Saturday, September 16, 2006

The Coolest Professor in the Legal Academy:

Paul Horwitz of Prawfsblawg is taking nominations for the much-coveted title of "The Coolest Professor in the Legal Academy." Of course, as Prof. Horwitz points out, "winning this title is a little like winning the prize for tallest Munchkin."

Antitrust research bleg:

One of the reasons for the enactment of the antitrust laws was to safeguard political freedom by preventing the formation of large corporations powerful enough to control the government. Taft, in his book The Anti-Trust Act and the Supreme Court (written in 1914, after his presidency but before he joined the Supreme Court), said the Sherman Act had attacked methods of "suppressing competition and controlling prices" which "had resulted in the building of great and powerful corporations which had, many of them, intervened in politics and through use of corrupt machines and bosses threatened us with a plutocracy" (p. 4).

Does anyone know of an economicsy, perhaps public-choicey, treatment of the same point, where antitrust emerges as a second-best optimum to prevent corruption or excessive corporate political influence?

More on the Conservative Case for Pelosi:

Critics of my suggestion that the country may be better off, from a conservative/libertarian point of view, if the Republicans lose the House of Representatives make three main arguments:

1. The claim that incoming Democratic committee chairmen will cause greate harm.

2. The danger that the Republicans will react to defeat by moving to the left.

3. That a Democratic House might defund the Iraq War, causing a catastrophic defeat.

I don't think that any of these points are compelling enough to justify holding off on throwing the bums out. Yes, it is true that the Democrats are likely to appoint some very liberal and (in some cases) dubiously competent committee chairs. But the Democratic House majority is likely to be narrow, and the committee chairs' more extreme proposals could be killed by the full House, where the swing voters will be more moderate centrist Democrats. Any far left bill that does clear the House stands to be killed by the still-GOP controlled Senate. If worse comes to worse, President Bush could veto it. Presumably, he will be far more willing to veto dubious Democratic bills than those of his fellow Republicans. Finally, as commenter Angus points out, some of the Republican committee chairmen are not much to write home about either.

I am also skeptical that the Republicans will react to defeat by moving to the left. If the Republicans lose, it will almost certainly be because of the widespread (and at least in part accurate) perception that they have been foolish and incompetent. As I have documented elsewhere, most voters - particularly swing voters - have only very limited knowledge of ideology and are unlikely to respond to ideological changes at the margin. To paraphrase Michael Dukakis, a Republican defeat in 2006, if it happens, will be far more about competence than ideology, and GOP political strategists will be able to figure this out. Moreover, if the GOP moves any further to the left than it already has on size of government issues, it risks a backlash from conservative activists (who care far more about ideOlogy than most ordinary voters do). Finally, it is worth remembering that the last three major GOP defeats in national elections - 1964, 1976, and 1992 - led the Party to react by moving to the right, not the left. Smaller defeats in 1982, 1986, 1996 and 1998 also did not cause much leftward movement.

I highly doubt that a Democratic House would defund the Iraq War. Democrats are deeply divided about what to do in Iraq. Enough of them oppose an immediate withdrawal that any effort to defund the war would almost certainly fail to pass in a House of Representatives with only a small Democratic majority. Even some very liberal Democrats might hesitate to vote for such a measure, since doing so would saddle the Party with the blame for the resulting military defeat if it passes. On the other hand, the Democrats will probably be more willing than Republicans to provide some tough adult oversight for the Bush Administration's far from optimal use of the funds already allocated for Iraqi reconstruction.

In short, bring on Nancy Pelosi!

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Friday, September 15, 2006

Song Lyrics:

I'm reading and much enjoying Alex Long's [Insert Song Lyrics Here]: The Uses and Misuses of Popular Music Lyrics in Legal Writing. Here's one observation that I kick myself for not having made myself, about the Clash's Should I Stay or Should I Go?: "If one’s trouble is doubled by staying, as opposed to going, then one is posed with a fairly easy choice. If those are the only two options available, one should of course go. The question, at best, appears rhetorical."

Conservatives for Nancy Pelosi:

The liberal Washington Monthly, has put together a symposium of articles by prominent conservative (and two libertarian) commentators who argue that both the country and the conservative movement will be better off with a Democratic takeover of the House of Representatives this November. More surprisingly, National Review columnist Jonah Goldberg is flirting with endorsing the same conclusion.

I agree with many of the arguments, particularly those made by Bruce Fein and Bruce Bartlett. To my mind, the two most important considerations are that 1) the GOP must suffer some electoral punishment for its big spending, big government ways of the last five years, and for the mishandling of Iraq's reconstruction, and 2) divided government may help check some of the worst impulses of both parties (as many of the Washington Monthly contributors argue). The latter point is well put by former GOP Congressman Joe Scarborough in his Washington Monthly piece:

During the 1990s, conservative Republicans and the Clinton White House somehow managed to balance the budget while winning two wars, reforming welfare, and conducting an awesome impeachment trial focused on oral sex and a stained Gap dress.

The fact that both parties hated each another was healthy for our republic’s bottom line. A Democratic president who hates a Republican appropriations chairman is less likely to sign off on funding for the Midland Maggot Festival being held in the chairman’s home district. Soon, budget negotiations become nasty, brutish, and short and devolve into the legislative equivalent of Detroit, where only the strong survive.

But in Bush’s Washington, the capital is a much clubbier place where everyone in the White House knows someone on the Hill who worked with the Old Man, summered in Maine, or pledged DKE at Yale. The result? Chummy relationships, no vetoes, and record-breaking debts.

With a Democratic House and GOP Senate (the likely result of this fall's election), the Republicans will get a well-deserved spanking, while the Democrats will be unable to enact the more dangerous parts of their own agenda. Also, a Democratic House would not be able to block Bush's judicial appointments, to my mind a rare bright spot in this administration.

Steve Bainbridge writes that the "Republicans deserve to lose, but the Democrats don't deserve to win." I agree completely. And a Democratic takeover of the House coupled with continued GOP control of the Senate and White House is a good way to inflict a defeat on the Republicans without giving the Democrats a complete victory.

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Brief Review: "Coming Together, Coming Apart":

On a recent trip I read the second volume in Daniel Gordis's account of his life as a liberal American Jewish immigrant to Israel, Coming Together, Coming Apart. I read it reluctantly, because I found the first volume, Home to Stay, only mildly interesting. But my mom really enjoyed the latter book, so I bought her the new one, and when she finished it she gave it to me. I grabbed it on the way out the door for a plane trip, realizing I hadn't packed anything to read.

Anyway, Coming Together is a vast improvement over Home to Stay. The writing is absolutely beautiful, the ideas provocative. The heart of the book is Gordis's account of his family's adjustment to life in Israel, beginning at the tail end of the Second Intifada, when the Gordis family is kept awake in its Jerusalem home by gunfire at night, and terrified by suicide murders that take place in their favorite haunts, and ending with mild optimism when the evil Arafat finally passes.

In the pages in between, Gordis, a liberal but not a "leftist," manages to efficiently and eloquently take down those Jews who ignore Israel's obligations to preserve Jewish moral values in its conflict with the Palestinians, as well as those Jews who reflexively oppose the very existence of Israel, because they prefer perpetual Jewish victimhood and the accompanying moral high ground to the inevitable moral compromises and errors that come with power and statehood. He also conveyed to me, as a "serious Jew" who has never had any significant desire to live in Israel, why he would uproot his family from a comfortable upper middle class life in L.A. and expose them to danger to fulfill his Zionist dream. As he expresses it far more eloquently than I can, I won't try to summarize it here. [UPDATE: I should point out that while Gordis emphasizes the very palpable dangers faced by Jerusalemites durng the Second Intifada, raising one's teenagers in L.A. carries some very real, though perhaps less palpable dangers [much higher crime rates, drug use rates, auto accident risk, and likely suicide rates], such that I doubt that Jerusalem in 2002 was more actually more dangerous for kids than West L.A. at the same time.]

One important caveat about this book: Israel is a country composed primarily of first, second, and third generation immmigrants, so there is really no such thing as a "typical Israeli". But to the extent there sort of is, Gordis surely isn't it. In one scene in the book, an Orthodox Jewish American says that Gordis isn't living in the real Israel because he lives in an "Anglo-Saxon" (what Israelis call native English speakers) community, hangs out mostly with British, American, and South African Jews, and works for an American-funded foundation employing yet more Anglos. Gordis bristles at the suggestion, and he's right that having moved to Israel and with a child in the army, he has as much claim to Israeliness as anyone. But in reading the book, one must keep in mind that you are getting the perspective of a relatively well-to-do American Jewish liberal Conservative rabbi/philosopher who recently moved to Israel, lives and works in in Anglo enclaves, and that the outlook and experiences of such an individual is pretty far removed from that of the "typical" Israeli. It's hard, for example, to imagine Gordis expressing serious concern about the "evil eye," a superstition that this spouse-of-an-Israeli finds to be pervasive in Israel. (I used to think that Israelis complain a lot, but I've since learned that refusing to acknowledge good fortune is a way to ward off the evil eye!)

Another interesting aspect of the book is that though it virtually drips with concern about Israel's future, Hizbollah only makes the obliquest of appearances, and Iran is never mentioned at all, not once. Instead, the book is preoccupied with the Palestinian question. A good example, I think, of how Israelis were so preoccupied with the Second Intifada that they paid too little attention to the looming fundamentalist Shiite threat until Hizbollah missiles starting raining down on them in June.

Drinkers Earn More Than Non-Drinkers: Today the Journal of Labor Research published an interesting report, summarized in this 20-page document, noting that people who drink alcohol make more money than people who don't — and people who go out to bars make the most money of all. From the executive summary:
A number of theorists assume that drinking has harmful economic effects, but data show that drinking and earnings are positively correlated. We hypothesize that drinking leads to higher earnings by increasing social capital. If drinkers have larger social networks, their earnings should increase. Examining the General Social Survey, we find that self-reported drinkers earn 10-14 percent more than abstainers, which replicates results from other data sets. We then attempt to differentiate between social and nonsocial drinking by comparing the earnings of those who frequent bars at least once per month and those who do not. We find that males who frequent bars at least once per month earn an additional 7 percent on top of the 10 percent drinkers' premium. These results suggest that social drinking leads to increased social capital.
What a perfect report for a Friday afternoon.

  UPDATE: I fiddled with this a bit to note that the document is more of a "report" than a "study."
Will New York Law Bloggers Find It Much Harder To Blog?

Gregory Beck of Public Citizen points to proposed New York bar rules that might make lawyer blogging prohibitively difficult. Under the rubric of regulating lawyer advertising, the rules will apply to "any public communication made by or on behalf of a lawyer or law firm about a lawyer or law firm, or about a lawyer’s or law firm’s services" (which is how they define "advertisement"). A New York lawyer blog in which the lawyer gives a brief biography of himself would literally qualify, since that's a "public communication made by ... a lawyer ... about a lawyer." Certainly a post noting the author's new article, forthcoming talk, or forthcoming media appearance would qualify. Presumably so would a post about another lawyer -- the definition doesn't say "public communication made by ... a lawyer ... about himself" or "about such lawyer," but "made by ... a lawyer ... about a lawyer."

And what are lawyer-bloggers bound to do with regard to such "advertising"? Most clearly, they are required to:

  1. print the blog each time a new post is posted (since that constitutes a "modification" of the "advertisement" that is the blog itself), and keep the printed copy for at least a year;
  2. send the attorney disciplinary committee a copy of the blog each time a new post is posted, and certainly each time a new post that mentions an attorney is posted;
  3. label their blogs "Attorney Advertising" on the front page -- even though such a label might itself be misleading -- unless the blog falls in the category of a "newspaper, magazine or other periodical" (a plausible interpretation, but far from certain); and
  4. include the lawyer's or law firm's actual name "in a type size as large as the largest type size used on the site" -- likely the huge font that most sites use for their header -- unless the lawyer's or law firm's name appears in the site's domain name.

It's also possible that

  • Any posts about lawyers or law firms will have to be "predominantly informational," thus excluding posts that are predominantly expressions of opinion ("The content of advertising and solicitation shall be predominantly informational, and shall be designed to increase public awareness of situations in which the need for legal services might arise and shall be presented in a manner that provides information relevant to the selection of an appropriate lawyer or law firm to provide such services.").
  • Lawyers could be subject to discipline if their statements about other lawyers -- including government officials who are lawyers -- are found to be "misleading."

I doubt that any of this is a deliberate attempt by the New York courts to suppress lawyer blogging; it sounds like they've just inadvertently defined "advertisement" too broadly. But unfortunately the language of the proposal is indeed very broad, even if the drafters' intent was too narrow.

The comment period on this proposal has been extended to November 15, 2006 (the due date was originally today), and I'm told that there have already been plenty of comments submitted that make some of these points. Nonetheless, it surely wouldn't hurt for there to be more such comments, of course if they are thoughtful, detailed, and reveal an understanding of the text of the rules. You can fax your comments to Michael Colodner at 212-428-2155, or mail them to

Michael Colodner, Esq.
Office of Court Administration
25 Beaver Street
New York, New York 10004

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Balancing Publication Bias:

It is often observed that scientific publications suffer from a "publication bias" against the publication of studies that generate negative results. A study purporting to show a link between a given chemical and given health problem is more likely to be published than a study that finds no correlation. Similarly, a study purporting to show that a given drug helps a given medical condition is more likely to be published than a study that finds the drug is no more effective than a placebo. The result, some claim, is a subtle bias in the scientific literature. But this may start to change.

In today's WSJ, Sharon Begley reports (link for subscribers) on the rise of publications that specialize in publishing studies with "negative" findings.

guardians of scientific probity are fighting back. A handful of journals that publish only negative results are gaining traction, and new ones are on the drawing boards.

"You hear stories about negative studies getting stuck in a file drawer, but rigorous analyses also support the suspicion that journals are biased in favor of positive studies," says David Lehrer of the University of Helsinki, who is spearheading the new Journal of Spurious Correlations.

"Positive" means those showing that some intervention had an effect, that some gene is linked to a disease -- or, more broadly, that one thing is connected to another in a way that can't be explained by random chance. A 1999 analysis found that the percentage of positive studies in some fields routinely tops 90%. That is statistically implausible, suggesting that negative results are being deep-sixed. As a result, "what we read in the journals may bear only the slightest resemblance" to reality, concluded Lee Sigelman of George Washington University. . . .

. . . studies that dispute connections between a gene and a disease are among the most important negative results in biomedicine. They undercut the simplistic idea that genes inevitably cause some condition, and show instead that how a gene acts depends on the so-called genetic background -- all of your DNA -- which affects how individual genes are activated and quieted. But you seldom see such negative results in top journals.

Hence, Dr. Olsen's journal, which is full of studies disputing reported links between gene variations and disease. The Sod1 gene and inherited forms of Lou Gehrig's disease? Probably not. MTHFR and the age at which Huntington disease strikes? Uh-uh. PINK-1 and late-onset Parkinson's disease? No.

Hopefully, each of these reports kept researchers, including those at drug companies, from wasting time looking for ways to repair the consequences of the supposed genetic association. But it isn't clear that any would have been published without the new journal.

Alternate titles:

I know Eugene disapproves of funny article titles, and I tend to agree. Nonetheless, sometimes you just come up with a title that someone, even if not yourself, can use.... So, if your title is, say, "An Analysis of Intermunicipal Competition, 1980-87," you might consider renaming it to "Seven Years in Tiebout." Similarly, if your title is "How the Consumer Product Safety Commission's Crusade Against Toy Balls Violates Consumer Freedom," you might consider renaming it to "The Road to Nerfdom." (See also "The Road to Smurfdom.")

WHO Backs DDT Use:

Today's WSJ reports (link for subscribers):

The World Health Organization, in a sign that widely used methods of fighting malaria have failed to bring the catastrophic disease under control, plans to announce today that it will encourage the use of DDT, even though the pesticide is banned or tightly restricted in much of the world.

The new guidelines from the United Nations public-health agency support the spraying of small amounts of DDT, or dichloro-diphenyl-trichloroethane, on walls and other surfaces inside homes in areas at highest risk of malaria. The mosquito-borne disease infects as many as 500 million people a year and kills about a million. Most victims are in sub-Saharan Africa and under the age of 5. . . . .

DDT already is on a list of WHO-approved chemicals for indoor spraying. But until now, the agency hadn't strongly endorsed its use, and donors funding malaria programs were reluctant to finance purchases of it. As a result, countries hit hardest by malaria generally have been unable to afford substantial supplies. The WHO's new stance is aimed partly at encouraging even countries that ban the pesticide to help finance its use in areas ravaged by the disease. . . .

Other pesticides and malaria-fighting methods have often proved to be less-effective and more costly than DDT. Insecticide-treated mosquito nets hung in sleeping areas are successful, but cost, distribution problems and varying usage make them less effective than they could be. Malaria experts say deployment of a malaria vaccine that is now in development could still be years away.

Pressure has been growing in the past few years for the WHO to support DDT more aggressively. Jon Liden, a spokesman for the Global Fund, which pays for indoor spraying of DDT or other pesticides in 41 countries, says the organization welcomes the WHO's move. "The Global ready to finance increased use of the strategy if affected countries request it," he says.

The U.S. government has stepped up support for indoor pesticide spraying of homes in Africa. While it spent less than $1 million on such programs in 2005, it plans to spend $20 million in fiscal 2007, according to Admiral R. Timothy Ziemer, coordinator of the President's Malaria Initiative and the U.S. Agency for International Development's malaria programs. This year, the U.S. government purchased DDT for a spraying program in Zambia.

This seems like a very positive development. While excessive DDT use in the United States was linked to reproductive problems in several bird species, respnsible indoor spraying of DDT is an important, cost-effective component to a comprehensive malaria-control strategy in developing nations.

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Same-Day Transcripts for Supreme Court Arguments: If you're a Supreme Court geek, you're going to be really excited by this news: Starting this fall, the Supreme Court will be posting transcripts of oral arguments on the same day as the argument. Okay, so it's far from same-day video, and it's not quite same-day audio (my own preferred approach), but it's still going to be very helpful for those interested in a case who can't make it to DC for the argument and want to know the details of what happened.

  Here is the text of the Court's announcement:
Beginning with the October 2006 Term, the Court will make the transcripts of oral arguments available free to the public on its Web site,, on the same day an argument is heard by the Court.

In the past, the transcripts had been posted on the Web site approximately two weeks after the close of an argument session. Previously, transcripts could be obtained sooner than they were posted on the Court's Web site by making arrangements in advance and purchasing them from the Court's contract reporting service.

In the past, oral arguments had been transcribed off-site from audio recordings. The Court's current contract reporting service, Alderson Reporting Company, will now utilize the services of a court reporter in the Courtroom and high-speed technology to transcribe the oral arguments more quickly.

Transcripts can be located by clicking on the "Oral Arguments" prompt on the home page of the Court's Web site and selecting "Argument Transcripts."

Transcripts will be listed by case name and the date of oral argument. Transcripts are permanently archived beginning with the 2000 Term on the Court's Web site. Transcripts prior to the 2000 Term are maintained in the Court's Library.
Excellent news. Thanks to Howard and SCOTUSBlog for the link.

Thursday, September 14, 2006

Found Rebus:

Eric Berlin writes:

I know you have at least a passing interest in wordplay and puzzles, so you may be amused by a discovery made by [David Shukan,] one of my co-members in the National Puzzlers' League.

A drop of background: The NPL's monthly newsletter, The Enigma, is filled with puzzles. Some of these are rebuses. In a rebus, you are given a symbol or a series of symbols, and must decode their meaning. For instance, given the symbol


you might arrive at the answer "abalone" — "a b, alone." (You are also given a verse with a word removed, so you can use the context of the verse to help guide you to the answer.)

The discovery made by my colleague is this: Your blog post here can be used as a rebus symbol in the same way as the B above. The answer to this rebus is shown in the very first comment to that post: "Probably judicial immunity from suit is better than the alternative, but man, I can't help wishing for 1983/Bivens liability for such solutionly out-of-line judges."

What is the solution, which both fits the comment and describes my post? No fair peeking.


Check out the lyrics of FCC FU: The Anthem on the front page, the audio Main Choral Version, and the audio Choir & Heavy Metal Version. Thanks to Hanah Metchis Volokh for the pointer.

Flags and Speech:

Some responses to my post about the flag desecration prosecution prompt me to repost (with some edits) something I wrote about in July 2004.

I've never bought some conservatives' harping on the supposed ridiculousness of the Supreme Court's flagburning decision. Sure, flagburning isn't literally opening your mouth or talking (one meaning of "speech") or using a machine to print letters on paper ("press"). But neither is handwriting a letter; neither is waving a non-printed sign.

Most relevant here, neither is waving a flag. I suspect that most people would agree that flag waving is constitutionally protected. The Supreme Court basically held that in 1931, in one of the Court's first three decisions protecting free expression (Stromberg v. California). Would a law banning the waving of the Confederate flag really be obviously fine, because flagwaving isn't literally "speech" or "press"?

I suppose some people might argue that such a law would be constitutional for that reason. But I suspect that most people would disagree, and conclude that waving a flag really is a form of speech, just in a symbolic language. Waving the flag is like wearing a black armband, applauding, saluting, wearing a satirical mask, or wearing a cross or star of David (which is protected both as religious practice and as speech).

It seems to me that flagburning is just as much symbolic speech as is flagwaving. One can argue that it's not very valuable speech, or that there's a specially compelling interest in banning it, as Chief Justice Rehnquist did in Texas v. Johnson. But the Court is quite right to treat it as speech.

Of course, all this deals with restrictions on flagburning on the grounds that it involves a flag; such restrictions necessarily focus on the message that the flagburning (or the attachment of words to a flag, or flying the flag upside down) sends -- they'd be senseless if they weren't focused on the message. A law that bans the burning of all objects in certain public places, perhaps on the grounds that they are fire hazards, would be constitutional. But a ban on the burning just of the American flag, or even of flags generally, would be an attempt to suppress communication, just as a ban on handwritten picket signs, or a ban on public speeches that are derogatory towards America (or for that matter on speeches that are derogatory towards any nation).

The Politics of Surveillance and the Specter NSA Bill: Senator Specter's NSA bill passed out of committee yesterday by a 10-8 vote. While the Specter bill remains controversial, and its future is uncertain, my understanding from press reports is that it has a somewhat decent chance of getting through Congress. This brings up a very interesting question: Why is it that Congress seems to be open to the Specter bill just a few months after it gave the Administration such a hard time with the Patriot Act renewal?

  Here's a little background. In 2005 and early 2006, Congress struggled over the renewal of a few parts the USA Patriot Act which were set to "sunset" by the end of 2005. On a scale of 1 to 10, in which 1 is the least important and least far-reaching and 10 is the most important and most far-reaching, the controversial parts of the Patriot Act renewal were about a 2. Nonetheless, the Bush Administration struggled for months to push through the legislation. Congress held hearings on almost every teeny tiny piece of text, and had to pass interim legislation because the bill couldn't get through. In the end, the legislation that resulted was more restrictive than the authorities permitted by the Patriot Act. Throughout the process, every comma and letter was pored over with extensive focus over the balance between Executive power and civil liberties.

  Compare that to the developing politics surrounding the Specter NSA bill, which was voted out of the Senate Judiciary Committee. On the same scale of 1 to 10, in which 1 is the least important and 10 is the most important, the Specter bill is somewhere around an 8. The Specter bill would reorient the basic role of the legislative branch in national security surveillance. In terms of importance, its provisions dwarf the provisions in the Patriot Act renewal by orders of magnitude. And yet Congress isn't holding lots of hearings on it, or debating it very much. Although the bill certainly has its critics — note that the Judiciary Committee vote was 10-8 — Congress at least seems open to enacting the bill's very significant changes.

  So back to my question: What explains Congress's apparent openness to the Specter NSA bill given the very rough ride that the Patriot Act renewal bills encountered just a few months ago?

  I'm not sure of the answer. But here are a few possibilities:

  1. The comparison is premature. The Senate Judiciary Committee isn't representative of Congress as a whole. The bill is out of Committee in the Senate, but it will encounter major roadblocks elsewhere that will kill the current version of the legislation.

  2. Most members of Congress and their staffers don't particularly understand this complex area of law. The intricacies of surveillance law can be just a big blurry mess to them, and they don't fully realize the scope of the NSA bill.

  3. Key figures in the Bush Administration really care about this one, whereas they didn't care about the Patriot Act renewal. Informed insiders in the Bush Administration surely knew that the controversy over the Patriot Act didn't matter much, and so they were happy to keep it a low priority. In contrast, this one is a biggie, and so they're pushing really hard for it.

  4. The public can pay only so much attention to surveillance law, and after years of discussion of the Patriot Act they're just not that interested anymore. The relative lack of focus makes it a lot easier to act on otherwise-controversial legislation.

  5. The basic facts of the NSA program are highly classified, so classified that even Senator Specter himself doesn't know how the program operates. It's relatively hard to drum up opposition to the regulation of a black box. In contrast, the Patriot Act debates were spearheaded by a few attention-grabbing scenarios, such as access to library records, which could be used by opponents to focus public attention.

  6. Press miscoverage of surveillance law has so warped the public understanding that one or both of the public reactions do not reflect actual public preferences. The press repeatedly overhyped the Patriot Act, so perhaps that led to excessive controversy over its provisions; perhaps the public reaction to the Specter bill accurately reflects majority preferences. On the other hand, the press initially reported the Specter bill as a compromise, so perhaps that led to an unnaturally low amount of public opposition to it.

  Any other thoughts? Maybe I'm just missing something, but I do find the comparison pretty interesting.
Three Lawprofs' Comic Book About Copyright Law:

Keith Aoki, Jamie Boyle, and Jennifer Jenkins' "Bound by Law?" My favorite item: The "surrealist garden of intellectual property delights," p. 12:

Judge Lets Flag Desecration Prosecution Go Forward:

Scott Wayne Roe is, according to the Ottumwa Courier, "accused of desecrating the United States flag June 4 when he displayed the flag upside down at his residence and wrote 'Corruption of Blood,' a phrase from the U.S. Constitution, on the flag." Roe is being prosecuted for violating Iowa Code 718A.1, which in relevant part reads:

Any person who ... shall place ... any word, figure, mark, picture, design, drawing, or any advertisement of any nature, upon any flag ... of the United States, ... or shall expose ... to public view, any such flag ... upon which shall have been ... placed ... any [such item] ... shall be deemed guilty of a simple misdemeanor.

Now you'd think that given the Supreme Court cases Texas v. Johnson and U.S. v. Eichman, the Iowa law is clearly unconstitutional. If you can burn a flag for expressive purposes, you can also write things on it for expressive purposes. Given the logic of the Supreme Court's opinions, it should be an open and shut case. The defendant's behavior is constitutionally protected, and in any event the statute applies to a substantial amount of constitutionally protected behavior, so even if for some reason this particular defendant violated some other law (e.g., stole the flag) so that his conduct is unprotected, the statute is unconstitutionally overbroad.

But a magistrate judge in Iowa has rejected the constitutional challenge, with little First Amendment analysis, and has let the case go to trial next week. The court held:

To rule on an overbreadth challenge at this stage in the proceedings would be premature. The record has not been adequately developed. No evidentiary hearing has taken place. To rule at this time would require the court to make assumptions and conclusions which may or may not be supported by the evidence. Ruling on the overbreadth challenge will thefore be deferred and made if necessary at the time of ruling on the case in chief.

But whether this statute is substantially overbroad requires no evidence about what this particular defend did or did not do. The statute's overbreadth is apparent from the statute's text. The only way it can avoid overbreadth is if the courts have interpreted it, or are willing to interpret it, narrowly here, but that doesn't require any evidentiary hearing. No facts uncovered at trial could make this law valid.

So fifteen years after the Supreme Court decided that flag desecration may not be outlawed, Roe has to face a criminal trial for flag desecration, without the judge's seriously confronting Roe's quite solid First Amendment arguments. Thanks to How Appealing for the pointer.

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More from Fatality666's Website.--

One of the many amazing posts on the website of suspected Montreal killer, Kimveer Gill, who posted as "fatality666" are the results of some online polls he took (August 31). He reports that he had an 84% chance of going postal:

Some quizes I did

How evil are you?

Take the quiz: Which famous dictator are you?

Adolf Hitler You're Adolf Hitler! You're the most famous, psychotic, genocidal madman ever to taint the pages of history books! You're a fascist. Anyone who questions you is quickly dealt with... Sure, you're a little compulsive and needy but you've accomplished a LOT, as far as MURDERING, TERRORIZING and CONQUERING go! Bottom line: You're out of your mind and you have a superiority complex the size of the sun. You're one egocentric freak. . . .

Take the quiz: What Movie Criminal Are You?

Bonnie & Clyde: The Criminal Criminal "This here's Miss Bonnie Parker. I'm Clyde Barrow. We rob banks." . . .

You have a 84% chance of going postal!

Er... well, you're in the at-risk area. Best work out those anger issues. Join a gym, perhaps. Remember, no matter how moronic their genetic contributuion to the gene pool may be, subtle sterilization is a lot less messy.

[POLL] How Likely Are You to Go Postal? . . .

Probability of killing, 86%

You have killed someone, or tried to kill yourself many times. You may have many enemies and no one to help you. Over exposure to death will ultimately cause you to break easily. Consider yourself a danger to society. Seek professianal help immediately!

[POLL] Are you capable of killing[?]

Mood:Satanic Muhahahaha Music:Satyricon

In another interesting post, fatality666 warns others that they might be arrested for what they post online (June 11):


Look out friends

The RCMP and CSIS in Canada and Local Law enforcement and F.B.I. in the States have been scouring this web site during the last 3 months. Looking to arrest you guys and girls for nothing.

Ever since that girl from Alberta killed her family, they've been going through the pros, and have arrested dozens of people because of what they wrote in their journals (like talking about killing someone), or the pics they got (like holding a gun) or whatever.

Just be careful about what you write. Select "Private Entry" for anything that might be perceived as suspicious. For now.

Another post is simply entitled "Hate":

I hate this world
I hate the people in it
I hate the way people live
I hate god
I hate the deceivers
I hate betrayers
I hate religious zealots
I hate everything

I hate so much

(I could write 1000 more lines like these, but does it really matter, does anyone even care)

Look what this wretched world has done to me
Mood:I hate everything

Montreal Killer: Meet Trench, the Angel of Death.--

Some news organizations, such as the Calgary Sun, have identified the Canadian gunman at Dawson College in Montreal as Kimveer Gill, age 25. The police have neither confirmed nor denied Gill as the killer. The Sun, on its CNEWS website, published a picture purporting to be Gill in a black trench coat holding a gun, a photo that it had downloaded from the goth website,

I located the webpage and the member who posted the picture that was fingered by the Sun's sources as the killer. Ominously, the member's name was "fatality666." On fatality666's page are many pictures of a young man from Quebec with a modified mohawk haircut and guns.

His profile reads:

His name is Trench. You will come to know him as the Angel of Death. He is male. He is 25 years of age. He lives in Quebec. He finds that it is an O.K place to live. He is not a people person. He has met a handfull of people in his life who are decent. But he finds the vast majority to be worthless, no good, kniving, betraying, lieing, deceptive, motherfuckers.

Work sucks..........School sucks..........Life sucks..........What else can I say

Metal and Goth kick ass

Life is like a video game, you gotta die sometime.

Fatality666's journal has this heading:

Fatality of Mind and Soul

People once believed, that when someone dies, a crow carries their soul to the land of the dead. But sometimes, something so bad happens, that a terrible sadness is carried with it and the soul can't rest. Then sometimes, just sometimes the crow could bring that soul back to put the wrong things right.

Fatality666 has a very active journal, including this post on September 12, which suggests some of the same motivation as the Columbine killers:

Stop High school Bullying (FUCK THE JOCKS)

Stop High School Bullying

Stop making fun of each other because of the clothes you wear, or the way people talk or act, or any other reasons you make fun of each other.

It's all the jocks' fault


So Just Stop...............o.k.???

Mood:Angry at the jocks Music:Subway to Sally - Unsterblich

This post from September 10 suggests some paranoia:

Shut up

I wonder why my household has been under surveillance by law enforcement for 6 years now? Makes no sense to me!!

Oh, you're wondering how I know? lol Bet you little monkeys are Hey, assholes!! Everything everyone says or does against me is shown to me in my dreams, I see everything. You fucking monkeys.

God, you humans are so inferior. Mood:............................... Music:Marilyn Manson - Coma White

On September 4, fatality666 admits that he dreams about murder:

usually I have dreams about people being murdered, hung, getting shot in the head, and stuff like that. Sometimes it's me that that stuff is happening to, and it's always dark and cold.

In several comments, fatality666 defends his use of the N-word. He is a fan of Quentin Tarantino movies and writes "GO POSTAL" (August 26).

The captions below are posted along with these pictures at Fatality666's page at The last picture is ominously captioned: "Ready for action."

"I think I have an obbsetion with guns.....MUAHAHAHA"

"Me again, hope this pic didn't scare anyone too much"

"Love the kneeling stance with a rifle"

"CX4 Storm Semi-Automatic Carbine"

"Ready For Action"

Related Posts (on one page):

  1. More from Fatality666's Website.--
  2. Montreal Killer: Meet Trench, the Angel of Death.--
  3. Montreal School Gunman Identified.--
Montreal School Gunman Identified.--

Some news organizations have identified the gunman who walked into a Montreal school, opened fire, and then turned a school cafeteria into a "shooting gallery." According to reports on CNEWS, he is Canadian-born Kimveer Gill, age 25:

CNEWS: "Kimveer Gill, 25, of Laval poses for a photo posted on the goth website in a long black coat toting a rifle —- a chilling look at the man Sun sources have identified as the gunman who opened fire on students at Montreal’s Dawson College yesterday, killing one woman and injuring 19."

CNEWS reports:

A trenchcoat-clad shooter with a scowl and a Mohawk haircut turned a college cafeteria into a combat zone with a commando-style assault that left him and a young woman dead Wednesday.

Carrying an automatic rifle, two other guns, and dressed head to toe in black, the man stormed into the sprawling downtown Dawson College and began coldly cutting down students. Another 19 people were injured while hundreds of screaming and sobbing students spilled out onto the city streets in the shadow of the fabled Montreal Forum hockey arena.

At least eight were listed in critical condition. Police said the woman who was killed was 20.

Inside, the cafeteria was transformed for 15 minutes into a shooting gallery in a scene eerily reminiscent of the city's 1989 Ecole Polytechnique massacre in which 14 women were killed.

The gunman took cover behind a row of vending machines and exchanged gunfire with police while petrified students dropped to the floor in an effort to elude the barrage of bullets.

Surrounded by police, he repeatedly barked a single order each time the officers inched toward him: "Get back! Get back!"

The exchange ended with the attacker slumped on the floor, collapsed in a hail of gunfire.

Police Chief Yvan Delorme confirmed that officers killed the gunman, who was described by provincial police as a 25-year-old from the Montreal region.

Delorme said the attacker sprayed gunfire at random targets. He said provincial police had been called in to investigate, which is customary in a killing involving the local force.

"The only thing I can say is that he was a young man of Canadian origin," Delorme said.

He said police were able to respond quickly because two officers were already at the college on a drug-related matter when they heard gunshots and took action right away. . . .

The gunman stormed into the school over the lunch hour, with a scowl on his face and an automatic weapon in his hands.

"He looked really mad," said Mathieu Dominique, 17, who was having a cigarette by the door when the shooter burst in less than three metres away from him.

"He was really into (the) shooting. . . He looked like he really wanted to kill people. . . . It was like, bullet after bullet. It was like a burst - like at least six shots in two seconds."

Another student, Soher Marous, said the gunman said nothing when he entered the college.

"He had a stone-cold face, there was nothing on his face." Marous said. "He didn't yell out any slogans or anything. He just started opening fire. He was a cold-blooded killer."

The gunman continued firing away as he approached the cafeteria. Andrea Barone was sitting there after lunch with his girlfriend when he heard shots ring out.

"At first I thought it was a firecracker," said Barone, 17. "Then I turned around and I saw him. He was dressed in a black trenchcoat and I saw his hand firing a handgun in every direction."

Barone said all the students hit the floor to take cover.

A police officer emerged within seconds from a corner next to the cafeteria and fired on the gunman, he said. The shot missed. . . .

Delorme dismissed suggestions that race or terrorism played a role.

"There's no information that leads us to believe that it's something other than what happened at the scene."

When I went to the site, I couldn't find a picture of the gunman to confirm CNEWS's attribution, but I did find an ad for a black trenchcoat at the bottom of the main page. I don't know whether this ad inspired Gill to buy a trench coat, or even whether he responded to the ad, but the copy for the coat was interesting:

Tough Guy Leather TrenchCoat

Cool way to stay warm this winter! . . .

The aura of brooding masculinity is easy to achieve with this double-breasted full-length leather trenchcoat.


Wednesday, September 13, 2006

UN's New Attack on Law-Abiding American Gun Owners

Advanced Topics in Human Rights Law. Exam, Spring 2010. Question 4: One day, a woman goes to a gun store in Florida. She provides picture identification to the store owner, who then, pursuant to the National Instant Check System, uses his telephone to contact law enforcement, and ensure that the woman has no criminal record. The woman then purchases an expensive double-barreled shotgun, manufactured in the United Kingdom. She plans to use the gun for all lawful purposes, but primarily for sporting clays. In accordance with Florida law, she did not need to obtain a government license to possess the gun.

Two years later, a man breaks into her home at night. The woman reasonably (and correctly) believes that the man intends to rape and torture her. She also, correctly, believes that there is absolutely no possibility that the man will kill her. She shoots the man and kills him.

Summarize the human rights violations


1. The United Kingdom violated human rights by allowing the export of small arms to the United States for retail sale, under conditions which the U.K. knew (or through due diligence should have known) made it likely that the arms would be used to violate human rights. The Arms Trade Treaty was proposed in the fall of 2006 in the United Nations General Assembly by Australia, Argentina, Costa Rica, Finland, Japan, Kenya and the United Kingdom. Those nations, and many others, later ratified the treaty. The treaty makes it illegal to export small arms to a nation when it is likely that the arms will be used to violate human rights.

Almost all of the public discussion of the ATT focused on violations of "traditional" human rights — such as selling arms to the Burmese police, some which would be used to murder peaceful dissidents. However, the text of the ATT applies to all human rights violations, include newer human rights. The U.K. knew or should have known that its export of arms to the civilian market in the U.S. would lead to the human rights violations detailed below.

2. The United States and the State of Florida violated human rights by allowing the woman to possess a firearm without a license. The July 27, 2006, Final Report of the United Nations Special Rapporteur on the use of small arms in human rights violation stated:

16. Minimum effective measures that States should adopt to prevent small arms violence, then, must go beyond mere criminalization of acts of armed violence. Under the principle of due diligence, it is reasonable for international human rights bodies to require States to enforce a minimum licensing requirement designed to keep small arms and light weapons out of the hands of persons who are likely to misuse them....The criteria for licensing may vary from State to State, but most licensing procedures consider the following: (a) minimum age of applicant; (b) past criminal record including any history of interfamilial violence; (c) proof of a legitimate purpose for obtaining a weapon; and (d) mental fitness. Other proposed criteria include knowledge of laws related to small arms, proof of training on the proper use of a firearm and proof of proper storage. Licences should be renewed regularly to prevent transfer to unauthorized persons. These licensing criteria are not insurmountable barriers to legitimate civilian possession. There is broad international consensus around the principle that the laws and procedures governing the possession of small arms by civilians should remain the fundamental prerogative of individual States. While regulation of civilian possession of firearms remains a contested issue in public debate - due in large part to the efforts of firearms manufacturers and the United States of America-based pro-gun organizations - there is in fact almost universal consensus on the need for reasonable minimum standards for national legislation to license civilian possession in order to promote public safety and protect human rights. This consensus is a factor to be considered by human rights mechanisms in weighing the affirmative responsibilities of States to prevent core human rights violations in cases involving private sector gun violence.
Neither Florida nor the United States require a license to possess a gun. Nor did either government require any "proof" that the woman had "a legitimate purpose for obtaining a weapon." Notably, even if the woman had lived in an American state or city with more restrictive laws, there still would have been a human rights violation. Only a minority of jurisdictions have licensing system, and of those, many require a license only for hand guns (not long guns), and require a license only for purchase — rather than a license for continuing possession, which must be periodically renewed. Notably, even the most restrictive jurisdictions (e.g., New York City for handguns) do not require a purchaser to prove that she has a legitimate purpose. Hence, any export of firearms for civilian sale to the U.S. is per se human rights violation.

On August 21, 2006, the UN Human Right Council's Subcommission on the Promotion and Protection of Human Rights endorsed the Frey Report in toto, and recommended that the full Human Rights Council do so. The HRC later did so.

Although the Arms Trade Treaty has been signed by President Clinton, it has never been brought to the Senate floor for ratification. However, the ATT, as well as the decisions of the HRC, are relevant guides to the interpretation of U.S. and Florida constitutional provisions, including those which forbid the deprivation of life without due process. The principle that unratified treaties (such as the Convention for the Elimination of All Forms of Discrimination Against Women), or treaties to which the United States could not even be a party (such the African Charter on the Rights and Welfare of the Child) may be used in interpreting the human rights provisions of the U.S. Constitution is well-established by Supreme Court precedent. Significantly, the ATT and the HRC standards on gun control have been endorsed by several international bodies, as well as international organizations concerned with human rights, including Amnesty International, the World Council of Churches, and the International Action Network on Small Arms.

3. Finally, the woman's use of gun violence against the man was also a human rights violation. This gun violence was also accountable as a human rights violation by the State of Florida. According to the Frey Standards adopted by the UN Human Rights Council, self-defense is not a human right. Rather, "When small arms and light weapons are used for self-defence, for instance, unless the action was necessary to save a life or lives and the use of force with small arms is proportionate to the threat of force, self-defence will not alleviate responsibility for violating another’s right to life." (Para. 26). Moreover, "Because of the lethal nature of these weapons and the jus cogens human rights obligations imposed upon all States and individuals to respect the right to life, small arms and light weapons may be used defensively only in the most extreme circumstances, expressly, where the right to life is already threatened or unjustifiably impinged." Under international law, a jus cogens standard supersedes any contrary rule. The constitutions of the United States and of Florida, as well as numerous human rights treaties ratified by the United States, recognize the government's obligation not to take life unjustifiably. As the Frey Report details, a government's failure to enact sufficiently stringent gun control laws (discussed in item 2, above) and to enact sufficiently stringent restrictions on self-defense constitute a governmental failure to exercise due diligence, and consequently a violation of the right to life.

The laws of all American states allow the use of deadly force against certain violent felonies (include rape, torture, and mayhem) when the person being attacked reasonably believes that no lesser force will suffice. The use of deadly force against an attack which is not life-threatening is plainly disproportionate, and a violation of the HRC standards.

Florida--like many other American states--compounds its human rights violation by not requiring that the defender use less-than-deadly-force if lesser force would sufficient to stop the violent felony.

Extra credit: Although the law regarding private suits for human rights violations is still evolving, the estate or relatives of the man who was the gun violence victim might have a cause of action in a U.K. or European Court to sue the firearms manufacturer, and also to sue the United Kingdom itself. Further, the estate/relatives of the gun violence victim could sue the State of Florida, and the United States, for violating his right to life. The suit would be based on section 1983 of the Civil Rights Act, which encompasses private lawsuits for the deprivation of federal civil rights, including the right not to be deprived of life without due process. The American court, following the lead of the U.S. Supreme Court, could use international law standards, such as the HRC standards, in determining the scope of a government's duty regarding the right to life.

The federal Protection of Lawful Commerce in Firearms Act, and its Florida analogue, prohibit a lawsuit against the manufacturer, wholesaler, and retailer of the shotgun. Florida law prohibits a lawsuit against the gun violence perpetrator, because the perpetrator was acting within the scope of Florida self-defense law when she shot the victim. However, the estate/relatives could argue the all the statutes mentioned in this paragraph are unconstitutional, because the are contrary to the right to life guaranteed by the federal due process clause, as informed by the evolving standards of international human rights, as defined by the UN Human Rights Commission.

As the Frey/HRC observed, the "regulation of civilian possession of firearms remains a contested issue in public debate - due in large part to the efforts of firearms manufacturers and the United States of America-based pro-gun organizations." If the victim's human rights lawsuit were brought before a judge who was sympathetic to such manufacturers or organizations, it is unlikely that the suit would succeed. However, there are many judges who do not have such sympathies. Thanks to the flexibility of international law, and the evolving practice in U.S. constitutional interpretation of using international law guidelines, it would be possible for the lawsuits to result not only in monetary damages, but also in injunctive relief, and the judicial negation of the state and federal laws on self-defense and gun control which violate international human rights.

Computer Calculates Sentences in China: Reuters has the story here:
A court in China has used a software program to help decide prison sentences in more than 1,500 criminal cases, a Hong Kong newspaper said on Wednesday.

The software, tested for two years in a court in Zibo, a city in the eastern coastal province of Shandong, covered about 100 different crimes, including robbery, rape, murder and state security offenses, the South China Morning Post said, citing the software's developer, Qin Ye.

"The software is aimed at ensuring standardized decisions on prison terms. Our programs set standard terms for any subtle distinctions in different cases of the same crime," Qin was quoted as saying.

A Beijing-based software company had worked with the Zichuan District Court in Zibo since 2003 to develop the program and input mainland criminal law, the paper said.

Judges enter details of a case and the system produces a sentence, the paper said.
Of course, the fact that something is "computerized" doesn't tell us anything; the real question is how the computer is programmed.

  Thanks to Deven Desai for the link.
If You Can't Bring Makeup on an Airplane, the Terrorists Have Won:

New York magazine's August 28th issue has a short piece discussing how upset various fashion poobahs are that they won't be able to groom themselves properly on the plane on the way to European Fashion Week (whatever that is). Here is the choicest comment:

"Everybody is bummed because it's a really long flight and looking good is part of the industry," says Jane beauty director Erin Flaherty. "you're seeing all of your colleagues on the plane. I thnk everybody is going to have their most oversized sunglasss on. They should screen people in the airport better. It sems like such an ignorant solution. The terrorists got exactly what they wanted.

If fashion editors can't look their best on flights to Europe, the terrorists have won.

UPDATE: I'm flying today, and have to check my bag due to the new rules. Yuck. Worse yet, if I see some of my fellow law professors on the plane, I may not look my best!


Tuesday, September 12, 2006

Post-Rapanos Guidance in the Works:

The Chicago Tribune reports on the Environmental Protection Agency's efforts to develop a regulatory guidance to implement the Rapanos decision. The story is based on an Associated Press interview with Assistant EPA Administrator for Water, Ben Grumbles.

"Our overarching goal is to continue to protect wetlands under the Clean Water Act to the maximum extent allowable since the decision," Grumbles told The Associated Press in an interview. "Which tools are the best to use is a policy decision we haven't made yet." . . .

The agency soon will issue a "guidance" document that will offer the EPA's interpretation of what the Supreme Court decided, Grumbles said. The agency is working with the Justice Department to determine "how much stature to give certain pieces of the various five opinions," he said.

"We have no doubt that this interim guidance will help add clarity," he said. "We also have no doubt ... it won't be the end of the story either. We'll need to provide more details, and we're still reviewing whether or not to pursue a regulation in addition to the guidance."

Related Posts (on one page):

  1. Post-Rapanos Guidance in the Works:
  2. Debating Rapanos in Vermont:
Debating Rapanos in Vermont:

Tomorrow I will be debating the implications of the Supreme Court's decision in Rapanos v. United States at the Vermont Law School with Professor Patrick Parenteau. Specifically, our debate and discussion will focus on the implications of the decision for federalism and environmental protection.

Last month, I testified on the implications of the Rapanos decision before the Senate Environment and Public Works Subcommittee on Fisheries, Water, and Wildlife. The testimony is here. For some of my earlier posts on Rapanos, see here, here, and here.

Related Posts (on one page):

  1. Post-Rapanos Guidance in the Works:
  2. Debating Rapanos in Vermont:
Nations and People as Property:

One commenter writes in the Taiwan/China thread:

Accepting Taiwan as a "state" would be to give legitimacy to any separatist group that decided it wanted out of an existing nation. You would then have to grant legitimacy to Chechnya, the Tamils, the Kurds in Iraq, etc. How would we have felt if the world had decided to recognize the Confederacy during our own Civil War? We should stop protecting Taiwan and let it be returned to China, where it rightfully belongs.

Do I have that right -- we should stop protecting a democratic country, and let it be swallowed up by an oppressive dictatorship, because the democratic country, resumably including the country's citizens, "belongs" to the dictatorial one?

Any vision of international "property" that goes that far, it seems to me, is not one that we ought to respect. (I set aside the question whether sometimes we have to reluctantly accept it, since resisting it may involve more blood and treasure than we're willing to spend.)

Taiwan's Right to Representation in the United Nations:

Today the United Nations General Assembly convenes in its 61st session. Unfortunately, the legitimacy of the General Assembly, and of the United Nations itself, is undermined by the exclusion of the free, democratic, and independent nation of Taiwan from membership--in contravention of the UN Charter.

It might seem futile even to raise the issue of Taiwan's exclusion, since China is adamant that Taiwan will never be admitted to the United Nations. But even though a great power may persist for decades in trying to block the admission of an independent state to the UN, diplomatic circumstances and priorities can change, over time — as was demonstrated, for example, by the awarding of the China seat to the Mao regime in 1971 (following decades of U.S. opposition). In any case, it is important for the public and the diplomatic community to recognize the illegitimacy of Taiwan being denied its rightful place in the United Nations.

The UN Charter, article 4, states that "Membership in the United Nations is open to all other [non-founding] peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations." Taiwan is indisputably a "peace-loving" state — in marked contrast to China, which not only makes threats against Taiwan, but supplies arms and financial support to warlords, dictators, and genocidaires around the world, including in Sudan.

Since Taiwan is "peace-loving," it is necessarily entitled to UN membership, according to the UN Charter, as long as Taiwan is a "state" that is capable of carrying out various UN obligations. Plainly Taiwan is such a state.

Taiwan is self-governing. Indeed, Taiwan exercises far more complete self-government than has been exercised by some UN member states — such as Lebanon during its period of colonization by Syria, or the Warsaw Pact nations during the period of Soviet hegemony.

Taiwan encompasses a well-defined territory, consisting of the island of Taiwan itself, plus dozens of smaller islands in the Taiwan Strait, the most important of which are the Pescadores. In contrast, some UN member states (such as India and Pakistan) have disputed or unresolved borders.

Taiwan's government is sovereign over its entire territory. Again, some UN member states do not exercise full sovereignty over their nominal territories; for example, Pakistan has only limited control over the northwest frontier province and the federally administered tribal areas. Likewise, Lebanon's government is far from fully sovereign in southern Lebanon.

In addition, Taiwan's population of over 23 million is larger than most UN member states. Taiwan has developed a republican form of government, and achieved a very good record on human rights — putting Taiwan far ahead of scores of UN member states, and much closer to full compliance with the founding ideals of the United Nations, as well as the many UN human rights treaties and declarations.

As the Declaration of Independence explains, self-government is the foundation of legitimate sovereignty; accordingly, Taiwan's current democratically-elected government exercises a legitimate sovereignty which is not possessed by the dictatorship in China nor by the dozens of other dictatorships which have UN delegations.

Taiwan clearly fulfills the four criteria of de facto statehood, as articulated in Article 1 of the 1933 Montevideo Convention: "(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states." Notably, even if China succeeded in convincing every country in the world to terminate formal diplomatic recognition of Taiwan, Taiwan would still, legally, be an independent state; as Montevideo's article 4 declares: "The political existence of the state is independent of recognition by the other states."

In 1971, the United Nations gave the China seat at the UN to the Mao Zedong dynasty, the seat having formerly been held by the Chiang Kai-shek dictatorship. The UN's decision was reasonable: the Chiang regime had lost the Chinese civil war in 1949, and, although the regime still made a nominal but ridiculous claim to rule China, it was clear in 1971 that for the last 22 years, the sovereign in China had been Mao, not Chiang, and there was no prospect of that situation changing. Resolution 2758 addressed solely the question of which regime was entitled to hold the "China" seat, and did not purport to resolve anything regarding Taiwan's independence.

The Mao dynasty in China has, since 1949, claimed sovereignty over Taiwan, but never has actually exercised a shred of sovereignty. Fifty-seven years of actual independence is more than sufficient for the Taiwan to deserve recognition as an independent state.

In terms of the right to admission to the United Nations, all that matters is Taiwan's status now as an independent, peace-loving state. Even if Taiwan had been part of China for 3,500 years, the most recent 57 years of independence entitle Taiwan to UN membership. However, it should be noted that the historical and international law record is more supportive of Taiwan's independence than of China's claim to sovereignty over Taiwan.

The history of Chinese government is very old, dating back to the Shang dynasty in the middle of the second millennium BC. Many Chinese dynasties rose and fell in the following centuries — but not until three thousand years later did any government on the continent of Asia claim to rule even a portion of the island of Taiwan. (However, the Quemoy Islands, which are very close to the Chinese coast, and which are currently ruled by the Taipei government, were historically part of China.) In 1683, China's government did establish some control over western Taiwan, and this control lasted for two centuries. For almost all of this period, the Chinese explicitly denied that they were sovereign over eastern Taiwan. One purpose of the denial was to avoid taking responsibility for the pirates who operated from eastern ports; and the Chinese's government's inability to suppress the pirates is one indication that China was correct in claiming not to exercise sovereignty in the east.

Only for 17 years (some other historians say 8 years) in the late 19th century did China actually declare sovereignty over all of Taiwan. This is trivially short period in the scope of Taiwanese and Chinese history.

Significantly, China renounced any claim to sovereignty over Taiwan, in the 1895 Treaty of Shimonoseki, and Taiwan was ceded to Japan. Japan ruled the entire island of Taiwan from 1895 to 1945 — that is, three times as long a China ruled the entire island. Ever since the sixteenth century, Japan had claimed sovereignty over eastern Taiwan. Thus, Japan's claim of sovereignty over one side of the island is actually two centuries longer and more senior than China's claim of sovereignty over the other side. Today, we would hardly claim that Japan's historical record of sovereignty over Taiwan entitles Japan to rule Taiwan against its will; a fortiori, the weaker record of Chinese sovereignty cannot give China a right to rule Taiwan against its will.

In the 1951 San Francisco Peace Treaty, which formally ended World War II, and the 1952 Treaty of Taipei (between Japan and Taiwan), Japan renounced all claims to Taiwan. Significantly, neither treaty stated that Taiwan was now part of China.

In the unsigned 1943 Cairo Declaration, Roosevelt, Churchill, and Chiang stated that "Manchuria, Formosa [Taiwan's Japanese name], and the Pescadores, shall be restored to the Republic of China." Although it is doubtful that Cairo created binding international law, the literal effect of the language is consistent with Taiwan's current, independent existence as the "Republic of China," and inconsistent with Taiwan being subsumed into the "People's Republic of China"; certainly the Communist tyranny which Mao hoped to establish was not an intended beneficiary of the Cairo Declaration. To the contrary, the intent of the parties of the Cairo Declaration would be to construe each and every word against a Mao regime and its successors. The Cairo Declaration is also referenced in the Potsdam Declaration.

The fact that China persists in a claim of sovereignty of Taiwan, and sometimes makes military threats, cannot be considered a proper reason for denying UN membership to Taiwan. After all, North Korea and South Korea were each admitted to the UN, even though the North Korean tyranny claims sovereignty over South Korea, and legally remains in a state of war with South Korea. (The Korean War was ended by an armistice, which was executed in the expectation that a peace treaty would be negogiated later, but there has been no such treaty.)

During a 1998 visit to China, President Clinton said that he opposed admitting Taiwan to the United Nations. The U.S. House of Representatives promptly rebuked him, voting 390-1 for a Resolution (H. Con. Res. 301) by which Congress "affirms its strong support, in accordance with the spirit of the Taiwan Relations Act, of appropriate membership for Taiwan in international financial institutions and other international organizations."

Rather than kowtowing to the Chinese dictatorship, all freedom-loving nations and peoples should stand in support of Taiwan's right to self-determination and to membership in the United Nations.

Further reading: Parris Chang & Kok-ui Lim, "Taiwan's Case for United Nations Membership," UCLA Journal of International Law and Foreign Affairs (1997).

Law Student Information on Jobs and Clerkships: A lot of upper-level law students spend a lot of time applying for and then worrying about jobs, and particularly law firm jobs and clerkships. In light of that, I'm happy to plug two sites that have popped up recently to help students share feedback on these processes: The Clerkship Notification Blog, hosted by Yale ISP fellow Katherine McDaniel, and, hosted (I think) by the whiz kids of the XO board.

  As you might guess, the first site is about clerkships, and the second is about summer associate offers. The two sites have a different focus, but they share the same goal of pooling information to make the job process a little bit less mysterious. If you're a 2L or a 3L who has sent in a bunch of applications and is waiting to hear back, you might want to check them out. And if you know of other sites like this that are worth mentioning, please leave a comment in the comment thread.
Interesting History of Miranda v. Arizona: It's available here from the latest issue of American Heritage magazine. Thanks to Adam White for the link.
Filing Lawsuit Under a False Name Leads to Dismissal: Judge Carnes of the Eleventh Circuit just published a pretty interesting decision on whether a district court can dismiss a civil case with prejudice because the plaintiff had filed his complaint and litigated the case up to trial using a false name. Here's the opening paragraph:
If, as the Bible says, "[a]n honest answer is like a kiss on the lips," Proverbs 24:26 (N.I.V.), a pleading founded on a lie is like a kick in the gut. The question this appeal presents is whether a district court can dismiss a case with prejudice because the plaintiff filed and litigated his complaint under a false name.
The Eleventh Circuit's answer: Yes, it can. Thanks to Howard for the link.
"A Pop Quiz for Constitution Day,"

from the Chronicle of Higher Education.

A Conservative Case Against Racial Profiling:

A few years ago, Ilya's colleague, Nelson Lund, published "The Conservative Case Against Racial Profiling in the War on Terrorism," in the Albany Law Review. In it he explains why conservatives should be reluctant to allow government officials to use race as a proxy for other characteristics when seeking to identify potential terrorists. Both conservatives and liberals alike, he suggests, should not want government officials to use race in this manner.

Here is part of the introduction and summary of the article:

By now, most of us have had the opportunity to see little old ladies stopped for humiliating random searches at the boarding gates in the airports, while far more dangerous looking men have walked down the jetways without so much as a second look from the security screeners. Conservatives, in particular, have skewered the government for persisting with these apparently silly, and quite possibly very dangerous, policies. This is consistent with the general tendencies of conservatives to be more supportive than liberals of aggressive law enforcement techniques and to be less likely to believe that police officers are prone to racist behavior. Political correctness, obsessive pandering to racial sensitivities, bureaucratic mindlessness-- whatever the diagnosis, the cure is taken to be obvious: Stop the silliness, we're told, and get serious about protecting us from another attack, which we can be quite sure will not be carried out by septuagenarian Norwegian-American women.

In my opinion, this new enthusiasm for racial profiling is misguided. My argument has three main points.

First, racial profiling or racial stereotyping is something that all of us do all the time. There are good reasons why we do it, and there are also good reasons why we need to make an effort not to do too much of it.

Second, free societies--and especially free markets--foster profound forces that tend to curb irrational racial stereotyping. These mechanisms certainly do not work perfectly, but they do work.

Third, governments are highly prone to excessive racial stereotyping and are largely immune from the forces that keep this practice in check in the private sector. For that reason, government policies that entail racial profiling should be treated with the greatest skepticism. Not only do they threaten the legitimate interests of various racial groups, but they tend to distract government agencies from alternative policies that are likely to work at least as well.

Certainly, we should not pander to left-wing racial mau-mauing if doing so will leave us vulnerable to another catastrophe like 9/11. But by the same token, let's also avoid pandering to dysfunctional bureaucratic imperatives that have their own potential for disaster. In short, I agree with the conservative commentators who think that the war on terrorism is a serious business that we should all be treating in a serious way. But I disagree with the conclusion that racial profiling is likely to make an important contribution to that effort.

The most important reason for being skeptical about racial profiling is one that ought to be shared by the left and right alike: it threatens to undermine the important national goal of making all races equal under the law. I will focus here on an additional reason that should be especially appealing to conservatives: the danger of government abuses.

Government use of race in certain circumstances may well be constitutional, and some racial profiling may even pass strict scrutiny, but that does not mean that it makes for sound public policy.

UPDATE: Eric Muller asks what is "conservative" about Nelson Lund's argument. That is a fair question. Without seeking to preempt any answer that Professor Lund may have, here is how I see it.

A common conservative critique of governmental decision-making is that, as a general rule, government entities are not subject to the various forces, including market competition, that tend to discipline decision-making in the private sector. Thus, as a general rule, conservatives are more hostile to government provision of services that can be provided by the private sector or government preemption of private risk-management decisions than are liberals.

In his article, Lund suggests that the very pathologies of government bureaucracy that conservatives criticize in other contexts should make them wary of racial profiling by government actors, even in the context of the war on terrorism. Further, he argues that insofar as conservatives believe that market competition discourages racial discrimination in the private sector, there is no equivalent market pressure to constrain the use of racial profiling by government actors in counter-terror efforts. Liberals and others may accept these arguments, but I think it is fair to say that the analysis Lund develops in his paper proceeds from premises about the nature of government decision-making that are typically viewed as "conservative."

Related Posts (on one page):

  1. A Conservative Case Against Racial Profiling:
  2. Liberals, Conservatives, and the Use of Racial and Ethnic Classifications:
Democracy and International Law:

There is now an ongoing and very prominent debate about the extent to which international law should be interpreted to override US domestic law. In this new paper, Northwestern law professor John McGinnis and I argue that the debate so far overlooks an important consideration: the undemocratic nature of the political processes by which most international law is generated. Here's an excerpt from the abstract:

The potential displacement of domestic law by international law has become a major topic of debate among both scholars and jurists. But the growing literature on the subject has largely ignored the fact that most international law is generated by undemocratic political processes. In this Article, we seek to fill this void by systematically analyzing the impact of the democracy deficit of international law on the desirability of allowing international legal rules to supplant American domestic law.

International law that has not been ratified by domestic political processes - what we refer to as raw international law - has a particularly severe democracy deficit because it is not subject to any kind of electoral accountability. In addition, international lawmaking processes are generally less transparent to the public than domestic ones, further undermining democratic control of its content. We contend that the democracy deficit of raw international law is a strong consideration weighing against allowing it to displace American domestic law.

In this paper we try to combine John McGinnis' expertise in international law with my knowledge of democratic theory. Whether we have suceeded in getting the best of both worlds or have instead combined the worst is for readers to judge!

Harvard to End Early Admissions: The New York Times has the story here. The introduction:
Harvard University, breaking with a major trend in college admissions, says it will eliminate its early admissions program next year, with university officials arguing that such programs put low-income and minority applicants at a distinct disadvantage in the competition to get into selective universities.

Harvard will be the first of the nation's prestigious universities to do away completely with early admissions, in which high school seniors try to bolster their chances at competitive schools by applying in the fall and learning whether they have been admitted in December, months before other students.
George Mason Graduate to Become the First Muslim Woman in Space:

On September 18, Iranian-American telecom entrepreneur Anousheh Ansari will become the first Muslim woman in space. She is a liberal Shiite Muslim who left Iran because "[d]espite her aptitude in mathematics and science, it would be next to impossible for her to study these subjects at an Iranian university because the . . . regime did not consider them suitable fields of study for women." This should give the mullahs in Teheran a fit.

Even more importantly, Ansari is a class of 1988 graduate of George Mason University! Hopefully, this will give us as big a boost as the basketball team's recent trip to Final Four.

UPDATE: I have changed "secular Shiite" to "liberal Shiite" to eliminate possible terminological confusion pointed out in the comments.


Monday, September 11, 2006

Liberals, Conservatives, and the Use of Racial and Ethnic Classifications:

I have long been fascinated by the fact that most conservatives support racial and ethnic profiling for national security and law enforcement purposes, yet are categorically opposed to the use of racial or ethnic classifications for affirmative action. Most liberals, by contrast, take exactly the opposite view. Both ideologies oppose racial and ethnic classifications as a matter of principle in one area, yet defend them on pragmatic grounds in another. Consider, for example, this recent Weekly Standard article by Philip Terzian defending ethnic profiling in airport security:

[T]here is no harm in acknowledging that the sort of person who is likely to be a terrorist is not just any citizen who happens to walk into an airport, but someone with specific, comprehensible characteristics of age, national origin, sex, religion, and behavior. So far as we are aware, no jihadist plots have been perpetrated against Americans by little old ladies from Dubuque, but several terrorist attacks--in particular, 9/11--have been carried out by young Muslim men of Middle Eastern origin. No, not all young men, not all Muslims, not all people from the Middle East, are jihadists or potential terrorists. Of course not. But common sense, and the overwhelming preponderance of evidence, should make it obvious to airport security personnel where to concentrate their energies.

Terzian is saying that ethnic profiling of airline passengers is justified because, on average, a young Middle Eastern Muslim male is more likely to be a terrorist than members of other groups. This, despite the fact that not all (or even most) Middle Eastern Muslims are terrorists, and there are of course some terrorists (Richard Reid, Tim McVeigh, etc.) who belong to other groups. The harm to innocent Middle Eastern Muslims affected by profiling is presumably outweighed by the benefits to national security.

Defenders of affirmative action, of course, make a very similar argument. On average, an African-American or Hispanic applicant to college is more likely to be a victim of racism and to suffer from the historical legacy of Jim Crow and slavery than a white applicant is. Thus, it makes sense to give preference to applicants from these groups, despite the fact that some of the beneficiaries will be people who haven't suffered much from racism, and some of the members of the non-preferred group may themselves be disadvantaged. Defenders of AA also claim that the average black or Hispanic applicant contributes more to campus diversity than the average white one, although there are of course many individual exceptions to this rule. Paraphrasing Terzian, an AA defender could say:

There is no harm in acknowledging that the sort of person who is likely to be a victim of prejudice is not just any citizen, but someone with specific, comprehensible characteristics of race, national origin, or ethnicity. So far as we are aware, few whites from Dubuque have been systematically victimized by racial prejudice. But numerous African-Americans, Native Americans, and Latinos have. No, not all African-Americans, not all Latinos, not all American Indians, are suffering from the effects of past and present discrimination. Not all will contribute more to diversity than the average white applicant. Of course not. But common sense, and the overwhelming preponderance of evidence, should make it obvious to college admissions officers where to concentrate their energies.

In both cases - terrorism profiling and affirmative action - race or ethicity is used as a proxy for other characteristics in order to help overcome the problem of imperfect information. If we knew who is a terrorist and who isn't, there would be no argument for security profiling. If we knew each college applicant's degree of victimization by racism or degree of contribution to diversity, the case for racially based affirmative action would be greatly weakened. Since we don't know these things and it would be difficult or impossible to find out, race or ethnicity are used as a crude proxy for them.

Some of the disagreement between liberals and conservatives may be due to a difference of opinion on the relative efficacy of the two policies. For example, liberals may think that racially based affirmative action is effective in achieving its goals, while terrorism profiling is not; conservatives may think the opposite. However, this does not account for the large number of conservatives who oppose affirmative action because they think it is intrinsically wrong, regardless of its effectiveness. And ditto for the large number of liberals who oppose ethnic profiling for national security purposes irrespective of how effective it might be. There are several possible ways to distinguish between security profiling and affirmative action. What is striking to me, however, is that most liberals and conservatives seem to completely ignore the potential contradiction between their thinking on these two issues.

UPDATE: I am embarrassed to say that I was unaware of my colleague Nelson Lund's paper on this subject until it was pointed out by Jonathan Adler in his post responding to mine. Nelson's article does precisely what I urge other conservatives to do in my post: it considers the implications of the conservative critique of affirmative action for the conservative defense of ethnic profiling for national security purposes. However, Nelson wrote the article in part precisely because most other conservatives have simply ignored the tension between their positions on these two issues. It's my impression that most continue to do so, despite Nelson's well-taken admonitions. The same, of course, is true of most liberals.

Related Posts (on one page):

  1. A Conservative Case Against Racial Profiling:
  2. Liberals, Conservatives, and the Use of Racial and Ethnic Classifications:
Nevada Supreme Court Quietly Reverses Its Decision That Authorizes Suspension of Constitutional Procedural Requirements:

I blogged about that earlier July 2003 decision here (the earlier decision itself is here; thanks to commenter Joe Zwers for the pointer):

Nevada appears to be in the middle of a fiscal crisis: Its constitution more or less requires a balanced budget (art. 9, sec. 2(1)). There's a shortfall. The Legislature hasn't funded the budget. Various state functions, including the educational system, are right now (as of July 1) unfunded. And the Nevada Constitution (art. 4, sec. 18(2), enacted by voter initiative in 1996), requires a two-thirds vote to increase taxes, which has contributed to the budget deadlock. (I have no independent knowledge of this; I'm paraphrasing the court's statement of the facts.)

The Nevada Supreme Court has (1) ordered the Legislature to enact a budget, and (2) suspended the operation of the two-thirds majority requirement. That's right, the two-thirds majority requirement is right there in the Nevada Constitution:

2. Except as otherwise provided in subsection 3, an affirmative vote of not fewer than two-thirds of the members elected to each house is necessary to pass a bill or joint resolution which creates, generates, or increases any public revenue in any form, including but not limited to taxes, fees, assessments and rates, or changes in the computation bases for taxes, fees, assessments and rates.

3. A majority of all of the members elected to each house may refer any measure which creates, generates, or increases any revenue in any form to the people of the State at the next general election, and shall become effective and enforced only if it has been approved by a majority of the votes cast on the measure a such election.

But the Nevada Supreme Court has held that the Legislature must ignore this requirement.

The Nevada Constitution does mandate (art. 11, secs. 1, 2, and 6) that the legislature create and fund public schools, though it's silent on the level of funding that the legislature must provide. Most state constitutions do impose such an affirmative obligation on the state government, and many have been read as providing affirmative judicially enforceable rights; I do not object to that conclusion here. But the Nevada Supreme Court has held that the constitutional provision requires the state legislature to fund the schools through means that are themselves unconstitutional.

The Court recognizes this, and provides the following reasoning:

When a procedural requirement that is general in nature prevents funding for a basic, substantive right, the procedure must yield. Here, the application of the general procedural requirement for a two-thirds majority has prevented the Legislature as a body from performing its obligation to give life to the specific substantive educational rights enunciated in our Constitution.

But this makes very little sense. First, the court just assumes that procedural requirements are somehow less important than substantive rights. How so? Some of the most important rules in our constitutions — majority vote for most laws, the unanimity requirement on criminal juries (in many jurisdictions) or at least the supermajority requirement (in all jurisdictions), the procedural constraints on which chamber may initiate tax legislation, which chamber may approve appointments, and so on — are procedural. These are tremendously important; courts may not waive them just in order to serve the constitution's substantive commands. Rather, American constitutions require that substantive entitlements be provided while respecting the prpcedural rules. [For more, see here.]

Today, in a case in which the proponents of an initiative wanted the court to relax a different procedural state constitutional requirement for circulation of initiatives, the court said no, holding that the requirement had to be enforced strictly. And in the course of this, the court said:

We next address the parties’ arguments about whether a “strict adherence” or “substantial compliance” standard should apply to evaluating whether the committee satisfied Article 19, Section 2(4)’s mandate. The opponents argue that strict adherence should apply here, where the constitutional requirement at issue is designed to protect the initiative process. The committee, on the other hand, advocates for a substantial compliance standard to apply in cases that do not involve constitutional “authentication” requirements. We conclude, as set forth below, that Article 19, Section 2 must be adhered to strictly.

And since the committee has made a distinction between different types of constitutional procedural requirements, urging this court to adopt a looser standard of compliance for some constitutional requirements, while maintaining a strict standard for constitutional authentication requirements, we take this opportunity to clarify Governor v. Nevada State Legislature, wherein this court, in construing the Nevada Constitution, distinguished between "procedural" and "substantive" requirements, concluding that procedure must yield to substance if the requirements conflict. We expressly overrule that portion of the opinion. The Nevada Constitution should be read as a whole, so as to give effect to and harmonize each provision.

Well, better late than never, I suppose, though I hope the "should be read as a whole, so as to give effect to and harmonize each provision" doesn't give the court wiggle room to repeat the Governor v. Legislature (also known as Guinn v. Legislature) error in the future.

Legal Times Essays on Changing National Security Law: Interesting stuff, available here.
9/11 and the Law, Five Years Later: Today marks five years since the 9/11 attacks, and I wanted to offer a few thoughts on the big picture of how 9/11 has shaped the law. This is an enormous topic, and my views on this are pretty tentative, but I'd like to suggest that 9/11 has had a significantly smaller impact on the law than most of us expected five years ago.

  During the week following the September 11 attacks, most major newspapers ran stories on the very plausible prospect that 9/11 could lead to a radical overhaul of civil liberties in the United States. The articles included sober discussions by law professors of whether we would have internment camps for Muslims, citing the camps for Japanese during World War II, or whether there would be a suspension of habeas corpus, citing the precedent of the Civil War. Fortunately for all of us, this didn't happen. While there were some aggressive law enforcement steps taken, particularly with regard to immigration offenses, for the most part the changes in existing statutory and constitutional law have been minor.

  Granted, it took a while for the press to catch up to this reality. For two or three years following 9/11, it was often repeated that the USA Patriot Act had dramatically changed civil liberties laws in the United States. Everyone seemed to think that the Patriot Act had changed everything, with the caveat that no one seemed to know what was actually in the Patriot Act. In time, though, more and more people have begun to realize that the Patriot Act (fortunately) was never anything like the hype. And I think we can all agree on the basic constitutional picture: the constitutional law "on the books" as it relates to civil liberties is pretty much the same today as it was on September 10, 2001.

  The key thing that has changed, it seems to me, is primarily the nature of the claims of executive authority that the Administration has made since 9/11. Some of these claims were made out in the open, such as claims relating to the detention of enemy combatants. Others were made in secret, such as the constitutional and statutory claims justifying the NSA domestic surveillance program. If you're going to assess the impact of 9/11 on the law, it seems to me that one of the big and difficult issues to consider is the future of these arguments. In 10 years, or 20 years, are the strong Article II claims going to be accepted as a basic part of the constitutional separation of powers? Or are they going to be thought of as a relic of particular figures from the Bush Administration?

  We don't yet know the answer to that, of course. If I had to guess, though, I would guess that the latter is probably more likely than the former. I suspect there is only one vote on the current Supreme Court for the strong Article II theory. Further, my sense is that the existing political constituency for a strong view of Article II is a short-term constituency; it presumably ends as soon as a Democrat is elected President. (When Hillary becomes Commander-in-Chief in 2012, will the folks at Powerline Blog zealously defend the Commander-in-Chief power?) Given that, it would not be surprising to me if today's debates over Article II prove somewhat short-lived.

  Where does that leave us? To me it suggests that the impact of 9/11 on the law is still largely an open question, but that as a general matter the impact has been notably less significant than most of us would have predicted on the afternoon of 9/11. Maybe this will change in the future: Senator Specter's NSA bill is still pending, and a few Supreme Court vacancies might alter the picture. But on the five-year anniversary of 9/11, I'm struck more by how little the law has changed than by how much.

  That's my impression, at least. I look forward to your comments.

  UPDATE: I have fiddled with the second paragraph to make it more accurate. Thanks to Craig Oren for flagging the issue in the comment thread.
American Indians' Views of the Redskins:

I tend to largely agree with Jonathan Adler's post on this; but I thought that I'd add some data, for whatever it's worth (I realize that different people have different views of how relevant or dispositive such data is):

1. A 2002 Sports Illustrated survey reports:

Asked if they were offended by the name Redskins, 75% of Native American respondents in SI's poll said they were not, and even on reservations, where Native American culture and influence are perhaps felt most intensely, 62% said they weren't offended. Overall, 69% of Native American respondents--and 57% of those living on reservations--feel it's O.K. for the Washington Redskins to continue using the name. "I like the name Redskins," says Mark Timentwa, 50, a member of the Colville Confederated Tribes in Washington State who lives on the tribes' reservation. "A few elders find it offensive, but my mother loves the Redskins."

2. The Annenberg Public Policy Center National Annenberg Election Survey 2004 (conducted in 2003-04), reports:

Most American Indians say that calling Washington’s professional football team the "Redskins" does not bother them, the University of Pennsylvania’s National Annenberg Election Survey shows.

Ninety percent of Indians took that position, while 9 percent said they found the name "offensive." One percent had no answer. The margin of sampling error for those findings was plus or minus two percentage points.

Because they make up a very small proportion of the total population, the responses of 768 people who said they were Indians or Native Americans were collected over a very long period of polling, from October 7, 2003 through September 20, 2004. They included Indians from every state except Alaska and Hawaii, where the Annenberg survey does not interview. The question that was put to them was "The professional football team in Washington calls itself the Washington Redskins. As a Native American, do you find that name offensive or doesn’t it bother you?"

3. There are obvious problems with polling American Indians -- the difficulty of getting reliable data from such a small group (which the Annenberg pollsters solved by asking a vast number of people, and which the Sports Illustrated pollsters solved by oversampling in census tracts which have a high fraction of American Indians, and then weighing the responses accordingly), the uncertainties about who really is an American Indian, the danger of undersampling Indians who are too poor to have telephones or alienated enough from white culture that they want little to do with pollsters, and so on. Nonetheless, while this may not be perfect data, it's the best data that I've seen, and it's certainly better than people's perceptions of what Indians think, which are of course prone to much more serious problems of representativeness (since such perceptions may be heavily skewed by one's own preconceptions, by one's circle of friends, or by the tendency to hear more from activists -- in any group -- than from rank and file members).

4. Finally, while I'd have thought that most Indians would indeed be offended by the term "Redskins," given that it has often been used as a pejorative, the results that the surveys report are not at all implausible: Given that naming a team after some person or group is usually a sign of respect -- one would rarely name a team after something that one thinks is weak or contemptible (the U.C. Santa Cruz Banana Slugs are a rare and facetious exception) -- it seems quite reasonable that many Indians would focus on that more than they would on disrespectful uses of the same term in other contexts.

Related Posts (on one page):

  1. American Indians' Views of the Redskins:
  2. Hail to the Redskin Potatoes:
More on English Arrest for Distributing an Anti-Homosexuality Pamphlet

(the incident I discussed in the Suppression of Dissent post late last week): This purports to be the leaflet that led to the arrest; I have no reason to question that assertion, and I will rest the remainder of the post on that assertion, though please do let me know if the assertion is mistaken.

I certainly don't agree with the moral views expressed in the leaflet, but my sense is that this is probably about as calm, polite, and reasoned a way of expressing those views as is possible. Of course many people would still find it offensive, because of the ideas that the speech expresses; but preventing such speech really does requiring suppressing the ideas, rather than just insisting that they be expressed in less incendiary ways. If the distribution of such speech is illegal in England, then English law has indeed gone a long way to undermining the ability to discuss such moral matters. (I should note that the place of distribution, a place where many listeners would be expected to be quite offended, doesn't strike me as changing this result: The ability to express one's views that certain behavior is wrong must include the ability to express those views to people whose behavior one is trying to change, at least subject to rules that give each individual recipient the power to stop further individualized speech to them without interfering with speech to others.)

Why does this matter? Well, I think that generally speaking people ought to be free to express their views even in harsh, insulting ways. I think the "God Hates Fags" picketers' speech shouldn't be suppressed because of its content, morally repugnant as I find both its form and its content. (Whether content-neutral restrictions on picketing in front of funerals are constitutional is a separate matter, which I discuss here.)

Nonetheless, there's a case to be made that it's possible to try to suppress incendiary language -- such as vulgarities, epithets, and the like -- while still allowing people to express whatever ideas they want. I tend to agree that such rules generally can't be set up in ways that are legally administrable, and that coming up with such rules, especially ones enforced through the criminal law, may lead to the restriction of ideas and not just the form in which they're expressed. (Compare Justice Harlan's view in Cohen v. California with Justice Stevens's view in the FCC v. Pacifica Foundation plurality.) Yet it's conceivable that such a rule might be acceptable (and necessary) in at least certain contexts; at the very least, it can't be as easily condemned as rules that really do try to suppress speech because of the ideas it expresses, rather than the form in which it's expressed.

But here English law can't use this defense; nor can it use another occasional defense of bans on "extremist speech," which is that little is lost to public debate from suppressing the speech of the violent fringe (again, I don't accept this defense myself, but it's one that sometimes is made). Here English law is being used to suppress speech because of its ideas, and not because it's put in a needlessly rude or vituperative way; and it's being used to suppress speech that expresses a longstanding aspect of an important school of moral thought (even if we think that aspect is morally mistaken).

That makes the restriction, I think, particularly dangerous and particularly noteworthy. I would oppose such criminal laws even if they were applied to cruder expression, and to expression of less traditionally mainstream views. But even those who are open to restrictions on form that supposedly don't interfere with the communication of ideas, or to restrictions on extremist views that supposedly don't interfere with important discourse within a broad mainstream of views, should be troubled by what's going on in this case.

Thanks to John the Methodist (Locusts & Honey) for the pointer.

Related Posts (on one page):

  1. English Charges Against Anti-Homosexuality Leafletter Dropped:
  2. More on English Arrest for Distributing an Anti-Homosexuality Pamphlet
  3. Suppression of Dissent::
Commemorating 9/11 at Case:

At Case, the Institute for Global Security Law and Policy is sponsoring three events to commemorate September 11. This morning at 9:00am, Institute director Amos Guiora led the campus in a moment of silence and the planting of 3,000 flags on the University quad in memory of the victims of the attacks. At noon, Ohio Homeland Security Deputy Director Richard Rawlins will discuss the impact of September 11 on the state of Ohio in a public lecture in the law school. Then at 4:30pm, the Institute is sponsoring a panel and roundtable discussion on how the events of September 11 have affected various areas of the law. This event is also at the law school. Additional details on the events are here and here.

CIA Officers Seek More Insurance:

An interesting story in today's Washington Post:

CIA counterterrorism officers have signed up in growing numbers for a government-reimbursed, private insurance plan that would pay their civil judgments and legal expenses if they are sued or charged with criminal wrongdoing, according to current and former intelligence officials and others with knowledge of the program.

The new enrollments reflect heightened anxiety at the CIA that officers may be vulnerable to accusations they were involved in abuse, torture, human rights violations and other misconduct, including wrongdoing related to the Sept. 11, 2001, attacks. They worry that they will not have Justice Department representation in court or congressional inquiries, the officials said.

The Bush Administration is seeking legislation that would help protect CIA officers from liability. Another way to protect CIA officers from liability (at least in the future) would be to prohibit them from engaging in excessive or [potentially] illegal conduct.

From the end of the story:

Robert M. McNamara Jr., the CIA's general counsel from 1997 to November 2001, said he advised station chiefs to buy the insurance. "The problem is that we are the victims of shifting winds here," McNamara said he told the officers. "I can't sit here and tell you in all cases that I will be able to defend you."

However, McNamara's predecessor as CIA general counsel, Jeffrey H. Smith, said: "I'm deeply troubled that CIA officers have to buy insurance. . . . There should be clear rules about what the officers can and can't do. The fault here is with more senior people who authorized interrogation techniques that amount to torture" and should now be liable, instead of "the officers who carried it out."

UPDATE: Several have commented that I was too flip and simplistic when I wrote: "Another way to protect CIA officers from liability (at least in the future) would be to prohibit them from engaging in excessive or illegal conduct." Guilty as charged (and I've edited the statement above). The point I was trying to make is that the creation of standard operating procedures and protocols can serve to reduce the potential for liability of CIA officers and others who have to make decisions about the use of coercive force as part of their jobs. This is not a question of passing a law, but generating internal rules and procedures to minimize the likelihood of certain types of excesses. Assuming a good fiath effort to operate within accepted legal norms, the clearer the rules about when one may engage in potentially tortuous behavior, such as the use of force, the less likely it is that such conduct will result in liability for the officer in question. As the Post reported:
Several former intelligence officials who said CIA officers do not need insurance because they can rely on the government to defend their lawful actions depicted the growing number of policies as a barometer of the uncertainty officers have of the legality of their work.

A recently retired CIA officer who said he had not bought insurance contended that "if an individual does get sued in the course of their official duties, then you get the biggest law firm in the world to step in" -- the Justice Department. Justice regulations allow defending federal workers if the conduct is within the scope of an employee's job and doing so is in the government's "interest."

Alas, some in the Bush Administration sought clever ways to redefine what was permissible conduct so as to excuse potentially tortuous (if not criminal) behavior, and this seems to have increased the potential liability exposure of CIA officials and others engaged in certain counter-terror activities. My poorly expressed point was that an alternative approach would not have left as many CIA officers exposed to liability.

Hail to the Redskin Potatoes:

I am usually unmoved when activist groups attack the names of various athletic teams for alleged ethnic or racial insensitivity. I don't believe that names like the Cleveland Indians, Atlanta Braves, Florida Seminoles, or Fighting Illini are inherently disrespectful or demeaning. And, from the survey data I've seen in the past, it seems that most Native Americans feel the same way (and I would reconsider my views if I learned otherwise). There is, however, one prominent exception: the Washington Redskins. If there are racially insensitive name in sports, this is it.

Washington plays its first game of the season tonight, and the Washington Post uses the occastion to suggest it's time to change the name.

The Washington Redskins start their season tonight and, as most sports fans will attest, it is a time to think of endless possibilities. . . . We share in the excitement, but in truth we also are embarrassed to embrace a team that is so terribly named.
The editorial also suggests a test for determining whether a team name is offensive:
We take team owner Daniel M. Snyder at his word that he sees the nickname as an honor, and we appreciate how hard it is to abandon well-loved traditions. By the same token, it really is not up to the offender to characterize the nature of the offense. We can't imagine Mr. Snyder, or anyone else for that matter, sitting in a room of Native Americans and referring to them as Redskins.
By this standard, many other sports names, such as those mentioned above, are okay, but "Redskins" clearly flunks the test — unless, of course, the team mascot is changed to a redskin potato.

Related Posts (on one page):

  1. American Indians' Views of the Redskins:
  2. Hail to the Redskin Potatoes:
The Once and Future Lobby:

Jeffrey Birnbaum takes a look at the growth of lobbying in Washington, D.C.

Every 10 years or so, reformers have sought to rein in these paid persuaders, but the influence of lobbyists has only expanded. Today, twice as many registered lobbyists -- about 30,000 -- ply their trade than did so just six years ago. And overall spending on federal lobbying has nearly doubled, to $200.2 million per month in 2005 from $116.3 million per month in 1999. By all accounts, business is booming.

Don't expect this trend to abate anytime soon. As government grows, and becomes more complex, the demand for lobbyists only increases. Even companies that once shunned active lobbying have given in and acquired their own hired guns, even if only to defend their interests from predation by others.

Government has become so complex that only experts -- say, ex-congressional staff members turned lobbyists -- can decipher and navigate it. Anyone who wants to penetrate the system has little choice but to hire lobbying firms. And for good reason: Washington is no longer the insular and distant regulator it was before World War II. It insinuates itself into almost every facet of Americans' lives, from school assessments to corporate accounting to homeland security.

In turn, lawmakers have come to rely on lobbyists to provide much of their campaign cash, most of the information and voter support that propel their legislative initiatives, and many of the off-hour perks that keep them well-traveled and well-fed. These benefits are so valuable that Congress -- even faced with an ornery, anti-Washington electorate -- is poised to pass, as soon as this week, a sliver of an already weak lobby-reform bill, and discard anything that would limit its contact with lobbyists. Almost no one on Capital Hill wants to discourage the sugar daddies on K.

This is how Washington works today, and so long as the federal government is a growth industry it is not going to change. The larger the government, the greater the demand lobbyist representation.

"For the more than 30 years I've been around here, people have always complained about lobbyists," said Wright H. Andrews Jr. of the lobbying firm Butera & Andrews. "But they don't understand. My own mother didn't understand. She cried when I told her what I was going to do." But he explained, "After people have been here a while, they find out that the lobbying community is an essential part of the legislative process."

Careful With Those Comparisons:

I was quite struck by this comment on the Jonathan Rauch on the Bush Presidency thread:

Conflating existential threats like 1930's Germany and Japan with today's terrorists is simply not serious. As others have noted, in this time of "great danger", you're 66 times more likely to die by drowning while swimming or in the tub than of terrorism (based on National Academy of Sciences' Institute of Medicine figures).

That isn't to say that it isn't a problem, but hyping fear for political payout is (and I've been saying this since 9/11, and I live in NYC) not only wrong, but in fact doing the terrorists' work for them.

I do think that's important to keep a sense of perspective about various threats — but this analysis (which I note because I'd heard similar assertions in the past, though they were rarely quite as striking as this one) doesn't really work.

To begin with, note that Germany and Japan weren't existential threats to the United States in the 1930's (I assumed from the context that the commenter was speaking of their threats to our country, not to, say, Russia or China). I know of no evidence that in the 1930s Germany and Japan had serious designs on American independence, or that any reasonable Americans thought that they did. Until the nuclear bomb was proven feasible, there was no way that they could have invaded the U.S., or otherwise jeopardized our existence or our nationhood. Of course, people could have feared that decades down the line a Germany and Japan that had conquered Europe and Asia could have turned their attention to America and seriously threatened our national existence; but if something at that level of long-term speculation counts as an "existential threat," then a great deal qualifies as "existential threat" — one can certainly come up with similar 50-years-down-the-road speculations about militant Islam.

As to "66 times," that's the first time I'd heard that statistic, and some quick searches uncovered no evidence for it. But I do know how to use the CDC's invaluable WISQARS system, and it reports to me that from 2001 to 2003 there were under 3500 accidental drownings (of all sorts, which I suspect includes boating as well as swimming and bathtubs) per year in the U.S. Even if one looks at the last 6 years, one still gets only about 7 times fewer (rather than 66 times fewer) people killed in the U.S. through Islamofascist terrorism than in drownings.

But more fundamentally, it makes no sense for anyone, whether the NAS Institute of Medicine or anyone else, to say that you're "X times more likely to die by drowning while swimming or in the tub than of terrorism." No-one can know what the actual likelihood of dying in an Islamofascist attack against the U.S. might be. It could be that 2001-06 is representative of the future, and we'll have four-digit death tolls once every six years or so, and quiet otherwise. It could be that the future will be considerably more peaceful, whether because we've adequately disrupted al-Qaeda, because the lethality of the World Trade Center attacks was a fluke, or for whatever other reason. Or it could be that the future will be considerably more lethal, with smallpox terrorism, nuclear terrorism, or who knows what else. An "X times more likely to die by" statistic just can't be sensibly used to compare an unknown but not implausible risk of a death toll in the five to seven digits (or more? who knows?) with a nearly constant stream of under 3500 deaths per year.

So by all means resist what you see as excessive or unjustified responses to the risk of terrorism. But don't pooh-pooh the risk using senseless comparisons.


Sunday, September 10, 2006

Legal Questions "Short-Circuited" By Hudson v. Michigan: In last June's decision in Hudson v. Michigan, the Supreme Court held 5-4 that the newly-constitutionalized common-law "knock and announce" rule — a rule that an officer executing a warrant normally has to knock, announce his presence, and then wait a bit before forcibly entering a home — is not enforced with an exclusionary remedy. In an opinion handed down on Friday, Judge Moylan of the Maryland Court of Special Appeals points out the very interesting questions that would have been raised in suppression hearings if Hudson v. Michigan had gone the other way:
  This case had promise of leading us to a hidden treasure trove of intriguing nuances about the phenomenon (or phenomena) of knocking and announcing, had not that inquiry been unceremoniously short-circuited by Hudson v. Michigan, 547 U.S. ____, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006).
  A vintage conundrum has always been that of whether there is any sound when a great tree falls in a forest but no animal ear is within range of the percussive impact. The answer depends, of course, upon one's conceptualization of sound. The same spirit of intellectual inquiry leads us to wonder whether it makes any difference if a policeman enters a home without knocking if there is no one within to hear a knock in any event. That answer will depend upon the purpose of the knock. Is it to give notice to an occupant of an impending police entry or is it only a mechanical drill movement in a required manual of arms?
  Another intriguing question, also rudely aborted by Hudson v. Michigan, is that of how to knock (or should one knock) on an open door. And how does one knock if there is no door at all? How does one knock on the flap of a tent? Should one knock on a classical Japanese paper house if the result would be a fist through the wall? Should the police carry a knocking board with them as standard equipment? Will we ever be reduced to measuring a knock's decibel level or to evaluating its acoustical carrying power? Was it for this that the embattled farmers stood at Concord Bridge? We were well on the way to drowning in contentious urging such silliness and triviality when Hudson v. Michigan administered a merciful coup de grace.
  Intertwined with these questions, of course, is the tantalizing semantic teaser of whether "knock and announce" is a single indivisible phenomenon or a double-barreled requirement in the unforgiving conjunctive. If the announcement of police presence is loud and clear, is a subsequent (or an antecedent) knock a relentlessly additional Fourth Amendment prerequisite, or is it merely an exclamation point? If the giving of notice is the animating purpose, does not the announcement alone do the trick? Is a police entry after a proclamation, with a bullhorn, "Put your hands in the air; we're coming in," unreasonable without an attendant knock? In short, is not the pairing of the words "knock and announce" nothing more than a linguistic convention akin to "goods and chattels" or "give and bequeath"?
  Interesting law geek questions — and no doubt the kinds of questions that helped get five votes for the view that suppression of evidence should not hinge on the answers.

  Thanks to for the link.
Sunday Song Lyric: Storm Large will not be the lead singer of the TV-fab supergroup "Supernova," but she seems to have struck a chord with her recent performance of her song "Ladylike." the song may even become Ann Bartow's new anthem. Whether the song qualifies as a new feminist fight song, it's a fun, rockin' tune. The TV-edit lyrics as performed on Rock Star are below, but the R-rated version is easy to figure out.
I'm sorry about your girl
Little center of the universe
Axis turns the world
And you need a jet to get to her
Oh, the way she moves, attracts all kinds of focus
From all over the room
She smokes, not ladylike. She's not ladylike

Mister, mister, big and tall
You take the world and spin it
You don't mess around at all, no
You're in it, to win it
Then you can get the gold
And you go make some more
So you can win the girl
Cuz baby that's who you've been working for

She's big and she's proud
And she knows what the world is about

Hey, what the what is ladylike
If ladies like to do what the what they like
Just like you, yeah. Just like you.
Look out man here comes another one

Well I'm so sorry about your wife
She's up and off and running
Going on with her own life
Word to your mother
She's stunning
And there's a part of you
That's just a little scared of her
Axis turns the world
And you need a jet to get to her

She's great and she knows
How to wear the pants
And the rest of your clothes

What the what is ladylike
If ladies like to do what the what they like
Just like you, yeah. Just like you.
Look out man here comes another one

On my knees or on all fours
From underneath
Hear me roar
A studio version of the song performed by Storm and her band, the Balls, can be heard here, and you can pre-order the CD single here.