, an important and oft-forgotten point: While laypeople understandably care about experts' credentials — we lack the talent, time, or both to evaluate the underlying data ourselves — it helps to scrutinize credentials with some care, especially since scholars often cross disciplinary boundaries.

Prof. Browne, for instance, is a law professor who has been trained as a lawyer; but his legal interests have led him to the interdisciplinary field of law and evolutionary biology. Besides law review articles, he has also written two books published by university presses, Divided Labours: An Evolutionary View of Women at Work, in Yale University Press's Darwinism Today series, and Biology at Work: Rethinking Sexual Equality, in Rutgers University Press's Series in Human Evolution. I haven't read the books — I've only looked at Prof. Browne's shorter work — but my sense is that writing such books (1) is not at all outside the competence of an intelligent law professor with a job that permits him to do interdisciplinary work, and (2) will give even someone who doesn't have a Ph.D. in psychology or biology, and who doesn't have an appointment in the psychology or biology department, a pretty broad and deep knowledge of the experimental literature. I'd take quite seriously what Judge Posner has to say about economics, though he's trained as a lawyer rather than an economist; I'm sure many economists disagree with much of what he says, but his opinions are nonetheless worth considering despite his academic background. Likewise with Prof. Browne.

Prof. Barres is indeed trained as a neurobiologist, and is a Professor of Neurobiology. He has written extensively on neuorobiology, and neurobiologists are likely to find work on genetics and cognitive psychology to be quite accessible. On the other hand, Prof. Barres' list of publications does not seem to include any scholarly work on gender differences, unless I've missed some, and setting aside any pieces too recent to include (such as his Nature essay).

It is possible that Prof. Barres has read as deeply and broadly as Prof. Browne on the subject, or even more deeply and broadly. It is possible that he has read less. Whether or not Prof. Barres has studied this field more than Prof. Browne has, Prof. Browne's books on the subject suggest that Prof. Browne has read enough to be taken seriously. In any event, I would not casually dismiss either Prof. Barres' opinion or Prof. Browne's, regardless of the departments in which they teach, the degrees that they have, or the nature of the journal in which they published their shorter work.

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The hardest day of the cruelest month:

For gay-marriage litigants, July has been the cruelest month. Prior to today’s 5-4 Washington Supreme Court decision in Andersen v. King County, there were two substantive state marriage decisions against them (New York and Connecticut), one quasi-substantive federal decision against them (the 8th Circuit, whose broad dicta went beyond the state constitutional ban at issue), and three procedural decisions against them upholding the propriety of ballot initiatives (Massachusetts, Tennessee, and Georgia).

But this may turn out to be the hardest day of all. Andersen is the most careful, closely reasoned, and comprehensive judicial opinion to date rejecting constitutional claims to gay marriage. It is much better, as a matter of conventional legal analysis and craftsmanship, than the New York Court of Appeals decision in Hernandez v. Robles rejecting gay-marriage claims a couple of weeks ago. Since the principles and arguments on this issue from state-to-state, and even in the federal courts, are not that different, the Washington decision will deserve close attention from other courts. Among the courts next to consider claims for gay marriage, the New Jersey Supreme Court in particular should grapple with Andersen.

There is a bright spot in Andersen for gay couples. The court practically invites future litigation and legislation resulting in a Vermont-style civil unions resolution, granting the benefits and protections of marriage to gay couples without the status of “marriage.” This seems the likely direction for future litigation and legislative action in Washington and elsewhere. I'll say more about this below.

Since I addressed many of the constitutional issues in earlier posts reacting to Hernandez v. Robles I won’t go over all that territory again. Instead, I’ll address here some of the distinctive features of the Andersen opinion.

(1) While there was some speculation about possible political motivations for the 17-month period to issue the opinion, it seems in retrospect that the justices were simply taking the time to be very careful on an opinion they knew history would judge them for: writing and re-writing sensitive passages, negotiating with each other, trading drafts among the chambers, waiting to see how other courts might come out. The close result, and the opening paragraphs in particular, chiding not just the dissents for the usual abandonment of legal principles but also the concurrence for needlessly extending the opinions, suggests a court that was sharply divided over how to proceed and struggling to reach broader consensus. Yes, judges can be political and Machiavellian; but sometimes they’re just doing their job as conscientiously as they can. In general, I’d be wary of the conspiracy theories about courts that spring up from the populist resentment of judicial activism.

(2) Unlike the New York Court of Appeals, the Washington court dealt substantively with the question of suspect-class status for gays under equal protection principles. It also avoided the bizarre contextualized analysis of the issue the New York court gave us, and instead dealt with the question whether gays generally constitute a suspect class.

The Andersen court is more confident about the elements of the suspect-class analysis (history of discrimination, immutable and usually irrelevant trait, and political powerlessness) than I think is justified, but its rejection of heightened scrutiny is certainly defensible under the precedents. It acknowledges, as every court addressing the issue has, a history of discrimination against gays. But it says the trait defining the class is not immutable, and seems to hold that immutability is essential to heightened scrutiny. Both halves of this holding are questionable. The Andersen court isn’t clear what it thinks the “defining trait” of this class is – homosexual acts or homosexual orientation – and this ambiguity muddies things a bit. If homosexuals acts are the “defining trait,” it’s not immutable; if homosexual orientation, the best evidence is that it is immutable or very close to immutable. It’s also not clear that immutability is even required, as opposed to one factor among many to be weighed, in the analysis of which groups get heightened scrutiny.

The Andersen opinion also shows how legislative advances for gays are a double-edged sword in litigation over marriage. Some courts upholding gay-marriage or civil unions claims have cited legislative progress – eliminating sodomy laws, making adoptions more widely available, passing employment non-discrimination laws – as evidence that times and attitudes are changing and as support for the idea that the legislature has no very good reason to withhold this last bit of progress from them.

In Andersen, by contrast, the court cites legislative progress as a reason to deny gays suspect-class status, on the dubious theory that a truly powerless group wouldn’t have made such democratic progress. This part of the analysis is questionable, since historical work by William Eskridge and others has shown that groups tend to get heightened scrutiny only after they’ve made legislative progress. And once they’ve gotten suspect class status, they don’t lose it simply because the legislature begins to take their concerns seriously.

I have always thought there was room for a good suspect-classification argument, but there’s no doubt the weight of precedent is on the side of the Andersen court.

(3) On whether the plaintiffs have a fundamental right to marry, the Andersen opinion is also better than Hernandez. It avoids directly resolving the level-of-generality problem, i.e., is the issue a “fundamental right to marry” or a “fundamental right to marry a person of the same sex”? Instead, it resolves the issue in good lawyerly fashion by looking closely at the Supreme Court’s cases dealing with the fundamental right to marry, including cases the New York Court of Appeals ignored, like Turner v. Safley (involving marriage for prison inmates). Andersen reads these cases as linking marriage to procreation. That’s not the only way to read the precedents and it doesn’t make much sense of the modern conception of marriage, but as an interpretation of doctrine it’s defensible and perhaps the best view.

(4) Once it rejected any reason to apply heightened scrutiny to the exclusion of gay couples from marriage, the Andersen court applies a standard rational-basis review. The court rightly describes this form of review as “extremely deferential” and granting the state “nearly limitless” power to make policy as it sees fit. Here, the court does a much better job than did Hernandez explaining why it’s constitutionally rational for the state to create a special status for heterosexual couples. The underinclusiveness and overinclusiveness of the classification in relation to the claimed interests – promoting procreation and child welfare – are very poor policy reasons to exclude gay couples from marriage, and the court implicitly recognizes this at several points in the opinion. But they’re sufficient for traditional rational basis review, absent some good indication of animus. The court explains – unlike the New York court — that the issue is not whether excluding gay couples from marriage advances these interests in any way (the exclusion of gay couples does not plausibly advance them) but whether including straight couples in marriage advances these interests (it clearly does).

(5) Andersen quickly, and I think correctly, dismisses the claim that due process “privacy” interests command the inclusion of gay couples in marriage. Marriage is not a purely private matter, though important aspects of the marital relationship are private and it is an intensely personal experience for couples and families. Marriage is full of public benefits and privileges that make it a public investment and a matter of public concern.

(6) The Washington opinion also rejects the sex-discrimination argument much more convincingly than did the New York court. Andersen does as good a job as I’ve seen in a judicial opinion of refuting “the Loving analogy,” which suggests that excluding same-sex couples from marriage is constitutionally analogous to excluding interracial couples from marriage. Moreover, the opinion deals not just with the formal aspects of the sex-discrimination argument (marriage laws classify on the basis of sex) but also with the sociological claim (that marriage laws have the impermissible purpose or effect of perpetuating gender stereotypes). The sociological claim about gender stereotypes seems a crabbed view of marriage, its public purposes and effects.

(7) Finally, there’s a potentially significant passage in the middle of the opinion that might get overlooked on a first read:

We do not dispute that same-sex couples raise children or that the demographics of "family" have changed significantly over the past decades. We recognize that same-sex couples enter significant, committed relationships that include children, whether adopted, conceived through assisted reproduction, or brought within the family of the same-sex couple after the end of a heterosexual relationship. We do not doubt that times have changed and are changing, and that courts and legislatures are increasingly faced with the need to answer significant legal questions regarding the families and property of same-sex couples. (Citations omitted).

We are also acutely aware, from the records in these cases and the briefing by the plaintiffs and the amici supporting them, that many day-to- day decisions that are routine for married couples are more complex, more agonizing, and more costly for same-sex couples. A married person may be entitled to health care and other benefits through a spouse. A married person's property may pass to the other upon death through intestacy laws or under community property laws or agreements. Married couples may execute community property agreements and durable powers of attorney for medical emergencies without fear they will not be honored on the basis the couple is of the same sex and unmarried. Unlike heterosexual couples who automatically have the advantages of such laws upon marriage, whether they have children or not, same-sex couples do not have the same rights with regard to their life partners that facilitate practical day-to-day living, involving such things as medical conditions and emergencies (which may become of more concern with aging), basic property transactions, and devolution of property upon death.

Lest you think these are just crocodile tears from a gutless court delivering gay families to the tender mercies of the heartless legislature, the court continued:

But plaintiffs have affirmatively asked that we not consider any claim regarding statutory benefits and obligations separate from the status of marriage. We thus have no cause for considering whether denial of statutory rights and obligations to same-sex couples, apart from the status of marriage, violates the state or federal constitution. (emphasis added)

This qualification is repeated at the end of the opinion, along with another recitation of the ways the denial of marriage harms gay families and with a strong suggestion that “the legislature may want to reexamine the impact of the marriage laws on all citizens of this state.”

To the state legislature, the message seems to be this: “Get moving on addressing the hardships faced by gay couples and their children, some of which we’ve listed for you. You don’t have to give them marriage and maybe not even all of the rights of marriage, but something needs to be done. If you don’t act, we might.”

To gay-marriage litigants, the message seems to be this: “Go to the legislature and see what can be done about the sorts of problems you’ve identified and that we agree exist. If the legislature is unresponsive, come back to us not with a claim for the status of marriage, but with a remedial claim for the benefits and protections of marriage for your families.”

My guess is that this dual message was necessary to get the five votes needed to uphold the state’s marriage laws.

I’ve said before that courts confronting gay-marriage claims may now see three choices: (1) ordering full marriage (Massachusetts); (2) denying the claims (New York); and (3) compromising on civil unions, with instructions to the legislature to decide on implementation (Vermont). Choice #3 involves many complications and permutations.

Though superficially opting for #2, the Washington court would like very much to give #3 a try. It’s a sensible direction for litigants, legislatures, and courts.

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Whoops!

NewsBusters reports (for links, go to the NewsBusters site):

Former CNN and MSNBC commentator Bill Press has denounced bloggers as people "with no credentials, no sources, no rules, no editors and no accountability."

On his official site, BillPressShow.com, Bill Press ... reported [last week] on the "Lovenstein Institute of Scranton, Pennsylvania" and their IQ study that the last six Republican presidents have had an average IQ of 115.5, while the last six Democrats had an average IQ of 156. Press proudly noted that it was with "President Clinton leading the class at 182."

As for George W. Bush:

You guessed it again: George W. Bush, with his rock bottom IQ of 91: seven points lower than his Daddy.

So now we know. Iraq, Iran, North Korea, Social Security, Medicare, Stem Cells, FEMA, the deficit, immigration...

The reason George Bush has screwed up in so many areas the last six years.

He’s not just incompetent. He’s just plain dumb – the dumbest president in the last 50 years.

The only problem with this stunning "new development" is that it is a joke, a five-year-old one. According to Snopes.com [details omitted -EV].... [The item has been removed from the site, but i]t can still be accessed with Google Cache....

Snopes, incidentally, reports that "As obvious as this joke was, at least two publications were taken in by it: The [London] Guardian and the New Zealand Southland Times. Both ran the "Presidential I.Q." tale as a factual item (on 19 July and 7 August 2001 respectively). The Associated Press publicized The Guardian's error on 12 August, moving The Guardian to post a retraction on 14 August, and U.S. News & World Report clearly reported the I.Q. item as a hoax on 20 August, 2001." Several news reports also state that Doonesbury had fallen for the same hoax.

UPDATE: By the way, here's an OpinionJournal Best of the Web item on this from the 2001 hoax season.

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Scientific Debate, Proof, and Conjecture:

Some commenters to my earlier post reason:

It [presumably discussion of possible innate gender differences in cognition] shouldn't be suppressed for political reasons. I think that a scientific issue, though, shouldn't be taught if there's not good scientific evidence for it. And I haven't seen good scientific evidence for this theory

I think the words "without proof" are implied from the second paragraph.

I.E. "when faculty tell their students that they are innately inferior, without proof, based on race, religion, gender or sexual orientation, they are crossing a line that should not be crossed"

I can see that as being fair.

Yet not every step in the scientific process can (or should) contain "proof" in any strong sense of the word. Scientific debates often present conjectures based on ambiguous evidence. The conjectures lead to responses, often equally conjectural. Evidence on one side or the other grows or shrinks. We often get something approaching "proof" only after decades of unproven conjectures have led to more evidence-gathering and more discussion.

This is especially so in areas (including biology and social science) where the evidence tends to be suggestive, not dispositive, and confounding factors are always potentially present. Even in math, though, where "proof" is indeed the touchstone, unproven conjectures are often made. If you couldn't say anything without "proof," whether logical proof, proof beyond a reasonable doubt, or even proof by a preponderance of the evidence as determined by some campus committee, scientific debate would be much curtailed.

I agree with Frank that professors who are teaching classes shouldn't teach as true statements that haven't been adequately proven. But Summers wasn't teaching a class, nor did he assert his claims as having been proven true. If professors can't express such conjectures — yet presumably their rivals would be quite free to present contrary conjectures, unless we're to completely eliminate public conjecture in science — then what sort of debate would we have?

Now perhaps conjectures that are entirely unbacked by any evidence, or backed by asserted evidence or reasoning that has been conclusively disproven through decades of open debate, are sufficiently implausible that we'd fault people who make them. But there is indeed a hot debate on the subject, involving some pretty serious people on both sides. There is evidence that some say points towards biological differences, and that others think is not probative enough (since it's so hard to isolate biological causes from social causes). There is the unquestioned reality that men and women are materially different chromosomally, hormonally, and physically, and that male and female animals of other species (where the explanation must presumably be biology and not "culture" divorced from biology) are often different in temperament and behavior. This at least suggests that looking for possible biological cognitive and temperamental differences and differences in distribution of various traits, alongside the chromosomal, hormonal, and physical differences, is not obviously a fool's errand — and thus is plausible fodder for conjecture and discussion of suggestive evidence, even in the absence of conclusive proof.

We have, as best I can tell from my layman's perspective, a serious and potentially intellectually exciting debate here. Shutting off one side, imposing on one side requirements of "proof" that bar the proposal of scientific conjectures, or for that matter imposing on both sides such requirements, strikes me as bad both for our knowledge of this subject and for scientific debate more generally.

UPDATE: In the post in which I first mentioned Prof. Barres' article, I linked to the article and also to an Edge.org debate between Steven Pinker and Elizabeth Spelke.

I probably should have also, for balance, linked to an article that takes the view contrary to Prof. Barres'; since I suspect that the attention on this thread has shifted from that post to this more recent one, I decided to add that link here -- it's to Kingsley Browne, Women in Science: Biological Factors Should Not Be Ignored, 11 Cardozo Women's Law Journal 509 (2005). Browne's piece is just a short version of some much longer work he's done, but I figure that shorter is often better for at least a first look at the matter. I stress again that I'm not claiming I know what the right answer is; I'm just trying to pass along pointers to both sides of the argument.

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More Death Penalty Dissension on the Sixth Circuit:

The disagreements over death penalty litigation continue on the U.S. Court of Appeals for the Sixth Circuit. The latest round comes from the case of Poindexter v. Mitchell, in which a three-judge panel unanimously upheld a capital defendant's claim that he received ineffective assistance of counsel during the sentencing phase, but in the process produced four opinions.

In 1985, Dewaine Poindexter was convicted of two counts of aggravated murder, among other crimes, and sentenced to death. After years of litigation, Poindexter filed a federal habeas claim. Among other things, Poindexter alleged ineffective assistance of counsel during the sentencing phase becase his counsel failed to conduct an adequate investigation of potentially mitigating evidence. On Monday, the Sixth Circuit upheld this claim, vacating Poindexter's death sentence pending a new sentencing proceeding in a unanimous opinion authored by Judge Suhrheinrich.

The disagreement among the judges was not over whether Poindexter should prevail. All three judges on the panel -- Suhrheinrich, Daughtrey, and Boggs -- agreed that existing precedent was clear. They disagreed over whether it was wise -- and how existing precedents might influence strategic choices made by defense attorneys in capital cases.

Chief Judge Boggs wrote separately "to note the continuing oddity of the circumstances of cases such as this." Boggs continued:

To put it bluntly, it might well appear to a disinterested observer that the most incompetent and ineffective counsel that can be provided to a convicted and death-eligible defendant is a fully-investigated and competent penalty-phase defense under the precedents of the Supreme Court and of our court. That is, the primary means by which a prisoner escapes the affirmance of a death sentence in this circuit has become a finding that “ineffective” counsel was provided at the penalty phase. Thus, if counsel provides fully-effective assistance, and the jury simply does not buy the defense, then the defendant is likely to be executed. However, if counsel provides ineffective assistance, then the prisoner is likely to be spared, certainly for many years, and frequently forever. [citations omitted]
Boggs further noted that whether "mitigating evidence" will reduce the likelihood that a capital defendant receives the death penalty is wholly speculative. The end result is that defense attorneys face a "moral hazard" in which any "sensible attorney" would be likely to reason as follows:
If I make an all-out investigation, and analyze and present to the jury every possible mitigating circumstance, especially of the “troubled childhood” variety, it is my professional judgment that I may thereby increase the probability of this extremely repellant client escaping the death penalty from 10% to 12%. On the other hand, if I present reasonably available evidence that I think has as good a chance as any other in securing the slim chance of mercy from the jury, I will have a 50-99% chance of overturning the extremely likely death penalty judgment 10-15 years down the road. I will thus have secured many additional years of life for the client, and he may very likely avoid capital punishment altogether.
Boggs made clear that he was not accusing the attorneys in this (or any other) case of making such a judgment, "consciously or unconsciously." Nonetheless, he noted, "our jurisprudence has made such a line of reasoning virtually inevitable for any defense attorney."

Judge Daughtrey took exception to Cheif Judge Boggs's concurrence, so she penned one of her own "in order to express my dismay at Judge Boggs's unjustified attack directly on both the cpiatal defense bar and indirectly on the members of this court." Daughtrey continued:

For the chief judge of a federal appellate court to state that it is “virtually inevitable” that “any mildly-sentient defense attorney” would consider playing the equivalent of Russian roulette with the life of a client is truly disturbing. Such a comment is an affront to the dedication of the women and men who struggle tirelessly to uphold their ethical duty to investigate fully and present professionally all viable defenses available to their clients. It also silently accuses the judges on this court of complicity in the alleged fraud by countenancing the tactics outlined.
According to Dughtrey, if there are problems with finality in death penalty litigationk it is more likely due to the fact that "those lawyers representing the absolute pariahs of society are frequently hamstrung by a critical lack of relevant experience, an obvious lack of time and resources, or both."

Not to be left out, Judge Suhrheinrich also wrote his own brief concurrence, though only to agree with Chief Judge Boggs.

I agree with Judge boggs. I think Judge Boggs accurately points out the difficulties with the current legal doctrine concerning ineffective assistance of counsel in death penalty cases at the penalty phase. I do not share Judge Daughtrey’s views of defense counsel in these types of case as my experiences have been different. [citations omitted]
This is not certainly not the last episode of Sixth Circuit dissension in death penalty cases, so stay tuned for the next chapter.

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A Little Thin-Skinned, No?

The Denver Post reports:

[A] group of residents vow that [Greeley Councilman LeRoy Johnson's] comment in a recent public hearing about the women in Greeley's Cranford neighborhood will cost him his council seat.

After a six-hour hearing on a proposal to give the Cranford area historic designation status, Johnson told a packed City Council chamber that the neighborhood had some nice homes, and "they have some pretty good-looking women who live there." ...

[Johnson later] said he only wanted to "inject some humor into the proceedings." ...

Greeley resident David Gutierrez said Johnson's comments and his past brushes with the law show a lack of integrity and judgment. Gutierrez will lead a recall drive against Johnson, who has said he is not going to resign from the post he has held since November 2003.

"His comments insult every mom, wife, daughter and sister in the entire city," Gutierrez said, adding that paperwork for the recall effort should be filed by Wednesday.

Johnson's past history (which includes fights that led to criminal citations) may well suggest a lack of judgment; and the remark doesn't show him to be particularly witty, funny, or even chivalrous. But how exactly does saying that there are some pretty good-looking women who live in a neighborhood — or even implying, obviously facetiously, that this is a reason to give the area historic status — insult moms, wives, daughters, and sisters? Or is it that moms, wives, daughters, and sisters who live in other neighborhoods are insulted at the suggestion that they aren't as likely to be good-looking?

Councilman Johnson may well be a dunderhead, and one that Greeley residents shouldn't want representing them. But I don't see much value in the tendency (of which this is just one example) to turn every foolish statement into an alleged insult.

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Should Speech About Gender Cognitive Differences "Not Be Tolerated" on Campus, and Instead Treated as "Verbal Violence" Rather Than "Free Speech"?

I blogged yesterday about Stanford neurobiology professor Ben Barres' article in Nature; I thought his argument was quite interesting, and may be generally quite right as a scientific matter (my correction was only focused on one error, which may not affect the bottom line). Yet the following passage from the article troubles me (emphasis added):

Steven Pinker has responded to critics of the Larry Summers Hypothesis by suggesting that they are angry because they feel the idea that women are innately inferior is so dangerous that it is sinful even to think about it. Harvard Law School professor Alan Dershowitz sympathizes so strongly with this view that he plans to teach a course next year called 'Taboo'. At Harvard we must have veritas; all ideas are fair game. I completely agree. I welcome any future studies that will provide a better understanding of why women and minorities are not advancing at the expected rate in science and so many other professions.

But it is not the idea alone that has sparked anger. Disadvantaged people are wondering why privileged people are brushing the truth under the carpet. If a famous scientist or a president of a prestigious university is going to pronounce in public that women are likely to be innately inferior, would it be too much to ask that they be aware of the relevant data? It would seem that just as the bar goes way up for women applicants in academic selection processes, it goes way down when men are evaluating the evidence for why women are not advancing in science. That is why women are angry. It is incumbent upon those proclaiming gender differences in abilities to rigorously address whether suspected differences are real before suggesting that a whole group of people is innately wired to fail.

What happens at Harvard and other universities serves as a model for many other institutions, so it would be good to get it right. To anyone who is upset at the thought that free speech is not fully protected on university campuses, I would like to ask, as did third-year Harvard Law student Tammy Pettinato: what is the difference between a faculty member calling their African-American students lazy and one pronouncing that women are innately inferior? Some have suggested that those who are angry at Larry Summers' comments should simply fight words with more words (hence this essay). In my view, when faculty tell their students that they are innately inferior based on race, religion, gender or sexual orientation, they are crossing a line that should not be crossed — the line that divides free speech from verbal violence — and it should not be tolerated at Harvard or anywhere else. In a culture where women's abilities are not respected, women cannot effectively learn, advance, lead or participate in society in a fulfilling way.

As best I can tell, Prof. Barres is arguing that those like Larry Summers who believe that the disparate representation of men and women in certain fields flows partly from biological cognitive differences ought not be allowed to express their views, at least at the university. Such speech, he argues, is not "free speech" but instead "verbal violence" and "should not be tolerated at Harvard or anywhere else." What's more, he seems to be distancing himself from the view that this lack of "tolerat[ion]" should extend only to counterargument (though he himself engages in this): This view, he says, is what "Some have suggested," while "In [Barres'] view," statements like Summers' should not be tolerated and should instead be treated like verbal violence (and violence is usually fought through tools other than counterspeech) rather than speech.

This strikes me as an extremely troubling proposition. Prof. Barres may have the better of the scientific argument — but here he seems to be suggesting that we shut down the scientific argument, by refusing to "tolerate[]" or treat as "free speech" contrary views. This (1) risks suppressing true counterarguments to Prof. Barres' views, if it turns out that Prof. Barres' is mistaken (at least in part).

It also (2) undermines the credibility of Prof. Barres' own views, even if they're completely correct. As a layperson, I don't know who's right on this debate. Prof. Barres may be sure based on his own extensive research, but naturally most of the rest of us — including the rest of the colleagues who are deciding whether to condemn statements like Prof. Summers' and "not [to] tolerate[]" such statements in the future — can't be.

If after decades of open and tolerant discussion Prof. Barres' view emerges as the dominant one, laypeople like us can have considerable confidence in its accuracy. (This is why, despite our general openmindedness, we would indeed have little social and professional tolerance for someone who urges the phlogiston theory of fire or something that's been similarly broadly discredited.) If, however, we know that Prof. Barres' view prevailed but only in a debate in which rival views were not tolerated, and were punished as "verbal violence" rather than protected as "free speech," then we can have no confidence in the view's accuracy. For all we know, the view may be largely wrong, and contradicted by important data, but that data has been hidden from us by speech codes or by scientific peer pressure.

Of course, Prof. Barres' position (3) would also set a tremendously dangerous precedent for other fields. Prof. Barres seems to also argue that academics shouldn't be allowed to argue about whether there are important innate racial differences, or innate sexual orientation differences. Apparently one can investigate and debate whether sexual orientation is partly or largely genetically caused, I take it, but not whether it may be correlated with other genetic traits. There'd also be some unclear limits on criticism of religion: Literally his argument is only that faculty may not be allowed to tell their students (or presumably give speeches, such as Summers', that students may hear about) "that they are innately inferior based on ... religion," and it's not clear what innate inferiority based on religion might be (though I have seen discussion of whether a tendency towards religiosity might indeed be genetically linked). But the logic of his argument would suggest that harsh criticisms of certain religious ideological systems that may make adherents of those systems feel unwelcome would also be prohibitable. And those are just Prof. Barres' specific examples; the same arguments could apply to suppressing a wide range of supposedly dangerous academic viewpoints.

Now I understand part of people's concern about discussion of innate gender differences: If certain students get alienated or dispirited enough by such statements, for instance because they're insulted by them or because they wrongly infer that such assertions about broad populations mean that they themselves have no future in some field, they may stay away from certain fields, or certain universities. I do think there are social factors that push many girls and women away from science and engineering, and I think those factors are costly for universities and for society as a whole. Universities and other institutions should work hard to diminish these factors, and to encourage people with mathematical and scientific aptitude — boys and girls alike — to go into math and science (plus encourage people without such aptitude to nonetheless get some decent grasp of the basics).

Such efforts on the part of university, however, should not come at the expense of constraining academic debate about very important scientific issues such as the interaction of gender and cognition. If some students are offended by scientific theories faculty propose, they should be taught to respond with research, analysis, and (if the theories are wrong as well as offensive) rebuttal, not alienation. If some students are dispirited by the implications of those theories, they should be taught to understand the limits of those implications. If some students are concerned about sex discrimination both in society and in their institutions, they should certainly fight it (including by researching the matter, and seeing to what extent any observed disparities flow from discrimination, and to what extent, if any, they may flow from genuine biological differences).

But students should never be taught that apparently dangerous ideas about what is true ought to be fought through suppression, rather than investigation and (when called for) rebuttal. And that brings us to one other problem with Prof. Barres' proposal: (4) It would teach the next generation of scientists the wrong approach to science — an approach that urges them to premature certainty rather than constant doubt and inquiry, and an approach that urges them to suppress contrary views rather than rebut them. That's a poor service to all students, whether male or female.

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The Market Bubble Bursts . . . For Baseball Cards: In Slate, David Jamieson has a terrific article on what happened to the once-booming market in baseball cards. It turns out that the market peaked in the early 1990s, and now cards aren't worth nearly what they used to be worth. I can certainly relate to this excerpt (although I would have been the newbie collector in the story):
  When I was a kid, you weren't normal if you didn't have at least a passing interest in baseball cards. My friends and I spent our summer days drooling over the display cases in local card shops, one of which was run by a guy named Fat Moose. The owners tolerated us until someone inevitably tried to steal a wax pack, which would get us all banished from the store. Then we'd bike over to the Rite Aid and rummage through their stock of Topps and Fleer.
  Card-trading was our pastime, and our issues of Beckett Baseball Card Monthly were our stock tickers. I considered myself a major player on the neighborhood trading circuit. It was hard work convincing a newbie collector that Steve Balboni would have a stronger career than Roger Clemens. If negotiations stalled, my favorite move was to sweeten the pot by throwing in a Phil Rizzuto card that only I knew had once sat in a pool of orange juice. After the deal went through, my buddy wouldn't know he'd been ripped off until his older brother told him. He always got over it, because he had no choice: Baseball cards were our common language.
Looking on the bright side, now is a pretty good time to pick up that Mickey Mantle or Ted Williams that you always wanted when you were a kid.
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Washington High Court Upholds Exclusion of Gay Couples From Marriage:

Over the objections of four dissenters, the court turned away a state constitutional challenge to Washington's marriage law. Here's a summary of the holding from the opinion itself:

In brief, unless a law is a grant of positive favoritism to a minority class, we apply the same constitutional analysis under the state constitution's privileges and immunities clause that is applied under the federal constitution's equal protection clause. DOMA does not grant a privilege or immunity to a favored minority class, and we accordingly apply the federal analysis. The plaintiffs have not established that they are members of a suspect class or that they have a fundamental right to marriage that includes the right to marry a person of the same sex. Therefore, we apply the highly deferential rational basis standard of review to the legislature's decision that only opposite-sex couples are entitled to civil marriage in this state. Under this standard, DOMA is constitutional because the legislature was entitled to believe that limiting marriage to opposite-sex couples furthers procreation, essential to survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children's biological parents. Allowing same-sex couples to marry does not, in the legislature's view, further these purposes.2 Accordingly, there is no violation of the privileges and immunities clause.

There also is no violation of the state due process clause. DOMA bears a reasonable relationship to legitimate state interests -- procreation and child-rearing. Nor do we find DOMA invalid as a violation of privacy interests protected by article I, section 7 of the Washington State Constitution. The people of Washington have not had in the past nor, at this time, are they entitled to an expectation that they may choose to marry a person of the same sex.

Finally, DOMA does not violate the state constitution's equal rights amendment because that provision prohibits laws that render benefits to or restrict or deny rights of one sex. DOMA treats both sexes the same; neither a man nor a woman may marry a person of the same sex.

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Ohio Supremes Limit Eminent Domain:

Landowners challenging the use of eminent domain for economic development in Norwood, Ohio have emerged victorious. According to a unanimous Ohio Supreme Court, the economic benefits of redevelopment projects, by themselves, do not satisfy the "publc use" requirment of Article I, section 19 of the Ohio Constitution. The Court further held that the relevant standard for a blight designation — a “deteriorating area” — was void for vagueness and also unconstitutional.

The decision is here. Some local news coverage is here. I am sure my co-bloggers will have more to say about this decision later.

UPDATE: How Appealing rounds up some more early coverage here. The Institute for Justice, which represented the homeowners challenging the use of eminent domain in this case (as well as in Kelo), has background on the case here.

FURTHER UPDATE: Here is how the court describes its holdings:

We hold that although economic factors may be considered in determining whether private property may be appropriated, the fact that the appropriation would provide an economic benefit to the government and community, standing alone, does not satisfy the public-use requirement of Section 19, Article I of the Ohio Constitution.

We also hold that the void-for-vagueness doctrine applies to statutes that regulate the use of eminent-domain powers. Courts shall apply heightened scrutiny when reviewing statutes that regulate the use of eminentdomain powers. Applying that standard, we find that Norwood’s use of “deteriorating area” as a standard for appropriation is void for vagueness. We further hold that the use of the term “deteriorating area” as a standard for a taking is unconstitutional because the term inherently incorporates speculation as to the future condition of the property to be appropriated rather than the condition of the property at the time of the taking.

Finally, we hold that the provision in R.C. 163.19 that prohibits a court from enjoining the taking and using of property appropriated by the government after the compensation for the property has been deposited with the court but prior to appellate review of the taking violates the separation-of-powers doctrine and is therefore unconstitutional. We further hold that the unconstitutional portion of R.C. 163.19 can be severed from the rest of the statute, and, accordingly, the remainder of the statute remains in effect.

FINAL UPDATE (FOR NOW): Based upon a quick read of the opinion, this seems to be quite a resounding victory for opponents of eminent domain. It also seems to me that this opinion relies upon (or at least cites to) academic commentary far more extensively than the typical Ohio Supreme Court opinion. Indeed, it is not every day that one sees an opinion issued by any court that cites both Richard Epstein and Edith Wharton!

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U.S. House votes to ban gun confiscation in disasters:

On Tuesday, the House of Representatives voted 322 to 99 to prohibit federal employees, as well as state and local police which receive federal funding (that is, most of them) from confiscating lawfully-owned firearms. "The Disaster Recovery Personal Protection Act" (H.R. 5013) was sponsored by Rep. Bobby Jindal (R-Louisiana), in response to the illegal gun confiscation perpertrated by two Louisiana parishes after Hurricane Katrina. (For the VC's discussion of the issue last fall, and for other documents related to the contoversy, start here and follow the links.)

A similar measure, sponsored by Louisiana Senator David Vitter (R), as a rider to the homeland security appropriations bill, H.R. 5441, passed the Senate 84-16 last week. Section 570 of that bill simply states "None of the funds appropriated by this Act shall be used for the seizure of a firearm based on the existence of a declaration or state of emergency."

The Jindal bill prohibits federal and state/local police from confiscating (at any time, not just after a natural disaster) firearms which are legally owned under state and federal law. The bill likewise forbids police from requiring the registration of firearms, or prohibiting the possession of firearms in particular places, to the extent that registration or possession bans are not authorized by federal or state law. Finally, the bill forbids federal officers from banning on the otherwise-lawful carrying of firearms by persons engaged in disaster relief under federal supervision. The bill creates a right to sue for persons aggrieved by the violation of the law, and provides for the award of attorney's fee to victorious plaintiffs.

The bill's findings state:

(1) The Second Amendment to the Constitution states, `A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed,' and Congress has repeatedly recognized this language as protecting an individual right.

(4) Many of these citizens [those affected by Katrina] lawfully kept firearms for the safety of themselves, their loved ones, their businesses, and their property, as guaranteed by the Second Amendment, and used their firearms, individually or in concert with their neighbors, for protection against crime.

(5) In the wake of Hurricane Katrina, certain agencies confiscated the firearms of these citizens, in contravention of the Second Amendment, depriving these citizens of the right to keep and bear arms and rendering them helpless against criminal activity.

(6) These confiscations were carried out at gunpoint, by nonconsensual entries into private homes, by traffic checkpoints, by stoppage of boats, and otherwise by force.

(8) The means by which the confiscations were carried out, which included intrusion into the home, temporary detention of persons, and seizures of property, constituted unreasonable searches and seizures and deprived these citizens of liberty and property without due process of law in violation of fundamental rights under the Constitution.

(9) Many citizens who took temporary refuge in emergency housing were prohibited from storing firearms on the premises, and were thus treated as second-class citizens who had forfeited their constitutional right to keep and bear arms.

(11) These confiscations and prohibitions, and the means by which they were carried out, deprived the citizens of Louisiana not only of their right to keep and bear arms, but also of their rights to personal security, personal liberty, and private property, all in violation of the Constitution and laws of the United States.

If the Jindal bill becomes law in its current form, then the bill would be the fifth time in which a Congressional law has formally recognized the Second Amendment as an individual right. These laws are the Freedmen's Bureau Act of 1866, the 1941 Property Requisition Act, the Firearms Owners' Protection Act of 1986, and the 2005 Protection of Lawful Commerce in Firearms Act (S. 397). See Stephen Halbrook's Tennessee Law Review article for discussion of the first three.

Interestingly, the Jindal bill refers to a plaintiff's "rights, privileges, or immunities", while S. 397 stated Congress's intent to protect the "rights, privileges, and immunities guaranteed to a citizen of the United States under the Fourteenth Amendment to the United States Constitution."

Under the Supreme Court's narrowest readings of the Privileges and Immunities clause of the 14th Amendment, nothing in the Bill of Rights is a Privilege and Immunity. Arguably, the Congressional bills could be said to be related to the few national rights which have been held to a P&I of national citizenship. For example, gun prohibition (enforced through outright confiscation, or through lawsuit-based destruction of the firearms business) might be said to impose an impermissible burden on the right of interstate travel. (The 1986 FOPA contains preemption language protecting interstate travelers with unloaded guns which are not "directly accessible from the passenger compartment." The preemption applies only if the traveler may lawfully possess the gun in both his place of origin and his destination. Section III.D.2 of David Hardy's huge article on FOPA supplies the details.)

On the other hand, the repeated Privileges & Immunities language might be considered a signal to the Court that its narrow P&I decisions were mistaken, and ought to be reconsidered, and that the Second Amendment is among the Privileges & Immunities guaranteed by the Fourteenth Amendment. Of course neither the Congressional hints about P&I, nor the repeated explicit statements about the Second Amendment are binding on the courts. On the other hand, the Court is often reluctant to diverge too far from public sentiment, and the huge, bipartisan majority in favor of the Jindal bill (especially if it becomes law) as well as the substantial bipartisan support for the Protection of Lawful Commerce in Firearms Act might well be regarded by Supreme Court Justices who believe in "a living Constitution" as proof that the Second Amendment is alive and well, and not obsolete or irrelevant, or confined only to the National Guard, as some law review authors have claimed.

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Was Lochner Counter-Majoritarian?:

Legal scholars generally assume that the Supreme Court's decision in Lochner v. New York, invalidating a state-imposed 60 hour work week for bakers, was "counter-majoritarian" [update: in terms of diverging from a national political consensus] For example, Paul Finkelman, an excellent legal historian, recently wrote, in the Harvard Law Review: "A majority of the Justices had no qualms about offending the public in Lochner.... the Court might still have chosen to ignore public sentiment in Plessy and Berea College, just as it did in Lochner." John Semonche more specifically claims that "[n]ot since the debacle of 1895 [when the Supreme Court invalidated the federal income tax and upheld an injunction against Eugene V. Debs's American Railway Union strike] had a case stirred as much protest in the popular press and professional journals.

Yet, in researching my just-published article on the history of Lochner, I found little evidence of overwhelming public sentiment against Lochner, and, indeed, found a surprising level of support for the decision in contemporary periodicals:

The few libertarian periodicals of the day hailed Lochner, seeing it as a blow against labor union tyranny. The Nation,for example, editorialized that the main effect of the decision "will be to stop the subterfuge by which, under the pretext of conserving the public health, the unionists have sought to delimit the competition of non-unionists, and so to establish a quasi-monopoly of many important kinds of labor."

Editorials in some major newspapers also applauded the decision. The New York Times praised the Supreme Court for refusing to enforce "any contracts which may have been made between the demagogues in the Legislature and the ignoramuses among the labor leaders in bringing to naught their combined machinations." The Washington Post initially noted that the opinion allowed for reasonable police power regulation. The Post, defending the Court from its critics, later added that the liberty of contract between employer and employee protected in Lochner "is a principle older than the Constitution or the statutes. Its maintenance is indispensable to the preservation of liberty." The Los Angeles Times published two editorials praising Lochner. The Literary Digest reported that the Brooklyn Eagle, New York Press, Brooklyn Standard Union, Baltimore Sun, and Baltimore News all praised the decision. ...

In contrast, the Lochner ruling met with immediate condemnation in Progressive and labor union circles and in some mainstream newspapers [Brooklyn Times, Brooklyn Citizen, and Philadelphia Press].

What I did find was that law review commentary was overwhelmingly hostile to Lochner, often on the grounds that the court ignored "social reality" in favor of "abstract reasoning" [critics neglected Justice Peckham's statement that his view of the relative healthfulness of baking was informed by "looking through statistics regarding all trades and occupations"], and has remained so for the next 100+ years.

I wonder, then, whether the conventional wisdom that Lochner was wildly unpopular, or even that it was meaningfully counter-majoritarian, really has any basis, or is a matter of historians and law professors projecting their own views, and the views of their academic predecessors, onto the public at large, and also giving more weight to the views of labor union activists than their influence at the time in the general population would warrant.

UPDATE: The newspaper editorials don't prove that Lochner was popular, but they contradict Semonche's claims about the "popular press." And I don't reject the possibility that "public sentiment" was very hostile to Lochner. I'd just like to see the evidence. To get an idea of the relevance of this to constitutional history and constitutional theory, consider Finkelman's claim: given that the Court was willing to ignore popular opinion in Lochner, it could have easily done the same in Plessy, if it had only chosen to. The conclusion is that the Court was some combination of racist, cowardly on race, and much more concerned with economic rights than the rights of blacks. That may be true, but if sixty-hour laws had a much weaker popular constituency than did segregation laws, and one accepts the fact that the Court is a political body sensitive to how its decisions will be received, it would be tough to argue that Lochner provides much supporting evidence.

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Tuesday, July 25, 2006

Unusual Article on House Vote in Support of Israel:

When's the last time you saw an article in the Washington Post on an incredibly lopsided vote in the U.S. House of Representatives (in this case, 410-8) that gave most of its attention to the views of the losing side?

UPDATE: As I note in the comments below, in case my point was too subtle, the Post story is an editorial in the guise of a news story.

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How not to conduct a deposition:

From Andrew Sullivan, a YouTube video showing a deposition that got out of hand. There's plenty of blame to go around, but from the looks of these excerpts the deposition-taker and at least one of his allies should have been sanctioned.

Any readers know what actually happened in the (likely) motions and cross-motions afterwards?

UPDATE: It turns out the lawyer taking the deposition is none other than the famed Texas trial lawyer Joe Jamail. Still no word on what, if anything, happened afterwards.

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Washington Supreme Court Scheduled to Announce Same-Sex Marriage Decision Tomorrow:

The Seattle Post-Intelligencer reports that "[t]he state Supreme Court is set to announce tomorrow whether Washington will become the second state to let same-sex couples marry." The decision should be up by 8 am here. Thanks to reader Jon Bashford for the pointer.

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"Defending Life" -- a Bleg:

The Pennsylvania Bill of Rights (1776) begins with the following (emphasis added):

That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.

Many other state constitutions echo this "defending life" language, and some state courts plausibly read it as securing a constitutionally protected right of self-defense. (We can set aside for now the debate about the right to bear arms in self-defense; for now I'm interested in the rhetoric about self-defense more generally.) Interestingly, this is a departure from the Virginia Declaration of Rights (1776), which says,

That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

Can anyone point me to some sources that discuss what function the "defending life" language was understood as serving at the time -- or for that matter in the succeeding decades -- and why it might have been added?

While I realize bleggars can't be choosers, I'd prefer some relatively concrete evidence, rather than just general speculation about what the Framers must have thought during the Revolutionary War. Many thanks!

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Pigs, Horses, Religion, and Morality:

Geof Stone, who argues that it's improper for a government official to make a decision based on "his own, sectarian religious belief" (see this post for more), gives this example, which I've also seen others give (emphasis added):

[I]n what sense is it “ethical” for Mr. Bush -– acting as President of the United States -- to place his own sectarian, religious belief [about stem cell research] above the convictions of a majority of the American people and a substantial majority of both the House of Representatives and the Senate? In my judgment, this is no different from the President vetoing a law providing a subsidy to pork producers because eating pork offends his religious faith. Such a veto is an unethical and illegitimate usurpation of state authority designed to impose on all of society a particular religious faith.

But, as I noted last year, it turns out that many laws do ban the eating of various animal products, for reasons quite unrelated to "objective" matters such as human health. California voters in 1998, for instance, banned the sale of horsemeat for human consumption. Georgia law bans the sale of dogmeat for human consumption; I'm sure some other states have similar laws.

I have no reason to think that this law was motivated by religion. Rather, I suspect that most voters supported it because of their gut feel that eating horse or dog is disgusting or, in the words of one critic of eating horsemeat, "morally perverse," "a perversion of the human-animal bond." Many of the laws' backers probably didn't even think that horses had a right to life, or a right not to be eaten; the law banned only the sale of horsemeat for human consumption -- the sale of horsemeat for animal consumption is, to my knowledge, still allowed.

Both religiously motivated pork bans and the gut-feel-motivated horsemeat bans burden people's liberty to eat what they please. (Geof Stone's exact hypo, which is the denial of a subsidy to pork producers, doesn't even suffer from that problem, but I'll happily use the more troubling case of a total pork sales ban.) Both of them do so because of the unproven and unprovable views of the majority.

One can say that both are permissible, on democratic grounds. One can say that both are impermissible, on libertarian grounds. But it doesn't seem to me sound to say that (1) the pork (religiously motivated) ban is impermissible, (2) the horsemeat (disgust-motivated) ban is permissible, and (3) if it turned out that in some state the supporters of the horsemeat ban were actually motivated by a belief that it was sacrilegious to eat horse, then the horsemeat ban would become impermissible. In any event, supporters of such a distinction have some explaining to do, it seems to me.

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Dealing With Political Disagreements:

Psychologist/Blogger Helen Smith offers some useful advice on dealing with political disagreements among friends, family members and acquiantances:

So what can you do to get along when you vacation with loved ones or friends whose world views are different than yours? First, accept that everyone has differing opinions and that this might be a good thing . . . Second, if there are topics that hit a nerve such as discussing the religious right in derogatory terms, change the subject if possible to something more pleasant that you can both agree on or change the topic all together to the weather, sports or something neutral. Thirdly, if you choose to engage in a discussion, realize that it can get heated--perhaps you enjoy this type of verbal engagement--go for it, but do not let it get out of hand and realize that you will probably not change the person's mind.

My take:

I like a good (verbal) fight over politics and ideology. But it's also important to respect the feelings of people who dislike political arguments and prefer to avoid them. Much more difficult to deal with are the all-too-common obnoxious types who forcefully and aggressively express their own views, but get angry if anyone takes issue with them. Perhaps it's best to just ignore those who like to dish it out but can't take it. But it's a hard commitment to stick to....

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Tickling Children:

As any parent knows, tickling your small child gets you a huge positive reaction -- uproarious laughter, huge smiles, and the like. Likewise with raspberries (pressing your face in the baby's stomach and going "Phhht," as best I can transliterate it).

On the other hand, tickling an adult will also get you uproarious laughter, but the adult will generally not like it. Laughter and smiles are usually a sign of pleasure, but not in this instance. So this makes me wonder: Should we not do it to children (say, from a few months old to a few years old), either? Is there some reason to think small children really do like it even though older children and adults don't?

I assume that if we conclude children don't like it, we shouldn't do it, since tickling and raspberries don't fall in the immunizations/medicine/making-them-clean-up-their-rooms category of "we do it because it's good for them, regardless of whether they enjoy it." Or is there some conceptual difficulty with even asking "does a one-year-old like it, despite his laughing and smiling?"

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Professor Scot Powe on Judge Posner Quoting Professor Bruce Murphy on Justice Douglas:

Scot Powe, a constitutional law professor I much respect, who knows a good deal about Justice Douglas -- he clerked for him, and he wrote a history of the Warren Court -- writes:

The problem is that Posner believed everything Murphy wrote when in fact much was in error (as my review in Reviews in American History showed).

Here are some more specific criticisms of Murphy's book, from Powe's review, which is also a good and short read (paragraph break added):

Murphy believes [Douglas's claim of having been striken with polio as a child] was a fabrication. Yet most of Douglas’s symptoms and treatment were consistent with polio. We will never know what Douglas had, but Murphy has not shown what he claims, that Douglas knew he did not have it.

Similarly, Douglas was always a top student and all biographies note he was number two in his Columbia Law School class, but this is not quite accurate. He was near the top of his Columbia class, but not number two. Again, however, Murphy assumes Douglas is lying, although his evidence does not show that Douglas did not simply make an honest error. [endnote: The records of Columbia’s class of 1925 are still not public.] Furthermore Douglas had been terribly sick at two, and doctors thought he would die; he worked all kinds of jobs for the money that his family always needed; he was a whiz at school and never could devote himself full-time to his studies. And not many people would survive, as he did in 1949, a horse rolling over them on a mountain side, breaking twenty-three ribs plus collapsing a lung, much less return as quickly as possible to the outdoors. If he created myths, the reality did not stray so far from the myth....

Murphy's conclusion is a gratuitous slam at Douglas for being buried at Arlington National Cemetery under false pretenses. Here Murphy stretched the data too far by concluding that Douglas was not a private in the United States Army during World War I because he was merely in the equivalent of the ROTC at Whitman College. But Douglas was, as he claimed, inducted in and honorably discharged from the United States Army and the relevant documents are in both the Library of Congress and the Cravath law firm file on Douglas. Douglas also did not claim, as Murphy implies, that he served in France.

Powe also defends Douglas's protecting the First Amendment rights of Communists, his "cleaning up Wall Street" in the 1930s, and his "prescient environmentalism."

Related Posts (on one page):

  1. Professor Scot Powe on Judge Posner Quoting Professor Bruce Murphy on Justice Douglas:
  2. Judge Posner on Justice Douglas:
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President Bush's Stem Cell Veto and Separation of Chruch and State:

Chicago lawprof Geof Stone criticizes the veto on church-state grounds, saying that it shows "a reckless disregard for the fundamental American aspiration to keep church and state separate." Paul Horwitz (PrawfsBlawg) responds. Larry Solum (Legal Theory) passes along his own view.

My view is very close to Paul Horwitz's, for the reasons I expressed in my 2005 debate with Geof Stone on the subject of religious reasons for government decisionmaking:

Geof Stone makes a forceful argument, but it seems to me that there are two quite different strands to it — strands that need to be separated.

At times, Geof is asking whether a "law [is] based on faith," whether a "law [is] based solely on sectarian religious belief," whether it "serves no legitimate public purpose." This category, he suggests, does not include laws that are "perfectly sensible law without regard to anyone's religious faith" or that have "a religious as well as a secular purpose," which would include a "moral-based reason" as well a "faith-based reason." Note that so far we're talking about the law. [EV: I should add here that the ban on stem-cell research funding can have obvious "moral-based" justifications, albeit ones I disagree with, just as a ban on experimentation on animals or a ban on killing endangered species would have "moral-based" justifications, even if some may disagree with them.]

At other times, though, he asks whether a person (including a political leader) backs a law "based entirely on his own sectarian religious beliefs," whether a person is "imposing [his] faith on others." That is a very different inquiry, an inquiry into the subjective motivations of a law's backers rather than whether the law in fact serves some public or moral purpose. For instance, I take it that all of us would agree that abolition of slavery, prohibition of alcohol, opposition to war, or support for civil rights are laws that have "moral-based reason[s]" as well as potentially "faith-based reason[s]." But all these laws were backed by some people — perhaps many people — for reasons that flowed from their own sectarian religious beliefs. (I chose these movements precisely because so many of their backers were deeply religious.)

In fact, I suspect that for many deeply religious people, all their moral beliefs are faith-based, because they believe morality only comes from God. I'd wager that many religious pacifists, abolitionists, and others would take precisely this view. Yet I think that we surely shouldn't condemn either their cause or them for this.

Your moral views may come from your understanding of human dignity; another's view may come from utilitarianism; another's may come from libertarianism; another's may come from fundamentalist Christianity. None of these bases are somehow provable; none is constitutionally superior to the others. (In fact, many of the arguments for religious freedom itself came from the "sectarian religious beliefs" of deeply religious people; I suspect that they supported religious freedom for religious reasons since religious reasons were the only moral reasons that counted to them.)

Any other approach is itself deeply discriminatory — it suggests that atheists, agnostics, utilitarians, and the like are entitled to enact their moral views into law (because they don't rest on religion) while devout Catholics, Protestants, Jews, Muslims, and others are forbidden from enacting their moral views into law (because they do rest on religion). That's not mandated by the Constitution, it's not in my view compatible with our national traditions, and it's not right.

Hence my claim: It is certainly quite proper to ask whether a law is morally or constitutionally sound. A law banning the eating of pork may be quite unsound. Likewise, laws banning — or allowing — abortion, infanticide, the destruction of embryos or chimpanzees for medical purposes, or the killing of members of endangered species might be sound or unsound.

But it shouldn't matter whether someone supports them because of his belief that laws should turn on the greatest good for the greatest number, his belief that we are all sons and daughters of Gaea and must thus protect our environment, or his belief in the Bible. For most, quite possibly all, of us, our moral beliefs ultimately rest on unproven and unprovable moral axioms. The Constitution doesn't consign those whose moral beliefs rest on unproven and unprovable religious axioms to a lesser citizenship, under which they may not enact their views into law, while others with the same views that rest on unproven and unprovable secular axioms are free to do so.

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Expert Testimony in California:

It's come to my attention that a very important case, In re Lockheed Litigation Cases, is apparently pending in California. California is a "Frye" state, which means that it applies a general acceptance test to the admissibility of expert testimony. However, California precedent suggests that the state version of Frye (Kelly-Frye) has a very narrow scope, and that it does not, for example, apply to expert testimony in toxic tort or products liability cases. The question before the California Supreme Court is whether California Evidence Rule 801 provides an alternative test for the admissibility of expert testimony in civil cases, focusing on the reasonableness of the expert testimony. Near as I can tell, briefing finished last Summer. I don't know whether the case has been orally argued yet.

This is a very important case! By far the largest jurisdiction in the U.S. is going to decide whether to reqire its trial judges to serve as gatekeepers, a la Daubert, or adopt a "let it all in philosophy" for cases not covered by the Frye rule. Yet, the case seems to have slipped under the radar screen; it has received little publicity or attention, even from national plaintiff and defense groups that have a huge stake in the matter. (I spoke to someone earlier today from one of these groups, and he wasn't even aware of the case.)

Any California lawyers out there who can shed more light on why this case hasn't received more attention, and on its status?

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Be Careful Trusting Data, Even in Nature:

I found Ben Barres' Nature article, "Does Gender Matter?", to be very interesting; and one thing that quite struck me was this assertion: "[D]espite all the social forces that hold women back from an early age, one-third of the winners of the elite Putnam Math Competition last year were women." Perhaps I overestimated the importance of this assertion because I'm actually familiar with the Putnam Competition (I never participated, and I'm not nearly good enough at math to get anywhere near top scores on it, but I occasionally look at some old problems and enjoy taking a whack at them). Still, the competition seems to test creative math ability and not just rote application of rules, and to test high-end ability: The "does gender matter?" debate in science faculty hiring, after all, has to do with claimed differences between the very far right tails of the male and female math ability bell curves, not between the average man and the average woman or even the average male and female college students.

So, I thought, if one-third of the winners — basically, of the top 15 or so finishers — of the competition are women, despite the social pressures that I'm quite sure would drive down the number of successful women, that really is a powerful data point. (Recall that the question generally isn't whether the disproportionate representation of men and women in high-end science jobs is due entirely to biology, but only whether it's due partly to biology.)

Unfortunately, when I looked more closely at this data point, it turned out to be in error. Here's what I submitted as a letter to the editors of Nature:

Dear Editors:

I read with interest Ben Barres' "Does gender matter?" (13 July 2006), and particularly the statement that "one-third of the winners of the elite Putnam Math Competition last year were women." This struck me as a particularly telling piece of evidence: If indeed so many women performed so well in such a respected competition, this would indeed undermine assertions of substantial biological gender differences in the higher levels of mathematical ability.

Unfortunately, on further research, it seems that this statement is mistaken. Last year's (2005's) top 16 finishers seem to have included only one woman (UNL 2005). Prof. Barres was likely referring to 2004, but even in that year the top 15 included only four women (Hopkins 2005; UNL 2004). In 2003, two of the top 16 were women (UNL 2003; Princeton 2006). In 2002 and 2001, the number was one of 15. Perhaps I'm mistaken, despite my attempts to verify the ambiguous names; but this is the data as best I can determine it.

Prof. Barres' other claims in the article may well be accurate; the data I cite above certainly don't prove that the reason for the low numbers is even partly biological sex differences. On the other hand, I thought it might be helpful to let readers know that one particular piece of evidence mentioned in the article seems mistaken.

Eugene Volokh
Professor
UCLA School of Law

Sources: Hopkins, Nancy, 2005. "Academic Responsibility and Gender Bias," XVII MIT Faculty Newsletter No. 4, pp. 1, 24.
UNL Web site, 2005. "The William Lowell Putnam Mathematical Competition, Announcement of Winners ...."
     2004. http://www.unl.edu/amc/a-activities/a7-problems/putnam/-html/putnam2004results.html.
     2003. http://www.unl.edu/amc/a-activities/a7-problems/putnam/-html/putnam2003results.html.
     2002. http://www.unl.edu/amc/a-activities/a7-problems/putnam/-html/putnam2002results.html.
     2001. http://www.unl.edu/amc/a-activities/a7-problems/putnam/-html/putnam2001results.html.
Princeton, 2006. Telephone Conversation with Mathematics Department at Princeton University, July 19, 2006.

Unfortunately, Nature has decided not to publish the letter; here's their response:

Dear Professor Volokh

Thank you for your letter. We have checked into the figures and it seems that in 2004 four of the fifteen top ranked Putnam winners were women (one other might have been, we can't tell). Although we agree that it is unfortunate that we did not include the year in the relevant sentence in the commentary, we feel that 4 (probably, but maybe 5) out of 15 is sufficiently close to one-third not to publish a correction on this occasion.

Thank you again for writing to us.

Perhaps it's me, but it seems to me that the response is missing my point — not only was the number 5 likely wrong (as Prof. Nancy Hopkins' article agrees), and not only was the year wrong (not just omitted, but wrong, since the story unambiguously says "last year"), but the data that Prof. Barres cites is highly unrepresentative, and its unrepresentativeness is hidden by the omission of the year.

If you see "last year the results were X," that might suggest to you that the results in previous years were similar but only the last year was mentioned because it's the closest data point; or it might suggest to you that in any event the trend is towards last year's X. But if you see "in 2004, the results were X," you'd be much likelier to quickly recognize that maybe the 2005 results were different. And given how different the results are — in reverse chronological order, they seem to be 1, 4, 2, 1, 1 — is it quite right to solely cite the 4 (even setting aside the dispute about whether it's 4 or 5); to suggest that it's the most recent result; and to omit the four data points, one of them a more recent one, that would suggest a very different situation?

Two notes. First, I corresponded with Prof. Barres when trying to track all this down, and he was quite gracious about it. I'm sure his error was entirely innocent; I just wish the Nature editors were willing to correct it. Second, I should stress that the aggregate data does not prove that biology is the reason for disparity; cultural factors may well account for the entire gulf even so. My point is simply that one of the reasons to believe that the biological factors are absent or slight — much closer to par representation of men and women on the Putnam exam — appears not to be correct.

And, more broadly, as the title suggests, don't trust everything you read — even relatively easily verifiable data in a respect journal such as Nature.

46 Comments
Gender and Science:

A reader kindly pointed me to a couple of interesting items on a matter related to something we touched on a few weeks ago: whether there are material biological cognitive factors that lead men and women to be disproportionately represented in certain fields. (Note that the question isn't whether these are the only factors, or where any particular woman or man falls within the distribution of certain cognitive skills.) The posts on this blog were about law, where matters may be quite different from science. Still, the debate about gender and science is interesting in its own right, and likely overlaps in some measure (though of course not entirely, given that much of the scientific debate is about mathematical aptitude, something that lawyers of both genders are infamous for not having) with similar debates about law.

The reader's two sources were:

1. Edge.org has a debate between Harvard psychology professors Steven Pinker and Elizabeth Spelke.

2. Nature has an article by Stanford neurobiology Prof. Ben Barres, taking the view (as best I can tell) that there are no such material biological differences, and that the entirety of the disparity between men and women in the sciences comes from societal factors. (This is not completely clear, since his introduction frames the issue as being between the "Larry Summers Hypothesis" "that women are not advancing because of innate inability rather than because of bias or other factors," and the rival hypothesis that "women are not advancing because of discrimination." But since Larry Summers' point was that part of the reason for the disparate representation of women is biological cognitive differences, I take Barres' rejection of the "Larry Summers Hypothesis," and specific criticism of Summers, to mean that he's saying that biological differences are no part or perhaps next to no part of the matter.)

I'll have a bit to say shortly about details in the Barres source, but for now I just wanted to post the links.

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Senator Specter's Op-Ed: Senator Specter has an op-ed in the Washington Post in which he responds to critics of his proposed legislation concerning the NSA domestic surveillance program. Here is an excerpt:
  The president has insisted that he was acting lawfully within his constitutional responsibilities. On its face, the program seems contrary to the plain text of the 1978 Foreign Intelligence Surveillance Act (FISA), which regulates domestic national security wiretapping. The president argues, however, that his inherent constitutional powers supersede the statute. Without knowing the exact contours of the program, it's impossible to say whether he is right or wrong. But three federal appeals court decisions suggest the president may be right.
  The integrity of our nation’s adherence to the rule of law requires an answer to the question of whether this program is legal. The protection of our nation’s security and individual rights requires a modification of the program if it is not lawful as currently fashioned. The challenge, which I have been trying to meet legislatively, is to structure a procedure under which the courts can adjudicate the lawfulness of this highly sensitive program while maintaining the secrecy the president contends is so important.
  My bill, the result of months of negotiation with the administration, accomplishes this goal by authorizing consideration of the program by the Foreign Intelligence Surveillance Court (FISC), the court created under FISA to consider warrant applications. The FISC has the expertise to handle this question. Its closed proceedings and unblemished record for not leaking would make full consideration both possible and secure. Not only would the bill permit a determination of the program’s legality but if it were found unlawful in whole or in part, a framework would exist for modifying the program.
  Critics complain that the bill acknowledges the president's inherent Article II power and does not insist on FISA's being the exclusive procedure for the authorization of wiretapping. They are wrong. The president's constitutional power either exists or does not exist, no matter what any statute may say. If the appellate court precedents cited above are correct, FISA is not the exclusive procedure. If the president’s assertion of inherent executive authority meets the Fourth Amendment’s "reasonableness" test, it provides an alternative legal basis for surveillance, however FISA may purport to limit presidential power. The bill does not accede to the president's claims of inherent presidential power; that is for the courts either to affirm or reject. It merely acknowledges them, to whatever extent they may exist.
  I have a tremendous amount of respect for Senator Specter. I think his efforts to hammer out a compromise over the NSA program are very admirable. I don't have a clear view of whether his legislation is a good idea or a bad idea, but I'm certainly open to it. (My own take is that it's hard to take a position on Specter's bill without knowing the details of the classified program, which of course we don't know, but that's a topic for another post.) At the same time, I believe Senator Specter is making two errors here that are important to understand.

  First, Senator Specter appears to discuss the lawfulness of a program as if that were the same as the program's constitutionality. The two are different, however, as the legal dispute over the NSA wiretapping program has focused mostly on whether it violates statutory Foreign Intelligence Surveillance Act (FISA). Specter's bill would change the Foreign Intelligence Surveillance Act to remove the basis for believing the program violates FISA, and would then ask the FISA court to determine only if the program violates the Constitution. As a result, Specter's legislation would not answer whether the NSA program is lawful; rather, it would answer whether the NSA program could be made lawful. That would settle one part of the debate, but would preclude resolution of the other part.

  Second, I think Senator Specter is mixing two questions when he writes that "[t]he president's constitutional power either exists or does not exist, no matter what any statute may say." There are actually two distinct questions here: The president's constitutional power to act without Congress's explicit approval, and the president’s constitutional power to act in the face of Congress's explicit disapproval. The two are not the same.

  To see the importance of the difference, consider an example from wiretapping law. In 1968, Congress passed the federal Wiretap Act, which for the first time permitted federal agents to use bugging equipment to monitor private homes pursuant to a court order. But Congress's legislation left out something important: The legislation said nothing about the authority of investigators to covertly enter the home to install the bug. As a result, Courts had to decide whether Congress had implicitly authorized investigators to break into homes covertly to install the bug pursuant to a court order, or absent that, whether the Executive Branch had "inherent authority" to break into the home to install the bug.

  Here is how the Sixth Circuit presented the latter question:
Given the 1968 statute which permits eavesdropping, is it "reasonable" under the Fourth Amendment for officers to break and enter someone's house or office in order to execute an eavesdrop order? Do law enforcement agents have an independent or inherent authority sanctioned by the Fourth Amendment to break and enter to execute a search warrant, a power that may be extended by analogy to the execution of an eavesdropping warrant?
United States v. Finazzo, 583 F.2d 837 (6th Cir. 1978) (Merritt, J.). The Sixth Circuit concluded that the Executive Branch did not have this inherent authority and therefore could not act without Congress's approval:
In the absence of explicit statutory authorization, we are unwilling to create a wholly new exception to general search and seizure principles which have held for centuries that such conduct is illegal.
Id. The Supreme Court decided the case a year later, and ruled that Congress had implicitly authorized the covert entries as a matter of statutory law. See Dalia v. United States, 441 U.S. 238 (1979). But the key here is that when the Sixth Circuit was making repeated references to the "inherent authority" of the Executive Branch, that clearly meant "authority to act absent Congressional approval," not "authority to act in the face of a Congressional prohibition." The answer to the question of whether the searches were authorized hinged on whether Congress had acted; "inherent authority" was ultimately second to the question of Congressional action. Thus, in Dalia, the fact that the Supreme Court concluded that Congress had authorized the covert entry resolved the matter of Executive Authority.

  Coming back to Senator Specter’s claim that "[t]he president’s constitutional power either exists or does not exist, no matter what any statute may say," my sense is that he seems to be slipping past the key question. Of course, Congress cannot trump the President's "inherent authority" when that inherent authority is used to refer to the authority to act in the face of Congressional prohibition. And indeed, there are some cases in which courts have referred to inherent authority in this way. However, Congress can trump the President's "inherent authority" when that inherent authority is only the inherent authority to act absent Congressional regulation. My sense is that most legal analysts interpret the court of appeals cases Specter cites to refer to the latter kind of inherent authority rather than the former kind.

  Now, of course, none of this touches on the merits of Senator Specter's bill. But to the extent that his bill reflects the same assumptions in the Senator's op-ed, I think it's helpful to understand why Senator Specter's understanding is different from that of most legal analysts in this area.

  That's my sense of it, at least. If I'm mistaken, I look forward to your comments to help set the record straight. As always, civil and respectful comments only.

  (cross-posted at OrinKerr.com)
95 Comments
Kerry to Solve Middle East War.--

Scrappleface reports that John Kerry is going to end the latest Middle East war, which wouldn't have happened if Kerry had been elected President:

Bush Sends Kerry to Solve Israel-Hezbollah War

After learning that the battle between Israel and Hezbollah could have been prevented if Sen. John Kerry, D-MA, had been the U.S. Commander in Chief, President George Bush today dispatched Sen. Kerry to the war-torn region to “get this thing solved.”

Sen. Kerry, a career Vietnam veteran, who told a political gathering in Detroit yesterday that “we must destroy Hezbollah” and that the president “has been absent on diplomacy“, said he would bring his own brand of “diplomatic destruction” to the terrorist group.

“Senator Kerry’s presence and intellect alone should bring a swift end to hostilities,” said Mr. Bush, who admitted that he, and the State Department, had “kind of put the Middle East thing on the back burner” while following televised coverage of the Tour de France bicycle race.

In related news, as hostilities along the Lebanon border approached the two-week mark, the crisis was officially added to the list of “bad things that would not have happened during a John Kerry presidency.”

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Long Interview with the head of Hezbollah.--

At Daily Kos is a translation of a very long Al Jazeera interview with the head of Hezbollah, Hasan Nasrallah.

Diarist "PersianCat" comments:

My observation is that this guy clearly underestimated Israel's response and he is now having to justify himself to the Lebanese people. The other major point is that he claims to have mentioned (on several occasions) to Lebanese government officials including the PM his intention to capture IDF soldiers in exchange for Lebanese soldiers.

Excerpts from the Interview:

Bin-Jiddu] You told them [Lebanese government officials] that you would kidnap Israeli soldiers?

[Nasrallah] I used to tell them that the prisoners' issue, which we must solve, can only be solved through the kidnapping of Israeli soldiers.

[Bin-Jiddu]Clearly?

[Nasrallah] Clearly. Nobody told me: no, you are not allowed to kidnap Israeli soldiers. I was not waiting for such a thing. Even if they told me no you are not allowed [nothing would change]. I am not being defensive. I said that we would kidnap Israeli soldiers in meetings with some of the key political leaders in the country. I do not want to mention names. When the time comes for accountability I will mention names. They asked whether this would resolve the prisoners issue if this happens. My answer was that it was logical for such an act to solve the prisoners' issue. I assure you that our assessment was not wrong. I am not being stubborn. In the entire world, tell me about any state, any army, or any war that was waged because some people kidnapped two soldiers, or even took hostages, not military soldiers. Tell me about a war that was waged against a state because of two soldiers. This has never happened in history. Nor has Israel done it anytime before. However, what is happening today is not a reaction to the kidnapping of two soldiers. I repeat that this is an international decision and an Arab cover. It is a decision that has to do with...[changes thought]. I stress to you that had we not captured two soldiers in July, which could have happened in August, September, or some other time, the Israelis would come to this battle and would create for it any pretext and any excuse. The issue of disarming and finishing the resistance could not be achieved domestically, regionally, nor at the negotiating table. The Americans were well aware that this issue cannot be addressed domestically. Therefore, the Lebanese were told to step back and to let Israel terminate and disarm Hezbollah. But a cover was needed. So they provided an international and an Arab cover. This is what the issue is about. Finally, I will tell you how any resistance in the world operates. If I want to kidnap or capture two Israeli soldiers, the political leadership would make the decision and hand it to me, but even my brothers [in the leadership] should not know that this would happen at such a time and such a place. If 60 to 70 people know such details, would a capt uring operation be successful? No, no such operation would be successful, let alone when informing a government of 24 ministers, three key leaders, political forces, and political blocs. On the table of dialogue, we hold discussions, and only one hour later the minutes of the sessions become available to [foreign] embassies. So do you expect me to tell the world I am going to capture [soldiers]?

There is also an interesting story in the comments:

I really feel sorry for the average Lebanese citizen. I saw an interview with Anthony Bourdain, the hard-scrabble NYC chef who was filming in Beirut. He talked about how he was standing in front of a hotel with three Lebanese friends when they saw a car with Hezbollah militants in it, shooting off their weapons in celebration of the kidnapped Israel soldiers right after it happened. He described the looks on his friend's faces as tragic, as in "oh no, here we go again," and how they knew it was extremely bad news for Lebanon.

12 Comments

Monday, July 24, 2006

Israel Hate Mail:

I'm on some list, along with other "media sites," that some anti-Israel crackpots send emails to. I usually get one or two a day. Today's, from the address juan_xxxxxxx324@excite.com, was a particularly lovely example:

The people of Israel have no soul, no moral core, no humanity, no human decency. Israel is a blight on the face of the earth. Israeli history is the record of human inhumanity. There is no atrocity an Israeli will not commit. There is no atrocity an Israeli apologist will not excuse. The story of Zionism is the story of crimes against humanity, war crimes, atrocities against civilians, dead children, dead women, dead civilians. Israel does not deserve to exist. Israel should be obliterated and its people put in the same concentration camps in which they keep their victims, the Palestinians, the Lebanonese, the innocent. Israel is using chemical weapons, cluster grenades, and other weapons of terror. Every dead Israeli is one less terrorist scum in the world.

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A Reasoned Criticism of Israel's Lebanon Strategy:

In Ha'aretz, Professor Yagil Levy criticizes the Israeli government for hasty decisionmaking, too much deference to the military, and for having both unrealistic and unclear goals. I think he's likely mistaken on a variety of grounds, and I don't know if he even has his facts right (maybe Israel had a contingency plan ready to go in case of another attack by Hezbollah, and the reaction only seemed hasty), but it's food for thought.

I don't want to confuse different issues: just because Israel's actions to wipe out Hezbollah are perfectly legitimate doesn't mean (a) they are wise; or (b) they were well thought out, even if they turn out to be wise. Lord knows Israeli governments have done many things that I think are morally justified (e.g., allow the resettlement of Jews in Hebron, to reestablish an ancient community wiped out in a massacre by local Arabs in 1929), but were exceedingly unwise.

UPDATE: One reason I wonder about the judgment of Israeli leaders in the case is I get the strong sense that the military grossly exaggerated how effective air power would be against Hezbollah. Well before the current battle erupted, I had read the the IDF was begging the government to allow it to "wipe out" Hezbollah fortifications and missle launchers near the border. The implication was that the IDF believed, or at least claimed, this could be done rather quickly and painlessly. In the event, it looks like wiping out Hezbollah's military threat, if it's politically feasible given international pressures, will cost dozens of Israeli civilian and military casualties, and extensive damage to Israeli cities and its economy. This may very well be worth it [I think it is, as, more importantly, from what I've read, do most Israelis], but one would like more confidence that Olmert & Co. were actually cognizant of these costs from the beginning.

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African Genocide and Gun Bans:

That's the topic of my new article in America's First Freedom (one of the magazines for NRA members). Using information gathered by the International Crisis Group and Sudan Update, the article details the Khartoum government's confiscation of guns from the Darfuris, and arming of the Arab janjaweed. The article also reports on the four Darfuri girls from a refugee camp who have been arrested for murder because they stabbed a soldier who was trying to rape them. Finally, the article notes how successfully the United Nations is promoting Sudan-style gun control all over sub-Saharan Africa.

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Amici Briefs in the Free Speech / Trademark Injunction Case:

I'm delighted to say that Stanford law professor — and intellectual property expert — Mark Lemley was good enough to submit a friend-of-the-court brief opposing the injunction against "any comments that could be construed as to disparage [a trademark]", in our The Freecycle Network, Inc. v. Oey case. The brief was written on behalf of 38 intellectual property law professors (including Mark himself), plus the Electronic Frontier Foundation. The brief reasoned that "The District Court’s Opinion Wrongly Concludes That Merely Talking About a Trademark Can Infringe Trademark Rights," and that "The District Court’s Order Interferes With the Speech Rights of Defendants, Amici, the Press, and Others."

My coblogger David Post and Los Angeles appellate lawyer Bruce Adelstein were also good enough to submit another friend-of-the-court brief, on behalf of InstaPundit (Glenn Reynolds), Wikipedia cofounder Jimmy Wales, author and professor Larry Lessig, cyberjournalist Declan McCullagh, Trademark Law blog author and trademark lawyer Martin Schwimmer, and law professors Lauren Gelman, Jamie Boyle, Jonathan Zittrain, and David Post himself. Here's what seems to me the heart of his brief (which is shorter and in some ways less technical than Mark's, and thus more easily subject to excerpting):

The district court concluded that, because plaintiff had “established a recognizable logo and name . . . through over three years of use,” and because defendant “recognized [plaintiff’s] legitimate trademark rights” in the past, any “comments that could be construed as to disparage upon the possible trademark” rights associated with that logo and name would likely constitute an actionable infringement of those rights. The breadth of this principle, and its potential for silencing constitutionally-protected speech on and off the Internet, is quite breath-taking.

For instance, the law professors among us might opine, in a media interview, an op-ed article, or a classroom discussion about the principles of trademark “genericide,” that some registered U.S. trademark -– “Kleenex™,” perhaps, or “Xerox™,” or “Starbucks™,” or “Google™,” or “Aqua-Lung™,” or “Hot Wheels™,” or “Miracle Whip™,” etc. -– is not valid because of its generic use; one of the public interest advocacy groups among us might make the same (or the contrary) argument in a press release published on its web site; one of the journalists among us might take up the argument (for or against) in a news analysis or opinion column; so might a commenter or editor at an online encyclopedia, or at one of the many thousands of blogs and websites across the Internet at which questions of trademark law and policy are discussed.

Our comments might look very much like the defendant’s in this case: “In my opinion, the word ‘xerox’ is generic and therefore in the public domain. The best way to keep ‘xerox’ (and the terms ‘xeroxed,’ ‘xeroxing,’ etc.) in the public domain is for as many people and groups as possible to continue to use the terms generically.”

It might even be the case that we had changed our minds about this very question in the past -– surely something we have all done many times, and which is both a part of, and in many ways the point of, the public debate on these questions.

Under the district court’s reasoning, our comments alone could be “construed as disparaging the possible trademark” associated with the “Xerox” name and subject us to liability for infringing the “Xerox” trademark. And this would be so even though we offered no goods or services in competition with Xerox, Inc., nor confused or misled any consumers about the source or origin of any goods or services.

And under Plaintiff’s reasoning, each such statement -– even in a law review article, a newspaper column, or a web site -– would constitute commercial speech, simply because it “draw[s] ‘attention to [Xerox’s services]’ and directly impacts [Xerox’s] ability to attract new [users], and retain current [users] and sponsors by harming [Xerox]’s commercial reputation via its Marks,” and “because it relates to [Xerox’s] Marks and the public’s perception of [Xerox].”

We cannot believe that the First Amendment tolerates such a restriction on the rights of academics, advocates, or public-minded citizens to express their opinions about the validity vel non of specific trademark claims. Trademark rights, of course, are public rights; they are granted by the people through our duly authorized representatives in the legislatures, courts, and administrative offices. Unfettered public discussion about those rights -– about how law is made and applied, in the abstract and in the particular, and about whether it is or is not being made and applied (in the speaker’s opinion) correctly -– lies at the very heart of the First Amendment freedom of speech. It is difficult to imagine an Order more at odds with this principle than the one issued by the district court in this case, and we respectfully urge you to overturn it.

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How a Speech-Restrictive Injunction Can Be Used Against Organizations Who Aren't Even Parties:

I noted last week that the Ninth Circuit had stayed the injunction against "any comments that could be construed as to disparage [a trademark]" pending appeal. I didn't have time then to note that Mayer Brown Rowe & Maw (the firm with which I'm working as a part-part-part-time Academic Affiliate) had filed an interesting supplemental brief supporting the stay petition.

It turns out that in 2005 Grist Magazine published an article about The Freecycle Network, and put up a brief summary on its accompanying blog. Tim Oey, the defendant in the Freecycle Network case, then posted some comments attached to that blog post. After the injunction was issued, The Freecycle Network's lawyers sent Grist Magazine a letter stating, "In accordance with the Order [i.e., the injunction], we request that you remove Tim Oey's posting located at [address]. In light of the Court's Order, we request that you remove the posting by no latter thaqn Friday, July 14, 2006."

Grist said no, pointing out (among other things) that "this Arizona order does not apply to Grist, which simply exercised its First Amendment rights in discussing, and facilitating discussions about, issues of public concern relating to the environment. If it were applied to Grist, which was not a party to that Arizona proceeding and furthermore was not afforded any prior notice of the motion, we believe it would be in violation of Grist’s rights to free speech and to due process under the First and Fifth Amendments." (The quotes are all from attachments to the supplemental brief, which is a public document.)

And then Grist's lawyers learned of the appeal from the initial post on this blog about the case, and were good enough to pass along the correspondence to Mayer. The result was the supplemental brief, which used the TFN-Grist exchange to "underscore the speech-suppressing aspects of the injunction." We don't know to what extent the supplemental brief influenced the decision to grant the stay, but we were certainly glad to have this extra evidence supporting our criticisms of the injunction.

1 Comments
THe Libertarian Split over the War II - Historical Roots:

I am happy that my post on the libertarian divisions over the Iraq War has generated so much debate both here at VC and elsewhere in the blogosphere (e.g. here and here), among other sites too numerous to list).

In this post, I want to focus on the fact that the intralibertarian debate over war and foreign policy is not a new one, and actually dates back to the Cold War era. During the 1960s and 70s, the formative years of modern libertarianism, some prominent libertarians, including F.A. Hayek and especially Ayn Rand generally supported US policy in the Cold War, at least to the extent of favoring a hard line against the Soviet Union and its allies. If I recall correctly, Milton Friedman was also generally hawkish during this period, as were most of the other prominent Chicago school libertarians. These Cold War libertarians did not support every aspect of US policy (e.g. - all of them opposed the draft), but they did favor a strong anticommunist line, including the occasional use of US military power.

Other libertarians, led by Murray Rothbard and the other founders of the Libertarian Party favored a dovish/isolationist foreign policy, and in some cases endorsed the New Left view that the Cold War was primarily the fault of the US rather than the communist bloc. In his 1978 book, For a New Liberty, Rothbard argued that the Soviet were primarily defensive in orientation and would not have tangled with the US but for American aggression and bellicosity. In 1969, Young Americans for Freedom, the most prominent right of center student group of the era splintered as a result of conflicts between pro-Vietnam War conservatives and anti-War libertarians.

What can be learned from this history? Does it seem to track the absolutist vs. maximizing and immigrant/Jewish vs. gentile/native-born hypotheses I advanced in my last post (linked below)?

I think it provides some support for both, but the second more than the first. To take the ethnic theory first, it is obvious that Hayek and Rand were both immigrants from authoritarian or totalitarian societies (fascist Austria and the USSR) and that these experiences had a powerful impact on their political views and may have led them to support the exertion of US power against totalitarianism abroad. Many of the other prominent Chicago School scholars of that era were also of either Jewish or immigrant origin.Murray Rothbard, by contrast was native-born and, though of Jewish background, he and his family were alienated from their ethnic roots because his parents were part of what he himself called "a communist culture" (see link above). Late in life, Rothbard even supported the presidential candidacy of the anti-Semitic Pat Buchanan. Rothbard's attitudes were somewhat idiosyncratic (especially his support for Buchanan), but he was one of the main founders of the Libertarian Party and his views on foreign policy were similar to those of most other dovish libertarians of the era. Indeed, Rothbard himself was one of the main intellectual influences on the modern dovish school of libertarianism.

The maximizer vs. absolutist split does not do quite as well. Although Rothbard was clearly an absolutist libertarian, so too were Ayn Rand and her "Objectivist" movement followers. Hayek, Friedman and the Chicago school fall clearly in the maximizer camp (and were in fact denounced by the Rothbardites for supposedly compromising libertarian principles). It may be that the absolutist vs. maximizer theory works better if we exclude Rand and her Objectivists from consideration, since they could be viewed as a special case. But I'm not sure that saving the theory in this way would be analytically justified.

The clearest lesson to be learned from this history is that the intralibertarian debate over foreign policy is not a new one, and that therefore it may be deeply rooted in the nature of the ideology and not just an aberration caused by recent events.

A happier thought is the fact that the existence of a deep internal split over foreign policy did not prevent libertarians from having a significant impact on domestic policy debates during the 70s and 80s, and perhaps this success will be repeated. At the same time, it is far from certain that libertarianism will be able to weather a deep division over the most prominent issue of the day without serious harm to its prospects.

UPDATE: To avoid confusion, I should note that I am NOT saying that it is impossible to be a "maxmizing" libertarian and oppose the Iraq War. It is perfectly possible to do so if you believe that the war undermines libertarian values on net more than it promotes them. My point was simply that a libertarian maximizer is MORE LIKELY to be willing to support the war than a libertarian absolutist.

Related Posts (on one page):

  1. THe Libertarian Split over the War II - Historical Roots:
  2. Libertarianism, the Iraq War, and the Division in the Friedman Household:
49 Comments
We Have Met The Enemy, And He Is Us:

The Sun (U.K.) reports:

Motorists were driven mad when they got stuck in a two-mile rush-hour jam -- caused by council officials doing a traffic survey....

Poole[, Dorset] Borough Council transport boss Steve Tite said: “We were aiming to understand drivers’ problems and reduce traffic congestion.

“It was not possible to give advanced warning as drivers might have taken alternative routes.”Thanks to Reason's Brickbats column for the pointer.

3 Comments
Funeral Picketing:

Jonathan Adler's post about the ACLU's opposing a funeral picketing ban leads me to repost my earlier piece on the subject (for links, see the original in National Review Online):

Fred Phelps has pioneered the charming practice of protesting people's funerals. It began with picketing funerals of gays while carrying signs saying things like "God Hates Fags." It then moved on to picketing funerals of soldiers with signs saying things like "Thank God for 9/11" and "Thank God for Dead Soldiers" (the theory being that God is punishing America for its toleration of homosexuality).

There is a move afoot in some cities and states to ban this practice; most recently, the Minnesota senate and house of representatives have enacted such a law, though some differences in the versions remain to be ironed out. Wisconsin enacted such a law late last month. Are such bans constitutional?

It turns out that the government (a) can ban loud picketing outside funerals, and (b) can probably ban all picketing immediately outside the funeral, but (c) must allow picketing or marching relatively near to funerals. How near is impossible to tell, but picketers can't be required to stay 300 feet or more away; they probably have to be allowed to march past the funeral, and perhaps even to picket, say, 100 or 200 feet away.

1. The government generally may not ban picketing based on its content — for instance, banning anti-gay picketing, anti-military picketing, hostile picketing, or picketing that uses pejoratives such as "fag." Thus, if the government wants to ban critical demonstrations outside funeral homes, it also has to ban demonstrations of support. See Carey v. Brown (1980).

23 Comments
Three Cheers for Mr. Cope:

The AP reports:

Two victims of a knife-wielding grocery store employee remained hospitalized Saturday after the man attacked eight co-workers and was finally stopped by a witness who pulled a gun, authorities said....

Elartrice Ingram, 21, was charged with nine counts of attempted first-degree murder, police said....

Ingram, chasing one victim into the store's parking lot, was subdued by Chris Cope, manager of a financial services office in the same small shopping center, Memphis Police Sgt. Vince Higgins said.

Cope said he grabbed a 9mm semiautomatic pistol from his pickup truck when he saw the attacker chasing the victim "like something in a serial killer movie."

"When he turned around and saw my pistol, he threw the knife away, put his hands up and got on the ground," Cope told The Associated Press. "He saw my gun and that was pretty much it." ...

While I'm at it, and since a tangential search came up with it, I might as well add this:

With Australian outback hero Crocodile Dundee as her inspiration, an 80-year-old British pensioner foiled a knife-wielding burglar with an even bigger blade of her own.

When woken by a masked man holding a knife, Winifred Whelan screamed and ran downstairs to the kitchen.

Grabbing a giant carving knife, she told the startled intruder "You call that a knife? This is a knife" in an echo of the famous scene in the Crocodile Dundee film when actor Paul Hogan confronted a New York mugger.

As she took on the intruder, her husband grappled with his accomplice.

Good work.

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Federal Bench Trial Acquittal / Jury Trial Acquittal Study Hits the Media:

Linda Seebach of the Rocky Mountain News heard about the study from Andy Leipold's posts on the subject, and wrote it up in this article. She even includes the URL for those who want to look at the whole piece, a nice touch that I wish I saw in more print publications. I'm delighted that she found Andy's work as noteworthy and interesting as I did.

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Accomplices, Accessories, Mens Rea, and More:

I thought I'd briefly chime in on the legal dispute between Orin and David Kopel. I stress that I'm speaking here only of the legal dispute (as was Orin). The question is whether UN officials' (and by extension the UN's) actions would make them accomplices under U.S. law in a Hezbollah kidnapping, given the factual account that David set forth -- several UN peacekeepers take bribes from Hezbollah to assist in the kidnapping, and then top UN officials authorize the destruction or concealment evidence with the purpose of covering up the peacekeepers' misconduct (though not necessarily the purpose of helping Hezbollah). We're also all applying U.S. law, rather than, say, Lebanese or Indian or Israeli law, because the question is whether it's sensible to use the label "accomplice" to an overwhelmingly U.S. audience, and not whether particular people are likely to be convicted of particular offenses in the likely jurisdiction.

Here are my thoughts; I may be mistaken (unlike Orin, I've only taught crim law for a year, though I did study some of the mens rea / accomplice rules pretty closely for my Crime-Facilitating Speech article), and the matter is complex because some of the rules vary from American jurisdiction, but this is my sense of the matter.

1a. In most U.S. jurisdictions, to be guilty of aiding a crime under an "aiding and abetting" theory, also sometimes called an "accessory before the fact" theory, one (generally speaking) needs to help the criminal with the purpose that the crime be committed. Mere knowledge that one is helping bring about the crime, but in the absence of such purpose, isn't enough.

1b. But in a significant minority of U.S. jurisdiction, aiding and abetting liability can be satisfied even by a showing of help plus mere knowledge. E.g., People v. Spearman, 491 N.W.2d 606, 610 (Mich. Ct. App. 1992) ("To find a defendant guilty on an aiding and abetting theory, the people must show that (1) a crime was committed either by the defendant or by another, (2) the defendant performed acts or gave encouragement that aided or assisted in the commission of the crime, and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its commission at the time he gave aid or encouragement"), overruled as to other matters, People v. Veling, 504 N.W.2d 456 (Mich. 1993); Ind. Code § 35-41-2-4 ("A person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense ...."). Some jurisdiction treat knowing-but-not-purposeful assistance as the separate crime of facilitation, but some (including those I just pointed to) treat is as ordinary aiding and abetting.

1c. There's also some authority -- though I'm not sure how widely it's followed -- for the proposition that the rule should be purpose (plus, of course, aid) for aiding merely "[v]enial crime[s]," but knowledge for "[h]einous crime[s]." People v. Lauria, 59 Cal. Rptr. 628, 633-35 (Ct. App. 1967).

2. OK, that's for standard aiding and abetting, for instance driving someone to a crime scene, acting as a lookout, and so on -- the sort of thing that the U.N. peacekeepers are accused of. But the U.N. high officials are being accused of covering up the crime after the fact. Here the question is whether they are "accessor[ies] after the fact," people who affirmatively help a felon escape capture after the crime is committed. Here the law generally requires only knowledge that the felony has been committed, though possibly plus the purpose of helping cover up the felony. The purpose to have helped in the felony in the first instance is unnecessary. Corpis Juris Secundum, Criminal Law § 140, states that "An accessory after the fact is one who, knowing a felony to have been committed receives, relieves, comforts, or assists the felon, or in any manner aids him to escape arrest or punishment." (There are problems with relying on legal encyclopedias as opposed to binding authorities such as cases or statutes, but here I think it's apt, because we're looking for the general view throughout the U.S. jurisdictions, so short of a 50-state survey the encyclopedia or a treatise is the best bet.) Similarly, the federal accessory-after-the-fact statute, 18 U.S.C. § 3, states that "Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact."

Therefore, under the facts set forth in David's post, the U.N. high officials' actions would likely make them accessories after the fact, because they knew that the peacekeepers (who were likely liable for at least some felony) had committed a crime, and were acting with the purpose of helping them evade capture. It does not matter whether the U.N. high officials had the purpose of advancing Hezbollah's goals; it's enough that they had the purpose of helping their subordinates evade capture.

3. So under the facts as described, the U.N. high officials would be accessories after the fact -- but would they be accomplices? The modern view seems to be "no," but not uncontroversially. Rollin M. Perkins & Ronald N. Boyce, Criminal Law 727 (3d ed. 1982), as cited in Black's Law Dictionary, reports, "There is some authority for using the word 'accomplice' to include all principals and all accessories, but the preferred usage is to include all principals and accessories before the fact, but to exclude accessories after the fact." The federal courts definitely take this latter view, though the contrary view survives at times, especially in casual use; see, e.g., U.S. v. Payner (1980) (Marshall, J., dissenting) (opining that allowing the admission of illegally gathered evidence would make a federal court "the accomplice of the Government lawbreaker, an accessory after the fact"); Minn. Stat. Ann. § 609.495 (calling accessories after the fact "accomplice[s] after the fact"); United States v. Irwin, 149 F.3d 565, 571 (7th Cir. 1998) (same); People v. Dye, 427 N.W.2d 501, 512 (1988) (same); Purvis v. State, 208 Ga. App. 653, 654 (1993) (same); People v. Knapp, 441 N.E.2d 1057, 1067 n.1 (N.Y. 1982) (Jasen, J., dissenting) (same).

Thus, my tentative sense is: (1) It's probably better to describe people who act as the U.N. officials were alleged to have acted as "accessories" rather than "accomplices." There's a good deal of precedent, though, for using the term "accomplice"; and in any event, the two have similar enough connotation that in casual discussion little harm is done by substituting one for the other (though in careful legal discussion it might be clearer to follow what seems to be the dominant view and limit "accomplice" to accessories before the fact).

(2) A person or institution may be liable as an accessory after the fact (or, if you prefer, an accomplice after the fact) even if the person (or, for an institution, the institution's responsible actors) had no desire that the underlying crime be committed. Knowledge that they're helping the offenders escape, coupled with the purpose that the offenders escape (for instance, if the purpose is simply to cover up the offenders' crime so as to avoid embarrassment for the offenders' employers), suffices.

Please do let me know if I'm mistaken on any of these points.

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Judge Posner on Justice Douglas:

Much worth reading; I'm no expert on the substance, but it's certainly a fun and interesting read, and my sense is that the criticisms of Douglas, from what I've heard, are indeed quite apt. (Certainly Douglas's constitutional work, with which I am familiar, betrays the flaws that Posner identifies.) Thanks to Orin for the pointer.

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Sunday, July 23, 2006

ACLU Backs Funeral Picketers:

The ACLU has filed suit on behalf of a religious group that pickets military funerals with anti-gay messages. The suit challenges the state of Missouri's law barring picketing near military funerals. An equivalent federal measure was signed into law earlier this year. According to the Washington Post:

The church and the Rev. Fred Phelps say God is allowing troops, coal miners and others to be killed because the United States tolerates gay men and lesbians. . . .

In the lawsuit the ACLU says the Missouri law tries to limit protesters' free speech based on the content of their message. It is asking the court to declare the ban unconstitutional and to issue an injunction to keep it from being enforced, which would allow the group to resume picketing.

UPDATE: I neglected to note that Eugene has addressed the constitutionality of limits on funeral picketing in this article for National Review Online (and here on the VC).

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Arabs' Fear of Iran:

We hear a lot about how much Arabs resent early 20th century "Western imperialism," but tend to forget that the (decidedly non-Arab) Ottoman Turks ruled the Arabs (including South Syria, the area that became Mandatory Palestine after WWI) for hundreds of years. Via lgf, Mark Steyn relates that fact to contemporary Arab states' reaction to the Israel-Party of God (Hezbollah) war:

But Saudi-Egyptian-Jordanian opportunism on Palestine has caught up with them: It's finally dawned on them that a strategy of consciously avoiding resolution of the "Palestinian question" has helped deliver Gaza, and Lebanon and Syria, into the hands of a regime that's a far bigger threat to the Arab world than the Zionist Entity. Cairo and Co. grew so accustomed to whining about the Palestinian pseudo-crisis decade in decade out that it never occurred to them that they might face a real crisis one day: a Middle East dominated by an apocalyptic Iran and its local enforcers, in which Arab self-rule turns out to have been a mere interlude between the Ottoman sultans and the eternal eclipse of a Persian nuclear umbrella.
On a marginally related note, it turns out that even in Israel, anti-Israel sentiment is tied into anti-American sentiment, as evidence by this Ha'aretz report on an anti-War demonstration in Tel Aviv attended by Jewish and Arab leftists, communists, etc.:
The rally, which received wide international press coverage, had a theme unfamiliar from previous demonstrations here. Beside the usual calls for the prime minister and defense minister to resign, this was a distinctly anti-American protest. Alongside chants of "We will not kill, we will not die in the name of Zionism" there were chants of "We will not die and will not kill in the service of the United States," and slogans condemning President George W. Bush.

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Treason:

Check out this post by Orin Kerr at OrinKerr.com on the repeated reference to "treason" in the Constitution, and what it means.

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Jurisdynamics Grows:

Jim Chen has announced two new contributors to the Jurisdynamics blog: Daniel Farber and J.B. Ruhl. With their contributions, Jurisdynamics should become even more of a must read.

Speaking of Jurisdynamics, VC readers might be interested in this post on unanimous-but-wrong Supreme Court decisions.

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Sunday Song Lyric: As a big fan of '80s alternative, it should be no suprise that I own more than one Depeche Mode album. While I do not think that their music was ever particularly original or complex, it had a certain appeal (particularly when I was in high school and college). I have not bought a new DM album in a decade or more, but I'll still pop one in the CD player every now and then.

In my opinion, DM's best album is Black Celebration. (Blogcritics' Scott Smith agrees.) While darker than some of DM's other stuff, I think the material is richer and less derivative than some of their other work as well.

"Here Is the House" is among my favorite tracks on the album. It is also this week's lyric. It's an appropriate choice now that our new house is taking shape, and it becomes more of a home. Here is an excerpt:


Here is the house
Where it all happened
Those tender moments
Under this roof
Body and soul come together
As we come closer together
And as it happens
It happens here
In this house

So we stay at home
And I'm by your side
And you know
What's going on inside
Inside my heart
Inside this house
And I just want to
Let it out for you
You can find the full lyrics here.
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"Those Three Days":

I was just reminded of Lucinda Williams' Those Three Days, which I blogged about three years ago, and thought that I'd post it again. (Thankfully, I was not reminded of it by an event in my happily married life.) It's a stunning song, raw and bitter and true. Here are the lyrics, which of course don't do the song justice, thought they are very good:

You say there's always gonna be this thing
Between us days are filled with dreams
Scorpions crawl across my screen
Make their home beneath my skin
Underneath my dress stick their tongues
Bite through flesh down to the bone Since those three days

Did you only want me for those three days?
Did you only need me for those three days?
Did you love me forever
just for those three days?
For those three days

You built a nest inside my soul
You rest your head on leaves of gold
You managed to crawl inside my brain
You found a hole and in you came
You sleep like a baby breathing
Comfortably between truth and pain
But the truth is nothing's been the same
Since those three days

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Astrology, Fish, Althouse, and 9/11 Conspiracy Theories.--

Ann Althouse has a good critique of Stanley Fish's op-ed in the New York Times on the University of Wisconsin professor who teaches 9/11 conspiracy theories in class.

Here is Fish:

In short, whether something is an appropriate object of academic study is a matter not of its content — a crackpot theory may have had a history of influence that well rewards scholarly scrutiny — but of its availability to serious analysis. This point was missed by the author of a comment posted to the blog of a University of Wisconsin law professor, Ann Althouse: “When is the University of Wisconsin hiring a professor of astrology?” The question is obviously sarcastic; its intention is to equate the 9/11-inside-job theory with believing in the predictive power of astrology, and to imply that since the university wouldn’t think of hiring someone to teach the one, it should have known better than to hire someone to teach the other. . . .

[T]he truth is that it would not be at all outlandish for a university to hire someone to teach astrology — not to profess astrology and recommend it as the basis of decision-making (shades of Nancy Reagan), but to teach the history of its very long career. There is, after all, a good argument for saying that Shakespeare, Chaucer and Dante, among others, cannot be fully understood unless one understands astrology.

The distinction I am making — between studying astrology and proselytizing for it — is crucial and can be generalized; it shows us where the line between the responsible and irresponsible practice of academic freedom should always be drawn. Any idea can be brought into the classroom if the point is to inquire into its structure, history, influence and so forth. But no idea belongs in the classroom if the point of introducing it is to recruit your students for the political agenda it may be thought to imply.

And this is where we come back to Mr. Barrett, who, in addition to being a college lecturer, is a member of a group calling itself Scholars for 9/11 Truth, an organization with the decidedly political agenda of persuading Americans that the Bush administration “not only permitted 9/11 to happen but may even have orchestrated these events.”

Is the fact of this group’s growing presence on the Internet a reason for studying it in a course on 9/11? Sure. Is the instructor who discusses the group’s arguments thereby endorsing them? Not at all. It is perfectly possible to teach a viewpoint without embracing it and urging it. But the moment a professor does embrace and urge it, academic study has ceased and been replaced by partisan advocacy. And that is a moment no college administration should allow to occur. . . .

[A]cademic freedom is just that: the freedom to do an academic job without external interference. It is not the freedom to do other jobs, jobs you are neither trained for nor paid to perform. While there should be no restrictions on what can be taught — no list of interdicted ideas or topics — there should be an absolute restriction on appropriating the scene of teaching for partisan political ideals. Teachers who use the classroom to indoctrinate make the enterprise of higher education vulnerable to its critics and shortchange students in the guise of showing them the true way.

Althouse responds at length. This is just a taste of her argument:

Both Fish and Farrell stress process over substance. It's not a question of what subjects come into the classroom. (They ignore the process point I've made, which is that I doubt that administrators could stick to substance neutrality. Again: picture a teacher of white supremacy.) Farrell emphasizes the process of multiple viewpoints and debate. Fish emphasizes the process of academic inquiry and avoiding proselytizing. He would ask the teacher whether he could set aside "your partisan identity" and not "urge political action."

I wonder how far Fish means to take that. I've heard many law professors over the years say that since everyone is really partisan in some way, it's more honest to come right out and say what your positions are. They would portray Fish's ideal professor as a big sneak, posturing as neutral, but really slipping opinion in everywhere. Is Fish saying that professors who take the open approach are wrongly allowing their "partisan identity" to appear in the classroom? It would be terribly repressive for administrators to forbid that. Maybe Fish only means for the professor to refrain from "urg[ing] political action." If so, he's not saying very much. But Fish thinks he's identified a clear line: . . .

Is that a clear line? The more I look at it, the less clear it seems. It's quite subjective. Each of the last two sentences of his essay contains the phrase if the point is. How are we to tell what the teacher's point really is? A smart person with an agenda knows how to hide it.

I have actually been studying who believes in astrology. Some indices of conservatism use a belief in astrology as a measure of how conservative a respondent is. Yet Democrats are more likely to believe in astrology than Republicans, with the most conservative subgroup--conservative Republicans--being among the least likely to believe in astrology.

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The British Open on ABC.--

I'm having a pleasant morning watching the Open Championship, aka The British Open, on ABC. Ernie Els just tied Tiger Woods for the lead at 13 under par with a birdie on #5. Playing in the next (and last) group, Woods then eagled the hole to take a 2-shot lead at 15 under par. Sergio Garcia, who has the disadvantage of playing with the brilliant Woods, is struggling, having already missed a bunch of short putts. Sergio started one stroke behind Woods, but is now 5 strokes down. It's not clear yet whether anyone besides Woods, Els, and Chris DiMarco (-12) are going to contend today. Woods looks so solid now that he will be very difficult to beat.

The wind is blowing hard at Royal Liverpool (Hoylake) and the course is burned out even more than usual. At first glance on TV, the turf looks like an unwatered burned out municipal course in Texas (or Chicago in mid-August). The course at Hoylake (which I haven't played) looks to be less interesting than most of the courses in the Open rota; it is certainly less scenic. But there is something about links golf that I just love. And the cavernous bunkers with sod faces are genuine hazards.

Another good thing about watching the British Open is that, with the time difference, ABC is willing to preempt morning programming and show 7 hours of coverage, including the complete round of the leaders, who tee off last.

Here is a link for those who want to reread my post on last year's British Open at St. Andrews, where I had played in 2000:

Golf is one of the few sports where ordinary people can play on many of the historic courses where the pros play (though getting on most of them is far easier in the UK than in the US). After playing a course, it is a treat to watch a tournament played on it.

UPDATE: With about 5 holes to play, Woods now has a 1-shot lead over Chris DiMarco, who just sank a 45-foot putt for par.

2d UPDATE: With 3 holes to play, Woods has a 2-stroke lead over DiMarco, who has only 2 more holes to play.

3d UPDATE: Tiger won by 2 strokes over DiMarco, broke down crying as he left the last green, and a few minutes later gave a touching speech referring to his recently deceased father Earl.

Woods is probably the greatest golfer who ever lived, though he still needs to surpass Jack Nicklaus's total of 18 professional major championships before that question will be settled finally. Nicklaus was 32 when he won his 11th professional major; Woods won his 11th today at age 30.

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