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Saturday, September 23, 2006

French intelligence report on Osama bin Laden's possible death:

The French newspaper L'Est Republicain has an excerpt from a DGSE (French intelligence agency) report that claims that Osama Bin Laden may have died of typhoid fever on August 23. U.S. English-language media have not reprinted the actual text of the September 21 DGSE report excerpted by L'Est Republicain. So I will do so here. For those of you who read French, here's the actual language from the DGSE report reprinted by the paper:

Selon une source habituellement fiable, les services saoudiens auraient désormais acquis la conviction qu'Oussama Ben Laden est mort. Les éléments recueillis par les saoudiens indiquent que le chef d'Al-Qaïda aurait été victime, alors qu'il se trouvait au Pakistan le 23 août 2006, d'une très forte crise de typhoïde ayant entraîné une paralysie partielle de ses membres inférieurs. Son isolement géographique, provoqué par une fuite permanente, aurait rendu impossible toute assistance médicale. Le 4 septembre 2006, les services saoudiens de sécurité ont recueilli les premiers renseignements faisant état de son décès. Ils attendraient, d'obtenir davantage de détails, et notamment le lieu exact de son inhumation, pour annoncer officiellement la nouvelle.

Loosely translated, the DGSE is saying that, according to a "generally reliable" source, Saudi intelligence believes that Bin Laden died of typhoid fever on August 23 in Pakistan. Because of "geographic isolation" caused by efforts to evade attempts to capture him, Bin Laden could not get any medical assistance. The Saudis, according to the DGSE's source, are waiting on further details of Bin Laden's death, and especially "the exact location of his burial" before making an official announcement.

French and US officials are denying that Bin Laden's death has been confirmed. However, French President Jacques Chirac implicitly confirmed L'Est Republicain's claim that this a genuine DGSE report considered sufficiently reliable to be transmitted to the "highest levels of the French government," including the President, the Minister of Defense, and the Minister of the Interior. According to Chirac (quoted in the CNN story linked above), "I was rather surprised to see that a confidential note from the [General Directorate for External Security] was published, and I have asked the minister of defense to start an investigation immediately and to reach whatever conclusions are necessary."

Does this mean that Bin Laden is really dead? I have no idea. Certainly, I don't know how "reliable" the DGSE's Saudi source really is, or how good the Saudis' own sources on Bin Laden's condition and whereabouts are. Moreover, premature reports of Bin Laden's death have surfaced before, only to be discredited. However, it is still noteworthy that the DGSE seems to believe there is a good chance that Bin Laden really has gone on to his rendez-vous with the 72 virgins in the sky.

UPDATE: This AP report noted by a commenter contains various quotes by US, French, and Pakistani officials claiming that the DGSE report remains unconfirmed. However, they also implicitly reaffirm that the report itself is genuine and don't claim that it is actually false. What to make of this? Given the history of false claims of OBL's death, it is more likely than not that he is still alive. But we won't know for sure until either 1) we discover the corpse or 2) Bin Laden makes another video. Stay tuned!

4 Comments
Ron Bailey Comes Clean:

Science writer Ronald Bailey, a longtime skeptic about whether global warming presents an apocalyptic threat, responds to charges that he and other climate "skeptics" are nothing more than paid stooges for evil corporations. As Ron notes, his longtime skepticism of the climate threat can not be explained by his financial interest.

if corporate shilling doesn't explain my stubborn skepticism about global warming, what does? Looking back over my reporting on the issue, I would argue the consistent theme is my reliance on temperature datasets as a way to either validate or invalidate the projections of computer climate models. Up until the last year or so, the satellite data and weather balloon data pointed to relatively modest global warming much below the trends predicted by most climate models. If those trends were correct then there was no imminent "planetary emergency." When the trends were shown to be incorrect last year, I "converted" into a global warmer. . . .

And then there is also the matter of my intellectual commitments. We all have them. Since I work for a self-described libertarian magazine that should indicate to even the dimmest reader that I tend to have a healthy skepticism of government "solutions" to problems, including government solutions to environmental problems. I have long argued that the evidence shows that most environmental problems occur in open access commons-that is, people pollute air, rivers, overfish, cut rainforests, and so forth because no one owns them and therefore no one has an interest in protecting them. One can solve environmental problems caused by open access situations by either privatizing the commons or regulating it. It will not surprise anyone that I generally favor privatization. That's because I believe that the overwhelming balance of the evidence shows that centralized top-down regulation tends to be costly, slow, often ineffective, and highly politicized. As a skeptic of government action, I had hoped that the scientific evidence would lead to the conclusion that global warming would not be much of a problem, so that humanity could avoid the messy and highly politicized process of deciding what to do about it. Unhappily, I now believe that balance of evidence shows that global warming could well be a significant problem. . . .

So I didn't get any stacks of $20 dollar bills in brown paper bags from ExxonMobil (don't believe any photoshopped pictures you may see to the contrary). I also don't think that I was duped by paid-off scientists. Except for climatologist Robert Balling, as the embedded links above show, the sleuths at Exxonsecrets have uncovered no payments to the scientists I chiefly relied upon in my reporting over the years. But was I too skeptical, demanding too much evidence or ignoring evidence that cut against what I wanted to believe? Perhaps. In hindsight I can only plead that there is no magic formula for deciding when enough evidence has accumulated that a fair-minded person must change his or her mind on a controversial scientific issue. With regard to global warming it finally did for me in the last year. That was far too late for many and still too early for others. . . .

So then not a whore, just virtuously wrong. Looking to the future, I can't promise that my reporting will always be right (no reporter can, but I will strive to make it so), but my reporting has always been honest and I promise that it always will be.

54 Comments
What Does Dudley Drive?

A recent Washington Post article on the looming fight over President Bush's nomination of Susan Dudley to head the White House Office of Information and Regulatory Affairs (OIRA) noted Dudley's "personal commitment to environmental stewardship," citing that Dudley and her husband "drove hybrid cars before hybrids were cool."

The various groups opposing Dudley's confirmation were not impressed. Under the heading "A Hybrid Car, An Environmentalist Does Not Make," OMB Watch's "Reg Watch" pooh-poohed Dudley's driving choice and editorialized that Dudley's personal commitment to environmental conservation is irrelevant -- indeed "bizarre" -- if not matched by a commitment to government mandates and regulations

In Dudley's worldview, there's no inconsistency between making the personal choice to save on gas, while opposing standards to keep our air clean and our cars fuel efficient. Seems bizarre? It's called Dudleynomics.
Apparently to the folks at OMB Watch it is "bizarre" to believe that not every good action must be mandated by the government. The only "inconsistency" on Dudley's part is recognizing there is a difference between a virtue and a requirement (and, by extension, between a sin and a crime). If that's an "inconsistency," than I'll gladly join the ranks of the inconsistent.

15 Comments

Friday, September 22, 2006

Ambiguous/Surprising/Unintuitive Periodical Titles:

I just came across an article in Graft, which turns out to be a journal about organ and cell transplantation. It reminds me of once running across Bridge Magazine, which is related to arts and the disabled. (There are other magazines with that name, too.) I once saw a reference to Reentry Magazine, which is of course aimed at people who work in the parole system, though I haven't found further evidence of this journal's existence. Any other suggestions?

And, yes, I realize the category is not crisply defined. But you get my drift, I'm sure.

37 Comments
"Nevada in Danger of Losing Its Respectability":

So writes Jacob Sullum, in Reason's Hit & Run:

[T]he group opposing the [Nevada marijuana legalization] initiative is called the Committee to Keep Nevada Respectable. Gambling, prostitution, and 24-hour liquor sales are one thing, but pot smoking? That would really give the state a licentious reputation.

Sullum's post is actually primarily about a recent survey that shows surprising support for the initiative.

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Obstructing Nominees:

For those who have forgotten that Republicans are just as capable of obstructing Presidential nominees as Democrats, consider the current "controversy" over the confirmation of Andrew von Eschenbach as Commissioner of the Food and Drug Administration. As the WSJ editorial page noted today (link for subscribers), two GOP Senators -- South Carolina's Jim DeMint and Louisiana's David Vitter -- have threatened to block von Eschenbach's confirmation unless they get their way on their pet issues, withdrawing RU-486 from the market and drug reimportation, respectively. According to the Journal: "This is an abuse of their 'advice and consent' powers under the Constitution and a danger to the health of Americans, who need a confirmed FDA Commissioner with full authority to manage that bureaucracy." That may be a bit hyperbolic, but the overall sentiment is correct: Von Eschenbach deserves a vote.

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Alito's Picks:

Supreme Court Associate Justice Samuel Alito predicts the Philadelphia Phillies will secure the National League wild-card slot for the Major League Baseball playoffs, and says that slugger Ryan Howard should be the league MVP.

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NAACP Chapter Claims That It's Illegal for Jewish-Owned Medical Clinic to Close Saturdays:

So at least it appears from this news story; I'm trying to get my hands on the exact complaint, but so far I haven't gotten it. (If anyone knows more about this, please let me know.)

The [Spring Valley, New York] chapter of the NAACP has filed a complaint accusing the Ben Gilman Medical and Dental Clinic of religious discrimination for closing on Saturdays.

The complaint, filed Sept. 6 with the state's Division of Human Rights, alleges that the clinic's practice of remaining closed Saturdays in observance of operators' Jewish Sabbath, unlawfully imposes their religious beliefs on others....

Willie Trotman, president of the Spring Valley branch of the National Association for the Advancement of Colored People, said the purpose of the complaint was to have the clinic open on Saturdays.

Those who work -- more than 80 percent of the clinic's clientele are Hispanic or black, according to a letter the clinic sent to the Human Rights Commission earlier this year -- would find it convenient to visit their doctors on a Saturday when they had the day off, Trotman said yesterday....

Because the complaint is confidential, [county Human Rights Commissioner S. Ram] Nagubandi could not comment on its specifics. However, he confirmed that a complaint had been filed by the NAACP and said his office -- acting as an agent for the state's Division of Human Rights -- would investigate the matter....

In a copy of the complaint provided by the NAACP, Hoffman, Milner and the clinic were said to "invoke their religion" in order to engage in "disparate treatment" of people of different faiths. It also alleges that the respondents failed to accommodate other religious beliefs....

If the complaint is as the newspaper describes it, then it's quite legally unfounded -- in fact, its theory is itself religiously discriminatory.

Some religious discrimination laws likely do bar clinics from discriminating against patients based on the patients' religious beliefs. Some of them (though not the relevant federal and New York laws) might require clinics to take steps to accommodate patients' religious beliefs, by exempting patients from clinics' generally applicable rules when the rules violate the patients' religious beliefs and the exemption isn't that burdensome on the clinic. (For instance, if a clinic requires patients to be photographed for their files and a patient has a sincere religious objection to such a requirement, the clinic may be required to exempt the patient from that objection unless there's a really important reason for the photograph.) But closing Saturdays neither treats patients differently because of their religion, nor requires patients (as a condition of getting service) to do something that violates their own religious beliefs.

Moreover, clinics are entirely free to close Saturdays just because the doctors (like people in other businesses that are closed weekends) want the day off. And if they're free to close Saturdays for secular reasons, they're equally free to close Saturdays for religious reasons. Allowing clinics to close for secular reasons but not religious ones (on the spurious grounds that closing Saturdays "unlawfully imposes their religious beliefs on others") would be discrimination against religion, since it would treat religiously motivated conduct worse than identical secularly motivated conduct.

Nor does the fact that the doctor's office gets federal funds, which the story also mentions as a basis for the NAACP chapter's complaint, change the analysis. The federal government might be able to require that offices that get federal funds remain open six days a week, regardless of their motivation for closing, and this might lead to a religious accommodation demand on the part of the doctors, likely citing the federal Religious Freedom Restoration Act. But in the absence of such a requirement, doctors remain free to close whatever days they please, whether they want to close Wednesdays to play golf, Saturdays or Sundays to play with their kids, or Saturdays to observe the Sabbath.

Thanks to Joel Grossman for the pointer.

Related Posts (on one page):

  1. Jewish-Owned Clinic's Decision to Close Saturdays Interferes With Religious Freedom --
  2. NAACP Chapter Claims That It's Illegal for Jewish-Owned Medical Clinic to Close Saturdays:
62 Comments
Fred Goldman's Attempt to Seize O.J.'s Right of Publicity:

The Complaint is here, and it's very interesting. The theory is simple: O.J. owes Goldman, according to the Complaint, $38 million (the original $19 million wrongful death award plus interest). O.J. has a valuable asset -- his right of publicity, which is to say the right to distribute merchandising containing his name, likeness, signature, voice, and the like (e.g., autographs, T-shirts, coffee mugs, and the like), the right to license these items for merchandising, and the right to license these items for advertising. Goldman, the theory goes, may therefore seize the asset to help satisfy the judgment, just like he could seize real estate, tangible property, patents, copyrights, and the like.

If Goldman prevails, then Goldman would presumably be able to license people to make O.J. T-shirts and the like, and to sell them. He could license the use of O.J.'s name and likeness in commercials (the licensee couldn't force O.J. to act in the commercials, but it could use preexisting pictures, hire lookalikes, and so on). He could license O.J.'s names and likeness for derogatory uses (O.J. toilet paper?), though some such derogatory uses might already be permissible to everyone (not just the holder of the right to publicity or his licensees) under the not-yet-fully-established parody / transformative use exception to the right.

He could also stop O.J. from doing all these things, since O.J. would no longer own his own right of publicity (just as an author who loses the copyright in his work is no longer allowed to make copies or derivative works of the work). And of course Goldman could also just refuse to license or sell anything -- even if the right is seized to help satisfy O.J.'s monetary obligation, once Goldman owns the right he has no obligation to make money from it -- but keep others, including O.J., from doing the same.

It's an interesting theory, and it sounds credible to me, especially if the right of publicity is treated as a property right akin to copyright or patent. Yet it does seem a little weird, especially given that the likeliest use of the seizure will be simply to stop O.J. or anyone else from making any money from his right of publicity, without making any extra money for Goldman, who I doubt really wants to make a living off O.J. memorabilia (unless he does want to go into the O.J. toilet paper business). Do any of our readers have expertise on the subject that they'd like to share?

48 Comments
Ruhl's rules of legal scholarship hierarchy:

can be found here. All of us at VC have done 0. I hope we've avoided 1, but I'm not sure. Most student note work is 2 or 3, but so is a lot of professors' work. I've mostly done 4 through 6, with forays into 7 and limited incursions into 8. Competent 9 and 10 are beyond my reach.

UPDATE: I've corrected the title of this post to reflect that the linked post on legal scholarship appearing on Jim Chen's Jurisdynamics blog was actually written by Professor J.B. Ruhl. It makes for a catchier title, anyway. (Thanks go to Ryan Scott for the catch.)

FURTHER UPDATE: Professor Larry Solum has an interesting critique of Ruhl's Rules here.

Related Posts (on one page):

  1. Eric Muller's Hierarchy of Legal Scholarship
  2. Ruhl's rules of legal scholarship hierarchy:
10 Comments

Thursday, September 21, 2006

Dear Mr. Fantasy:

Of all the things I've ever written in my day, I suspect this one will be read by far more people than anything else.

This is a situation where I would sincerely love it if someone could prove me wrong.

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Law Student Interview Tips:

David Bernstein, Orin, and David Lat offer some useful tips to law students inteviewing with firms. I would add one more: do whatever you can to convey the impression that you're enthusiastic about taking a job with the firm (without lying, of course). In my case, I lost out on many offers from major DC firms during my first fall interview season because they suspected, based on my resume, that my real goal was to become an academic and I didn't make much of an effort to convince them that I had a genuine interest in practicing law at a firm.

The next year, I made a special effort to display more enthusiasm and study up on the fine points of the various firms' practices, and did much better. The academic thing still cost me some offers because, well, I really did want to be an academic and the firms weren't stupid enough to completely ignore that! But it was much less of a problem once I showed them that I had a real interest in their work too.

Even if practicing at the firm of Larry, Moe & Curley is not really your idea of a dream job, when interviewing with them try and act like it is. Perhaps it's an obvious point, but I'm one of many students who didn't get it until chastened by painful experience.

Related Posts (on one page):

  1. Law Student Interview Tips:
  2. My Funniest Law Firm Interview Story:
16 Comments
Parents' Rights, Teenagers, and Blood Donation:

I just gave blood today, and thought about how it would be good to one day persuade my kids to do the same. Naturally, this should happen only when they're physically big enough to safely donate, by which time they should be old enough to appreciate what they're doing and why it's good. But I'd like to start as young as possible, given these constraints, since I think it'll be a valuable educational experience, and may encourage good habits and attitudes. And my sense is that, setting aside size and unusual health conditions, such a donation would basically be perfectly safe.

So I wondered: To what extent would I be legally allowed to engage in this sort of parental education? Various Web sites report that many states set a minimum age of 16 or 17, and that strikes me as an unwarranted interference with parents' choices. But my quick look at California law discovered only a provision that specifically allows donation with parental consent at age 15 or older (and without consent at 17 or older), and doesn't specifically prohibit donation at an earlier age. Can anyone point me to laws (in California or elsewhere) that do indeed prohibit donations, even with a parent's consent (possibly with exceptions for emergency targeted donations)? Is there some other reason why blood banks would be reluctant to accept donations from minors who have the parent's consent? Is there some argument that I'm missing for why such donations should be barred?

By the way, I don't think that such prohibitions are unconstitutional (though I suppose that under Pierce and Meyer a decent though not overwhelming case could be made in favor of that position), just that they are -- unless I'm missing some important objection -- improper intrusions into a legitimate parental decision about the child's moral education.

48 Comments
My Funniest Law Firm Interview Story:

It's Fall 1989, my second year of law school, and I'm interviewing with a very nice woman who works, if I remember correctly, at the D.C. office of a major Chicago law firm. She says, "I see you're interested in constitutional law, we do a lot of interesting constitutional litigation at our D.C. office." Seeing the chance to let her talk about her and her firm, I say, "really? Like what?" She says, "Some of the partners represent a consortium of American newspapers. They are petitioning the FCC to publish rules banning phone companies from instituting systems that could carry classified ads" (this is pre-World Wide Web, and they were apparently worried about something like the French system that existed at this time). I said, "oh what's the constitutional theory?" She said, "Well, the idea is that the newspapers rely on classified ads for a large proportion of their revenue, and if they faced competition from telephone-based classified, they would go out of business. For the FCC to allow this would be to basically force the newspapers out of business, which would violate the First Amendment." Obviously without thinking too hard, I laughed heartily, and responded, "No, really, what's your theory?" Awkward silence.

Needless to say, I didn't get a callback. I was going to call this post "My Most Embarrassing Interview Story," but I can't say that I was, or am, embarrassed, by my natural reaction to an extremely frivolous legal theory. [Note: By which I mean, I really thought she was joking. Only when I actually started working at law firms did I find that (1) lawyers occasionally charge corporate clients hundreds of dollars an hour to pursue outrageous legal theories, and (2) lawyers, once they've propounded a theory, often become completely bound to it. One lawyer I worked for actually gave a client an answer before looking it up, and then asked me to research the question. Turns out, there were fourteen cases on point, thirteen of which directly contradicted what the client had been told, and one of which was ambiguous. Instead of graciously admitting to the client that he was wrong, the lawyer asked someone else to re-research the same question, no doubt charging the client yet again to discover that he was mistaken.]

Related Posts (on one page):

  1. Law Student Interview Tips:
  2. My Funniest Law Firm Interview Story:
73 Comments
Columbia U. Dean Invites Ahmadinejad to Speak:

He accepted the invitation, but the talk isn't going through, for what appears to be some combination of security concerns and concerns over bad publicity for Columbia.

Who in a position of authority at Columbia would daft enough to invite Holocaust denier/genocidal maniac/most notorious and powerful anti-Semite of the current age/etc. Ahmadinejad (who, by the way, I saw on t.v. claiming today claiming that the 35,000 people who protested his speech at the U.N. were actually one hundred paid Zionist stooges) to speak? Lisa Anderson, dean of Columbia's School of International and Public Affairs.

Where have a I heard Prof. Anderson's name before? Ah, yes. Columbia President Lee Bollinger invited her to serve on a committee whose purpose was to whitewash investigate charges that some of Columbia's Middle Eastern Studies professors (including, according to this article, at least one of her own former students) had engaged in unfair treatment of Jewish, Israeli, and pro-Israel students.

Res ipsa loquitur.

P.S. I'd like to believe it was just a coincidence that Ahmadinejad's speech was originally scheduled for tomorrow, with the Jewish holiday of Rosh Hashanah starting early that evening, thus making it impossible for a large percentage of Jewish students who would be going home for the holiday or otherwise preparing for it to protest.

Related Posts (on one page):

  1. More on Columbia and Ahmedinejad:
  2. Columbia U. Dean Invites Ahmadinejad to Speak:
49 Comments
Interview Tips: Over at Above the Law, David Lat has some pretty useful interview tips for law students interviewing at firms. I would add one more: Don't be annoying. Annoying is bad.
10 Comments
Dylan, Citations, and Related Matters

Eugene's interesting post about the use of pop lyrics in judicial opinions and law reviews reminded me of something I wrote a long time ago (November 1995, to be precise). It was actually written in response to a suggestion made by none other than our own Eugene Volokh, who once had offhandedly remarked that it would be interesting to see what you could find in Lexis or Westlaw if you searched for pop lyrics . . . I was writing a monthly column for the American Lawyer, on Internet law, at the time, and seized on the idea. I reread it after seeing Eugene's post, and, a bit to my surprise, think it's held up pretty well, so here it is.

"Technolog! & (Meaning /3 Life)"
David G. Post, American Lawyer, November 1995


I assume that even the technophobes among my readers are familiar with online full-text searching for legal precedent, and would admit, however grudgingly, that this system represents at least something of an advance over previously-available methods, and that it has transformed legal practice (just as the development of the previously dominant method, the West Digest system, represented a profound advance over prior solutions to this information gathering problem and itself helped to transform American law).

If you do not actively partake of the pleasures on online searching, however, you may not be aware of the availability of a rather remarkable tool: "natural language" search engines which the commercial database providers (e.g., Lexis and Westlaw) have implemented in recent years. Natural language searching allows you to use, as your search query, an English sentence describing your problem, to which the search program applies a kind of "fuzzy logic" to determine the cases or other documents most likely to be relevant to your question (which are then presented to you in order of decreasing assumed relevance). For example, if you want to know "Does the Interstate Commerce Clause prohibit a State from imposing a 'Use Tax' on Out-of-State Purchases," you simply type the phrase in as written, and your search retrieves a set of cases that the search algorithms has determined are most relevant to the question -- in this example, cases such as Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575, Associated Industries of Missouri v. Lohman, Director of Revenue of Missouri, 114 S. Ct. 1815, and the like.

But if this technology is so smart, I wondered, perhaps it can really help us plumb the darker, more mysterious, more inscrutable questions that have long pre-occupied philosophers and poets. Inspired by the recent fanfare surrounding the opening of the Rock and Roll Hall of Fame, I decided to put the technology to the ultimate test--to see if it could help us glimpse how the US Supreme Court has been grappling with the truly profound issues of our time.

For example, can we look to the Court for guidance in understanding "how many roads a man must walk down, before you call him a man?" Indeed we can. Running this search on the Supreme Court database using both Lexis' "Freestyle" and Westlaw's "Westlaw is Natural" features -- and, as Dave Barry likes to say, I am not making this up -- I realized that the Court has considered this question on a number of occasions. Lexis pointed me immediately to Dred Scott v. Sandford, 60 US 393, discerning in over 100 pages of dense legalese the true holding of the case: States cannot call certain men "men" irrespective of the number of roads they may have walked down. (Lexis also pointed me towards the Telephone Cases, 126 US 1, apparently interpreting my question as one asking whether the monopoly granted to AT&T impermissibly interferes with the right to actually "call" such a man a man).

(Interestingly, Westlaw directed me in a different, though equally fruitful, direction; the first case presented for my consideration was Terry v. Ohio, 392 US 1-- a reference, of course, to its holding that the number of roads that a man may walk down is subject to limitations based upon the reasonable suspicions of law-enforcement personnel. Mr. Dylan, I would assume, will be gratified to learn that this question has been put to rest.

Emboldened by the success of this initial attempt, I decided to press on. Who, in fact, wrote the Book of Love? The Court's teachings here are somewhat more controversial. The highest relevancy ranking on this query was obtained by A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' et al. v. Atty. General of Massachusetts, 383 US 413, an indication, perhaps, of both the Court's rather narrow view of the meaning of "love," and the precarious position of the Book of Love within the First Amendment. Book of Love authorship was also addressed in Ginzburg v. US, where the editor of Eros magazine was unsuccessful in his attempt to persuade the Court that his particular publication qualifies for Book of Love status.

But why, then, do fools fall in love? This question has apparently never been squarely presented to the Court, although cf. Jenkins v. Georgia, 418 US 153 ("community standards" should be applied to this question) and Shearson/American Express et al. V. McMahon, 482 US 220, 253 (at least as far as Securities Act is concerned, "Congress did not take away from the citizen 'his inalienable right to make a fool of himself,' it simply attempted to prevent others from making a fool of him," quoting L. Loss, Fundamentals of Securities Regulation 36 (1983)).

Do you wanna dance under the moonlight? See Barnes v. Glen Theatre, Inc., 401 US 560 (holding that should you choose to engage in such activity, it will be considered expressive conduct "within the outer perimeters of the First Amendment").

Is there a song in my heart? This unearthed a particularly interesting trove of material, from the obvious (Campbell v. Acuff-Rose, 114 S.CT.. 1164, the "2 Live Crew" case, holding that the fair use privilege may apply if the song in your heart is a parody of earlier copyrighted efforts) to the intriguing (Wallace v. Jaffree, 472 US 38, the "moment of silence" case, holding that if the song in your heart is of a religious character, the State may not, consistent with the Establishment Clause, require you to sing it, even to yourself), to the deeply mysterious (Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 115 S.CT.. 2338, holding [?] that the organizers of the St. Patrick's Day parade may choose to prohibit the singing of certain songs but may not exclude individuals who hold particular songs exclusively in their heart).

And finally -- entering the query "what is the meaning of life?" pulled up, appropriately enough, both Furman v. Georgia, 408 US 238 (holding the death penalty unconstitutional), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S.CT.. 2791 (upholding the constitutional right to abortion) -- which, when you think about it, may indeed represent the closest that the Court has ever come to thinking about this question (though whether the Court has answered the question, and what that answer might be, I leave for others to determine).

There may actually be serious issues lurking behind all of this: new forms of search technology undoubtedly, over time, influence the way the law develops and the way that it is understood, by bringing certain materials to the fore (and making other materials harder to unearth. The West Key Number system, for example, is an almost Platonic conception of ideal legal categories, and was at least partially self-perpetuating inasmuch as the decision to file a case under one category necessarily made it more likely that it would be cited as precedent for a one set of questions while simultaneously making whatever light it might shed on other legal questions -- light that the indexers in Minneapolis may not have been able to detect -- far harder to uncover. As natural language searching becomes more widespread, might we not want to know more about the underlying technologies, at least to enable us to assess the ability of these tools to find truly "relevant" material?

But let's leave the serious questions for another day. For now, I hope it is enough to have given you ammunition the next time your teenager has the temerity to suggest that you are not working on anything really interesting or, like, really important.

6 Comments
Fake Online Profiles Prompt Call for Reviving Criminal Libel Law:

The Bergen Record reports:

Assemblyman Kevin O'Toole, R-Wayne, has drafted a bill making it a crime to knowingly post false information about another individual on a Web site. [The text has not yet been finalized, so I couldn't get my hands on it -EV] ...

In February, someone created a phony profile of 12-year-old Monirae Hickey of Nutley on MySpace.com, posting her name, cellphone number and a photo of a provocatively dressed woman; the page said she was a stripper. As a result, the girl was barraged with phone calls....

For a bit more on the constitutional status of criminal libel laws, see here.

18 Comments
The Pope's Speech Quoting Harsh Criticism of Islam.

It's been in the news, so I thought I'd pass along the text — I had decided that I ought to read it, and I thought others might want to as well. Here's the most relevant excerpt:

I was reminded of all this recently, when I read the edition by Professor Theodore Khoury (Münster) of part of the dialogue carried on - perhaps in 1391 in the winter barracks near Ankara - by the erudite Byzantine emperor Manuel II Paleologus and an educated Persian on the subject of Christianity and Islam, and the truth of both. It was presumably the emperor himself who set down this dialogue, during the siege of Constantinople between 1394 and 1402; and this would explain why his arguments are given in greater detail than those of his Persian interlocutor. The dialogue ranges widely over the structures of faith contained in the Bible and in the Qur'an, and deals especially with the image of God and of man, while necessarily returning repeatedly to the relationship between - as they were called - three "Laws" or "rules of life": the Old Testament, the New Testament and the Qur'an. It is not my intention to discuss this question in the present lecture; here I would like to discuss only one point - itself rather marginal to the dialogue as a whole - which, in the context of the issue of "faith and reason", I found interesting and which can serve as the starting-point for my reflections on this issue.

In the seventh conversation (διάλεξις - controversy) edited by Professor Khoury, the emperor touches on the theme of the holy war. The emperor must have known that surah 2, 256 reads: "There is no compulsion in religion". According to the experts, this is one of the suras of the early period, when Mohammed was still powerless and under threat. But naturally the emperor also knew the instructions, developed later and recorded in the Qur'an, concerning holy war. Without descending to details, such as the difference in treatment accorded to those who have the "Book" and the "infidels", he addresses his interlocutor with a startling brusqueness, a brusqueness which leaves us astounded, on the central question about the relationship between religion and violence in general, saying: "Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached". The emperor, after having expressed himself so forcefully, goes on to explain in detail the reasons why spreading the faith through violence is something unreasonable. Violence is incompatible with the nature of God and the nature of the soul. "God", he says, "is not pleased by blood - and not acting reasonably (σὺν λόγω) is contrary to God's nature. Faith is born of the soul, not the body. Whoever would lead someone to faith needs the ability to speak well and to reason properly, without violence and threats... To convince a reasonable soul, one does not need a strong arm, or weapons of any kind, or any other means of threatening a person with death...".

The decisive statement in this argument against violent conversion is this: not to act in accordance with reason is contrary to God's nature. The editor, Theodore Khoury, observes: For the emperor, as a Byzantine shaped by Greek philosophy, this statement is self-evident. But for Muslim teaching, God is absolutely transcendent. His will is not bound up with any of our categories, even that of rationality. Here Khoury quotes a work of the noted French Islamist R. Arnaldez, who points out that Ibn Hazm went so far as to state that God is not bound even by his own word, and that nothing would oblige him to reveal the truth to us. Were it God's will, we would even have to practise idolatry.

I read the whole piece, and it struck me that it would have been more apt if it had also discussed why it was that the Christian world had on many occasions turned to "spreading the faith through violence." But of course the reaction to the speech would have been more apt if it hadn't included calls for silencing the Pope through violence; and the difference between these two inaptnesses is quite vast.

UPDATE: Stuart Buck, in comments, pointed to a post that pointed to what seemed to be a more accurate, and nontrivially different translation (note the inclusion of "a brusqueness which leaves us astounded").

FURTHER UPDATE: On the other hand, commenter Dylanfa reports that "Slate claims the 'which leaves us astounded' language was added to the transcript after the controversy as damage control, and was not actually in the speech as given, which simply noted 'brusqueness.'" UPDATE ON MONDAY: Slate has withdrawn this assertion.

YET FURTHER UPDATE: Stuart Buck reports that the speech as given did have the "astounded" language, and points to the German-language video/audio file (the Pope on YouTube — is this a great decade, or what?). Stuart doesn't speak German himself, but is relying on a translation provided by Prof. Horace Hodges. If there are German-speaking readers who can shed light on this, I'd love to hear about it. (UPDATE: I asked Sasha, who knows German, and he agrees with Prof. Hodges' translation.)

In the meantime, Ben Brumfeld points to a Wikipedia piece on the translation differences between the German and the English texts; the Wikipedia author appears to have verified at least one of the differences using the audio:

Commenting on a quote from the Byzantine emperor, Pope Benedict states in the English translation of his lecture, "he addresses his interlocutor with a startling brusqueness". According to the German text the Pope's original comment was "He addresses his interlocutor in an astoundingly harsh — to us surprisingly harsh — way" (wendet er sich in erstaunlich schroffer, uns überraschend schroffer Form).[5]

This difference was corrected on 17 September. The official (though still "provisional") passage now reads: "he addresses his interlocutor with a startling brusqueness, a brusqueness which leaves us astounded". (emphasis in original)

Another difference involves the use of the word "jihad", which is present in the German version but not in the English one: the original statement "The emperor touches on the theme of jihad, holy war" (kommt der Kaiser auf das Thema des Djihad, des heiligen Krieges zu sprechen) became in the English rendition "The emperor touches on the theme of the holy war."

A third difference involves the emperor's quote employed by the Pope: "...things only evil and inhuman...". What the Pope said, and which is found in the German text and verifiable with the audio from the lecture, was "... things only bad and inhumane ... ". The word used was "Schlechtes" (bad/wicked), whereas the English word "evil" would have corresponded to "Böses", a word the Pope did not use. Similarly, the German word "inhuman" (inhumane) was used, and not "unmenschlich" (inhuman).

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My Name's Cameo Appearance:

Several people have e-mailed to ask about this, and How Appealing posted about it, so I thought I'd briefly note it: "Eugene Volokh" was indeed the name of an (entirely off-screen) security guard character mentioned briefly in this week's season premiere of Boston Legal. Was it a coincidence?, some asked. There are no coincidences! As some gathered, it was a shout-out from a friend of mine who writes for the show, and whom I gave some tips about a legal plot twist. And, yes, I'm available for such consulting to others; I'd actually done it before on several occasions, though this is the first acknowledgment like this that I've gotten.

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Senator/Colonel/Judge Graham and the Incompatibility Clause:

The U.S. Court of Appeals for the Armed Forces held yesterday, in U.S. v. Lane, that appointing Senator Lindsey Graham — a colonel in the reserves — as a military appellate judge violated the Incompatibility Clause of the Constitution ("no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office"). The appellate panel's decision upholding Airman Lane's conviction was therefore reversed, and the appeal was remanded for reconsideration by a properly constituted panel.

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Standards for "Heroes" Are Going Way Down:

You're 17 years old. You discover that some of your high school buddies are plotting a Columbine-style massacre at your school. You go home, tell your mom about it, and then report it to the authorities, who arrest the suspects and discover that they had stockpiled a cache of weapons. Good work! But does that make you a "hero?" Hardly. Doing what any sensible, decent person would do under similar circumstances, at no physical risk to yourself, doesn't make you a hero.

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SCOTUS Specialist or Subject Matter Specialist?: A new article over at law.com raises an interesting question: If you are a client with a Supreme Court case in a specialized area of law, is it better to hire a Supreme Court specialist or a subject-matter specialist to argue your case? Here's an excerpt:
Dabney [a patent law specialist] and some others argue that a Supreme Court specialist isn't quite the answer. "The trade-off is how well people know the Court versus how well they know the subject matter," says Stanford Law School professor Mark Lemley, one of 24 law professors who filed an amicus curiae brief on behalf of KSR. "In several high-profile cases over the last four years, very well-known oral advocates have blown the answers to really important questions," he added, though he declined to provide specifics.

The question of whether or not an IP lawyer should argue IP cases before the high court was a dead issue for decades. Then, in its last session, the Supreme Court granted certiorari to four IP cases, more than any year since 1965, when it heard seven. So far, the Supreme Court guys have come out on top: Only one of last year's cases was argued by a patent litigator, and he lost. Bingham McCutchen IP partner Robert Schroeder represented respondent Swift-Eckrich, Inc., in a patent suit against Unitherm Food Systems, Inc. Oklahoma City business litigator Burck Bailey won that one. The rest were argued by Supreme Court specialists.

Dabney claims to be the best of both worlds. Over the last 15 years he has made himself an expert on Supreme Court precedent in patent law dating back to the mid-nineteenth century. And as he says, with typical bombast: "It's hard for me to imagine there is someone who could be more effective than me."
  So which is better -- subject area specialist or Supreme Court specialist? In my view, the answer is that it depends. If the subject area specialist is truly a nationally-known expert in the field, then that may be helpful. That reputation can bring added credibility. On the other hand, it's possible to know too much about a subject area. For example, Dabney's knowledge of Supreme Court precedent in patent law "dating back to the mid-nineteenth century" may be counter-productive; the Justices won't know much about it and aren't bound by it, so their eyes will probably glaze over if he focuses on it too much. A generalist can make sure that the Justices don't miss the forest for the trees. Of course, the downside to a generalist is that he can miss the forest altogether.

  Perhaps the one clear rule in this area is this: If you're going to argue a Supreme Court case, do not boast to a reporter that "[i]t's hard for me to imagine there is someone who could be more effective than me." This kind of attitude only reflects poorly on the lawyer, and that can't help the client.

  Thanks to Howard for the link.
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Wednesday, September 20, 2006

On Economists:

Harvey Mansfield, writing in this month's New Criterion:

The building where I used to work was shared with economists, who, living the sort of life they describe, had no incentive to flush and sometimes failed to do so.

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No Hostility to Religion Here! We Just Need to Discriminate Against Religious Speech To Insulate Society from the Excesses of the Zealous:

Judge Karlton's concurrence in Faith Center Church (see also the post below) argues — right after concluding that "religious speech is categorically different than secular speech and is subject to analysis under the Establishment and Free Exercise Clause without regard to the jurisprudence of free speech":

Those, like myself, who advocate adherence to the strictures of the Establishment Clause, do so not out of hostility towards religion. Rather, we are motivated by recognition of the passions that deeply-held religious views engender, and the serious threat of marrying those passions to government power.

So far so good, though it's not clear how giving religious groups the same access to free library meeting groups that secular groups have — or giving religious groups equal access to a wide range of evenhandedly distributed benefits, such as nonprofit status, the charitable tax exemption for donations to charitable groups, and more — involves "marrying [religious] passions to government power." The judge goes on:

That threat is not merely historic. One need only look about the world to see that danger in play. The scenario is the same whether it is in Northern Ireland where Catholics and Protestants kill each other in an effort to establish governmental power, in Israel, where Jews and Muslims do the same, in Iraq, where Shi’a and Sunni are engaged in similar slaughter, or in Sudan where Muslims murder Christians. Nor is that the only danger.

Again, it's not clear that evenhanded treatment of all religious groups alongside secular groups in access to government benefits has much to do with conditions that lead Catholics and Protestants to kill each other. Likewise, when the judge goes on to say, "Where government plays a role in the religious life of a pluralist society, there is the danger that government will favor the majority religion and seek to control or prohibit the rites of minority religions. Such favor can only lead to alienation and social unrest," I can't see how a rule of equal treatment for all religious groups alongside secular groups would create such a danger.

But then the judge moves on:

The wall of separation between church and state that Thomas Jefferson thought the First Amendment raised, in no way prejudices the practice of anyone’s religion. Instead, it serves the salutary purpose of insulating civil society from the excesses of the zealous. The Good News Club and Lamb’s Chapel majorities’ disdain of the Jefferson model is premised on the belief that religious values enhance rather than endanger society. The legal issue, however, is different. It asks whether one can distinguish between religious speech in a categorical way, and the answer is yes. Of course there may be close cases. Such cases require the development of a delicate jurisprudence designed to protect the Establishment Clause while insulating religious practice from government intrusion.

So the judge has no hostility towards religion, but "the excesses of the zealous" — apparently just the religiously zealous — are something that must be avoided even by discriminatorily excluding religious groups from the benefits available to comparable secular groups.

The issue is not, contrary to what the judge argues here and earlier in the opinion, "whether one can distinguish between religious speech" (which I take it means "between religious speech and nonreligious speech," especially given the other quotes I give immediately below), nor is it about "the High Court's purported inability to distinguish betwen a sermon and a speech" or "[t]he purported inability of the High Court to adhere to the distinction embodied in the First Amendment" between religious speech and nonreligious speech, nor about the Court majority's supposed "doubt about the ability to distinguish between religious practice and secular speech." While the majority opinion does turn on whether courts can consistently distinguish (without undue side effects) between religious worship and other religious speech, of course the courts could distinction between religious speech (such as sermons) and secular speech.

The question is whether courts ought to draw such a distinction, in a way that strips religious speech of the same Free Speech Clause protection that secular speech has, and thus discriminates against religious speech, in order to somehow "insulat[e] civil society from the excesses of the zealous." It seems to me that if one really wants to avoid "hostility towards religion," equal treatment of religious speech and nonreligious speech — regardless of what one fears from the "zealous" — is the proper approach.

Related Posts (on one page):

  1. No Hostility to Religion Here! We Just Need to Discriminate Against Religious Speech To Insulate Society from the Excesses of the Zealous:
  2. Government Must Exclude Religious Speech from Government Property, Writes Federal Judge
43 Comments
Government Must Exclude Religious Speech from Government Property, Writes Federal Judge

-- it says so right there in the First Amendment. Well, somewhere in there. Doesn't it?

Here's the key excerpt from near the start of Judge Karlton's concurrence in Faith Center Church v. Glover, a case in which the majority concludes (based on a more plausible argument, though one I think is still ultimately mistaken) that a library may exclude "religious worship" from a policy that opens library rooms broadly to "meetings, programs, or activities of educational, cultural, or community interest":

This should be a simple case it asks whether the county can be forced to subsidize a religious organization’s prayer meetings by requiring it to provide the religious organization with a free place to worship. A quick reading of the First Amendment to the Constitution of the United States should answer the question. Judge Paez’s opinion tracks the cases and reaches its laborious result because the law has so elaborated that the reaching of the conclusion requires the effort the opinion demonstrates. As I now explain, that elaboration is premised on a failure to accept the plain meaning of the First Amendment.

Both Good News Club v. Milford Cen. Sch., 533 U.S. 98 (2001) and Lambs Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993), turn on the High Court’s purported inability to distinguish between a sermon and a speech. That distinction, however, is compelled by the First Amendment, which establishes different standards relative to government action concerning speech and government action concerning religion. The purported inability of the High Court to adhere to the distinction embodied in the First Amendment leads it to conclude that the issues tendered by cases, such as the one at bar, implicate viewpoint discrimination under the free speech provisions of the First Amendment. They simply do not. As the First Amendment notes, religious speech is categorically different than secular speech and is subject to analysis under the Establishment and Free Exercise Clause without regard to the jurisprudence of free speech.

This is quite a remarkable and, in my view, entirely unsound argument. Consider the text of the relevant part of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press ....

A "quick reading" of the "plain meaning" of the text reveals, I think, two relevant things. First, the Amendment bars "establishment of religion," a term that is hardly self-defining. At the very least, it's far from obvious that including religious speakers evenhandedly among many nonreligious beneficiaries of a government program -- including religious speech and even worship within the category of "meetings, programs, or activities of educational, cultural, or community interest" -- constitutes an "establishment of religion." There's just nothing "plain" about the meaning; some (though a minority on the Court) have read the phrase this way, but it's hardly something that a "quick reading" reveals.

But a quick reading does reveal that the First Amendment protects "freedom of speech," with no limitation to "secular speech." That the pre-semicolon part of the Amendment protects "the free exercise" "of religion" hardly "plain[ly]" keeps the post-semicolon part from protecting "speech" and "press" both secular and religious. It's certainly quite sensible to read the first clause as the Court has read it -- protecting the exercise of religion generally (whether against discriminatory burdens or against all burdens), including religious conduct as well as religious speech, and limiting the stablishment of religion (whatever that means) -- and at the same time to read the second clause as the Court has read it, which is protecting speech generally, including nonreligious speech as well as religious speech.

One may surely argue for the "wall of separation between church and state" interpretation of the Establishment Clause (which Judge Karlton later endorses), or the particular subinterpretation under which this "wall" mandates discriminatory exclusion of religious speech from generally available programs. One may even argue, though few Justices have, that religious speech cases should be analyzed "without regard to the jurisprudence of free speech." But most certainly this is not an argument that can be gotten simply through a "quick reading" that grasps the provision's "plain meaning."

Related Posts (on one page):

  1. No Hostility to Religion Here! We Just Need to Discriminate Against Religious Speech To Insulate Society from the Excesses of the Zealous:
  2. Government Must Exclude Religious Speech from Government Property, Writes Federal Judge
49 Comments
Name of the Day:

Contra Costa County Board of Supervisors Member Federal D. Glover. OK, he's actually not a federal officeholder, but it's still pretty cool (and he still has time). Only thing better would be Fœderal.

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Michiko Kakutani Criticizes Judge Posner's New Book:

Here's the review. I haven't read the book, and for all I know the book it might be unpersuasive, but the review did not strike me as particularly apt even focusing only on what's within the review's own four corners.

Consider, for instance, this:

Many of Judge Posner’s arguments in this book are riddled with self-serving contradictions. While he declares that “the Bill of Rights should not be interpreted so broadly that any measure that does not strike the judiciary as a sound response to terrorism is deemed unconstitutional,” he also argues that “a constitutional right should be modified when changed circumstances indicate that the right no longer strikes a sensible balance between competing constitutional values, such as personal liberty and public safety.”
Where exactly is there a "contradiction" here (as opposed to a constitutional judgment that the reviewer disapproves of)? Judge Posner is arguing that judges shouldn't strike down government action just because they think the action is unsound; he also argues that judges should uphold government action when they think it is sound. It's true that he's not calling for, say, consistent textualism, under which judges may not depart from the text either in the direction of more constraint of the government or less; he seems to be pointing, at least in the quoted materials, towards an "evolving Constitution" that evolves (at least in some measure) in the direction of more deference to government in matters of national security. But where's the contradiction in that?

The next example of "self-serving contradiction[]" is this:

In another chapter, which discusses warrantless eavesdropping by the N.S.A., Judge Posner shrugs off the concern that government scrutiny of private communications could lead to embarrassment, intimidation or blackmail of the administration’s opponents. While he acknowledges that “such things have happened in the past,” he says that “they are less likely to happen today” because factors like “the growth of a culture of leaking and whistle-blowing” and “more numerous and competitive media” have converged “to make American government a fishbowl,” and “secrets concerning matters that interest the public cannot be kept for long.”

Later in the book, however, he suggests that people’s privacy (regarding information collected by government data mining) would be better protected if there were more restrictions placed on the news media and “the principle of the Pentagon Papers case” were “relaxed to permit measures to prevent the media from publishing properly classified information.”

Aha! Except where's the aha? It's true that Posner is relying on an active press to expose government blackmail, but at the same time willing to restrain the press when it's publishing classified information. At least these two suggestions do point in some measure in different directions, but that hardly makes them "contradictions": Posner is willing to see some fairly narrow extra restrictions on the press, and doesn't think that such restrictions will generally interfere with the press's ability to check government "embarrassment, intimidation or blackmail" that uses government-gathered private communications — an ability that can often be exercised by the press without publishing classified information. At most Ms. Kakutani has identified an example of a Posner proposal (a limit on publishing "properly classified information") that might in some measure limit the checks needed to make another proposal (more government power to engage in warrantless eavesdropping) less threatening. This is worth noting, but it hardly involves a "self-serving contradiction[]" on Posner's part.

Ms. Kakutani goes on to write that "By the end of this chilling book, the reader realizes that Judge Posner is willing to use virtually any argument — logical or not — to redefine constitutionally guaranteed rights like freedom of speech during wartime." The reader naturally expects some examples of illogical arguments of Posner's (since trying to redefine constitutionally guaranteed rights using logical arguments doesn't sound that bad). Here is what the reviewer gives us:

For instance, he expresses irritation with the Supreme Court’s 1969 Brandenburg ruling, which stipulated that speech advocating violence or other criminal conduct cannot constitutionally be suppressed unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Although Judge Posner writes that “in the present circumstances the enactment of laws forbidding radical Islamist expression would be needlessly provocative,” he ominously adds that “the situation may change” and that he believes “the incitement/threat category could be expanded” to include “generalized advocacy of violence against the United States.”

In his opinion, he says, “to tell Congress and the president that they can do nothing to prevent forms of advocacy likely to multiply the number of future terrorists makes no more sense than telling them that they cannot prevent the publication of recipes for bioweapons because it would probably take years to get from the recipe to the actual manufacture, let alone use, of the weapons.”

Judge Posner believes that “additional counterterrorist measures, in particular in the related areas of electronic surveillance and computerized data mining, could be taken without violating the Constitution (even if there were a clear constitutional right to informational privacy), especially if the effect on privacy is minimized by a strict rule against using information obtained through such means for any purpose other than to protect national security.” And he writes that “coercive interrogation up to and including torture might survive constitutional challenge as long as the fruits of such interrogation were not used in a criminal prosecution.”

Again, there's plenty here that reasonable people would disagree with; but where in all of these examples is an argument that's illogical? How is it illogical to argue that advocacy of certain violence, including nonimminent violence, should be unprotected? I don't take this view (which is in some ways closer to the European approach to free speech protection, in which advocacy of nonimminent harm — especially of racial hostility, discrimination, and violence — is unprotected, than to the American), and I've criticized those who have urged it or adopted it. But what's illogical about it?

Likewise, there's nothing illogical about the arguments for broader surveillance or coercive interrogation. One can respond to these arguments on the merits; but the reviewer doesn't do that — she simply relies on the assertion that these particular arguments are evidence "that Judge Posner is willing to use virtually any argument — logical or not — to redefine constitutionally guaranteed rights like freedom of speech during wartime."

There's more, for instance the reviewer's claim that Judge Posner has "a distinctly cynical outlook that imputes the most mercenary of motives to everyone from journalists to judges: just as Judge Posner has asserted that the media merely pander to the demands of their audiences rather than striving to inform the public, so he suggests in these pages that justices simply 'make up constitutional law as they go along,' following subjective criteria instead of striving to uphold principle and precedent." How is the claim that a judge is deciding based on subjective criteria a claim of "the most mercenary of motives"?

Likewise, consider the claim that "Judge Posner appears to see the Constitution as a fantastically elastic proposition that can be bent for convenience’s sake. 'The greater the potential value of the information sought to be elicited by an interrogation,' he writes, 'the greater should be the amount of coercion deemed permitted by the Constitution. The Constitution contains no explicit prohibition of coercive interrogation, or even of torture, to block such an approach.'"

The trouble is that — especially given a later quote that shows that Judge Posner would bar "the fruits of [coercive] interrogation [from being] used in a criminal prosecution" — Judge Posner's statement that "[t]he Constitution contains no explicit prohibition of coercive interrogation, or even of torture, to block such an approach" is quite correct, and does not at all rely on the Constitution's supposed "fantastic[] elastic[ity]": The Constitution indeed doesn't explicitly prohibit coercive interrogation, so long as the interrogation doesn't involve the person's "be[ing] compelled in any criminal case to be a witness against himself." It may well be that the Constitution should be read as prohibiting coercive interrogation; the Court has certainly so held, and one can read some general concepts, such as "due process" (or for that matter the Ninth Amendment) to include this. But such a reading, even if right, probably requires more "elastic[ity]" than Posner's assertion that "The Constitution contains no explicit prohibition of coercive interrogation, or even of torture, to block such an approach" — an assertion that, if mistaken, is mistaken because it treats the Constitution's text as too rigid, not as too elastic.

So the review is not an impressive piece of work, it seems to me. Again, Judge Posner's arguments may well be unsound, but the review certainly doesn't prove it, or even seem to try hard to prove it (as opposed to using pejoratives to assert it).

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Jeff Jacoby on the Violent Response by Some Muslims to the Pope's Speech:

"[T]he real insult to Islam is not a line from a papal speech or a cartoon about Mohammed. It is the violence, terror, and bloodshed that Islamist fanatics unleash in the name of their religion -- and the unwillingness of most of the world's Muslims [which I read as referring primarily to influential Muslims, not the average Muslim who's not in much of a position to do much -EV] to say or do anything to stop them."

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Presidential Candidates With Jewish Roots:

The grandaddy of them all, of course, was Barry Goldwater, who had a Jewish father. He was raised as a Christian by his mother, though it doesn't appear that he was especially religious. Goldwater was, by all accounts, proud of his Jewish heritage, but this aspect of his background played what seems today like a strange role in the 1964 campaign. From what I can tell, his handlers sought to play down his Jewish background, referring to his grandfather as a "Polish immigrant" (including in the speech given to nominate him.) Given that "Poland" didn't exist when the Goldwaters came to the U.S. in the mid-19th century, and that they were ethnically Jewish, not Polish, this was a bit misleading. If his family had been German-speaking residents of the Russian empire, instead of Yiddish-speaking, do you think they would have been referred to the Goldwaters as Polish immigrants?

Meanwhile, the Jewish community, near as I can tell, was equally eager to downplay Goldwater's Jewish background. Neither of my parents, for example, was even aware that Goldwater was ethnically half-Jewish, until I mentioned it to them. Rather than being proud that a grandson of Jewish immigrants was running for president, Jewish leaders were appalled at Goldwater's strong conservatism, and perhaps afraid that his background could stir anti-Semitism; I've read that Goldwater received only 10% of the Jewish vote. Of course, the fact that he was nominally Christian didn't help, but Jews had previously embraced New York Mayor LaGuardia, who had an analogous background, so I'm guessing his reception had much more to do with his political views.

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Senator George Allen Confirms Jewish Heritage: It was rumored, as we noted before, and now Senator (and potential Presidential candidate) George Allen has confirmed it.
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Tuesday, September 19, 2006

Empirical Analysis of Online Dating: This paper seems destined for SSRN success: What Makes You Click? Mate Preferences and Matching Outcomes in Online Dating. From the abstract:
This paper uses a novel data set obtained from an online dating service to draw inferences on mate preferences and to investigate the role played by these preferences in determining match outcomes and sorting patterns. The empirical analysis is based on a detailed record of the site users' attributes and their partner search, which allows us to estimate a rich preference specification that takes into account a large number of partner characteristics.
Hat tip: ProfessorBainbridge.
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How to Hack a Diebold Voting Machine: Ariel Feldman, Alex Halderman, and Edward Felten have the scoop here, and even have a short video to go along with their paper.
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My Heart Bleeds Over This Outrageous "Harass[ment]":

The Great Falls Tribune reports:

The arrival of a white nationalist family, including 14-year-old twins who perform music as the group Prussian Blue, has prompted neighbors to distribute fliers that say, “No hate here.”

Lamb and Lynx Gaede, their mother April and stepfather Mark Harrington moved to Kalispell from Bakersfield, Calif., which was “not white enough,” April Gaede told ABC’s “Primetime” in a show that aired last fall....

[Neighbors recognized the Gaedes from the television program, and] printed information sheets about the family and went door-to-door passing them out.

“This letter is not written as a means to harass the family or to begin a witch hunt,” the flier said. “We wish the family no harm. Our goal is to peacefully communicate that this kind of hate and ignorance will not be accepted here in our neighborhood where we live and raise our families.”

“No hate here,” is printed on the one side of the brightly colored fliers. Residents were asked to display the signs in their windows.

Prussian Blue’s music includes a song called “Sacrifice,”which praises Nazi leader Rudolf Hess, a deputy to Adolf Hitler. The girls have performed at rallies for white nationalist causes.

“The music that Prussian Blue performs is intended for white people,” the girls’ Web site says. “They hope to help fellow Whites come to understand that love for one’s race is a beautiful gift that we should celebrate.” ... [T]he police said the family called to say they were being harassed by the neighbors’ efforts to post fliers. Officers explained that the neighbors’ free speech rights made distributing the fliers legal.

I'm with the officers -- and the neighbrs -- on this one. If you praise Nazis, don't expect your neighbors to welcome you with open arms, or to sit quietly by as you publicly explain that you're moving next to them because they're "white enough" for you. You have the right to speak your mind. They have the right to speak theirs, and to remonstrate with you over your views.

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Intimate Association, Fraternities, and Government Subsidies:

The Foundation for Individual Rights in Education points to a decision from last month that I hadn't noticed before:

Last month, Judge Dora L. Irizarry issued a preliminary injunction requiring the College of Staten Island (CSI) to officially recognize Chi Iota Colony of Alpha Epsilon Pi (AEPi), a Jewish fraternity (Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N.Y., 2006 U.S. Dist. LEXIS 56257 (E.D.N.Y. 2006)). Prior to the injunction, CSI’s Office of Student Life had refused to recognize AEPi, insisting that doing so would “contravene[] the College’s non-discrimination policy” because of AEPi’s constitution, which requires the group’s membership to be male.

But citing the fraternity’s status as “an organization that promotes congeniality and a supportive social structure for male students,” Judge Irizarry found that CSI’s refusal had likely violated the fraternity’s First Amendment right to freedom of intimate association.

Indeed, Judge Irizarry’s focus on fraternity membership as a protected form of “intimate association” is what’s most interesting about this ruling, because classifying fraternities and sororities as types of intimate association affords Greek organizations at public schools a new constitutional protection against hostile administrators.

The Supreme Court has indeed recognized a right of intimate association, which protects people's choices of whom to let into their (relatively) small and selective groups. I'm generally free to decide whom to invite to dinner, or whom to choose as a roommate, even if I discriminate based on race, sex, religion, sexual orientation, or what have you, and even if some law purports to regulate my decision. This right doesn't extend to broad, not very selective groups like the Jaycees, but it does extend to some smaller and more selective clubs.

But here New York wasn't trying to ban single-sex groups — the City University of New York (College of Staten Island) simply has a policy of recognizing only groups that don't discriminate based on (among other things) sex, and thus denies them access to university facilities, services, bulletin boards, centralized mailbox, funding, and some other benefits. The University is thus just choosing not to fund certain exercises of a constitutional right to intimate association. (An unusual choice, since to my knowledge most Universities offer such benefits to single-sex fraternities and sororities — as they are clearly constitutionally free to do — but unusual choices aren't unconstitutional just because they're unusual.)

And generally speaking, the government is perfectly free not to fund the exercise of a constitutional right, even when it funds other activity (including activity that's in some ways an alternative to that exercise of a constitutional right). Consider some examples ("need not" below means "has no federal constitutional obligation to"):

Right to abortionNew York may not ban abortions,but it need not pay for them with state funds, or allow them to be performed at state-run hospitalseven if it chooses to pay for childbirth.
Right to free speechNew York may not ban advocacy of a candidate or a legislative proposal,but it need not subsidize it through the charitable tax exemptioneven if it subsidizes non-electioneering, non-lobbying speech through the charitable tax exemption.
Right not to marryNew York may not require people to marry,but it need not give unmarried couples or platonic roommates special dorm housing,even if it subsidizes married couples by offering such housing.
Right to privately educate one's childrenNew York may not ban private education,but it need not pay for private education,even if it pays billions for public education.
For more on these examples, see my Freedom of Expressive Association and Government Subsidies, 58 Stanford Law Review 1919 (2006), which discusses all this in the context of the right to expressive association rather than intimate association.

Now there are some exceptions to this No Duty To Subsidize Constitutional Rights principle. The government may not discriminate based on people's religiosity; it in many situations may not discriminate based on the viewpoint of people's speech; and under some jurisdictions' statutes and constitutional provisions (it's not clear whether New York would be one such jurisdiction), the government may not exclude people from at least some subsidies when that burdens their religious practice. But none of these exceptions are in play here: Though the fraternity is Jewish, it's not claiming that excluding women is part of its religious practice, or that the government is targeting the fraternity because it's Jewish (or more broadly because it's religious). And while obviously both the fraternity's and CUNY's actions are founded on the fraternity's and CUNY's viewpoints about single-sex organizations — as all actions are founded on the actor's viewpoint about the propriety of the action — CUNY's action definitely does not treat groups differently based on the viewpoints that they express through their speech, which is what it takes to make CUNY's action viewpoint-based. (Again, for more on this, see here.)

All we have here is a government choosing not to offer government benefits to support the exercise of a constitutional right — and whether that's the right to abortion, to private education, to speak, not to marry, or to intimately association, the U.S. Constitution leaves the government free to do that. The government's choice here may be faulted as taking antidiscrimination logic to extremes, as undermining a useful form of private association, or as being intolerant of genuine diversity. But it's not unconstitutional.

UPDATE: A commenter suggests that the government may not limit access to government property to people exercising their constitutional rights, even if it may limit access to funds. But the Court has (in my view rightly) generally treated access to property the same as it treats access to other benefits. The government may choose not to pay money to subsidize abortions; but it may also choose not to let public hospitals be used for abortions, even if the doctor and patient offer to pay for access. The government may choose to let public schools but not private schools have access to certain government property (e.g., school classrooms after hours). A university may choose to open space in classrooms after hours to certain speakers (e.g., student groups) but not other speakers (e.g., nonstudent groups, no matter how constitutionally protected those nonstudent groups might be), or to certain subject matters but not other equally constitutionally protected subject matters.

The one exception is government "traditional public forum" property -- parks, sidewalks, and streets -- but that isn't involved here.

Related Posts (on one page):

  1. Intimate Association, Fraternities, and Government Subsidies:
  2. Intimate Association, Fraternities, and Government Subsidies:
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Online Talk (in a Virtual World) on Bloggers and Liability:

Stanford Law School Center for Internet and Society Associate Director Lauren Gelman will be teaching a a class in There.com on Bloggers and Liability; it's described here, and you can download the required software here. Today's class (5:30 Pacific) will be mostly on the First Amendment and Thursday's class (also 5:30 Pacific) will be mostly on copyright.

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Is the Specter Bill a Good Idea As A Matter of Policy?: I plan to respond to John Schmidt's constitutional defense of the Specter bill later today, but I wanted to address a question that Schmidt's defense curiously avoids: Is the Specter bill a good idea as a matter of policy?

  I haven't blogged on this question before, mostly because I find the question essentially impossible to answer. Almost no one knows what the facts of the NSA program are, what it does, and whether and how much it works, so I don't know how we're supposed to know whether it's a good idea for Congress to endorse it legislatively. It's like me telling you, "I'm thinking of a government program. Do you want to allow it or prohibit it?" Without knowing more, how are you supposed to answer that question? It's also hard to analyze the effect of the Specter bill's overhauling of the definitions of FISA without knowing how FISA investigations unfold; it's hard to measure the operational impact of a legislative change without knowing more about the operations. And how would Presidents use unregulated authority to conduct domestic wiretapping — what kinds of programs would they want to create that FISA currently blocks?

  Of course, you can always pick a view of the Specter bill based on fear. The more you fear Executive overreaching, the more you'll oppose it, and the more you fear an Al Qaeda attack, the more you'll support it. Or you can pick a view based on politics: if you support Bush, support the bill, and if you oppose Bush, oppose it. But if you want to assess the merits of the Specter bill in a more informed and substantive way, there doesn't seem to be much to go on.
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Clinton Official Defends Specter Bill:

John Schmidt, who served as Associate Attorney General for four years under president Clinton, has an article in the Legal Times defending Senator Specter's legislation that would, among other things, provide judicial review of the National Security Agency surveillance program. Schmidt's essay is the strongest, and most coherent, articulation of this perspective that I have seen to date, so it is well worth a read (even, perhaps especially, if one disagrees).

Schmidt argues that the President has inherent executive authority to conduct surveillance on foreign enemies and that FISA did not limit this authority. From that perspective, Schmidt argues, enacting the Specter bill would be wise (although not necessary).

the history of FISA’s exclusivity provisions demonstrates that they were a mistake from the beginning. Far from protecting the rule of law, they ignore the law of the Constitution. Eliminating them now would help end confusion about the president’s authority in this critical area of national security.
Among other things, Schmidt argues, FISA's drafters and contemporary legal scholars did not view the statute as the exclusive means for authorizing surveillance.
[Ford Attorney General Edward] Levi assured Congress that President Ford would use the FISA process in all circumstances he could then anticipate. But he warned that the unpredictability of foreign threats to the nation and the likelihood of ongoing changes in communication technologies made it “extraordinarily dangerous” to pass a statute that did not acknowledge the president’s retained surveillance power.

“The very nature of the reserved presidential power, the reason it is so important,” said Levi in his congressional testimony, “is that some kind of emergency could arise which I cannot foresee now, nor, with due deference to Congress, do I believe Congress can foresee.”

Levi emphasized in congressional testimony that there is “a presidential [surveillance] power which cannot be limited, no matter what Congress says.” But he noted that Congress had an important role to play in setting forth “the understanding of the constitutional power” and that “it would be most unfortunate if it were suggested that those who passed this legislation thought that there was no such constitutional power in the hands of the president beyond the scope” of FISA.

Levi’s view that the proposed statute must disclaim any intent to deprive the president of his Article II power was supported in congressional testimony by the nation’s leading constitutional scholars. The late professor Herbert Wechsler of Columbia University School of Law said that the legislation “necessarily reserves” the constitutional power of the president. Professor Paul Mishkin of the University of California’s Boalt Hall School of Law explained that a provision “which disclaims any intention to limit any ultimate inherent power which the president may have . . . clearly goes as far as Congress constitutionally can to establish and maintain legislative controls” in the area of wiretapping. Francis Allen, then the dean of the University of Michigan Law School, observed, “Congress is hardly in a position to undertake a full and a definitive statement of the limits of presidential power in these areas under all possible future contingencies.”

In an interesting twist, Schmidt argues that the Specter bill will, as a practical matter, increase the executive's accountability in the exercise of this authority.
The president’s power to order surveillance of a foreign enemy that is planning to attack this country is a practical fact. The Specter bill does not define the limits of that constitutional power but simply acknowledges its existence and creates a judicial mechanism for the review of its exercise. Senators and congressmen who vote for the legislation can continue to believe, if that is their view, that Bush went beyond the constitutional limits in approving the current NSA program.

On the other hand, if Congress rejects the Specter bill, then the president, regardless of what individual senators or congressmen may believe about the limits on his power, will continue to exercise that power without any constraint other than his own constitutional judgment in circumstances where the current FISA process is unworkable.

For a quite different perspective, see the various postings on the subject at Balkinization, including these two posts by Marty Lederman and this one by David Barron (among many others on the blog that address the subject).

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Julian Ku on Me and Yoo: Over at Opinio Juris, Julian Ku argues that John Yoo's criticisms of the Clinton Administration in 2000 aren't inconsistent with his defense of the Bush Administration today. If you've been following this thread, definitely check it out.
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Monday, September 18, 2006

Northern Virginia Housing Market Update:

I've mostly given up blogging about the (now-deflating) housing bubble, because the housing bubble blog and its commenters do such a fantastic job that there isn't much left to say. But every once in a while I come across something interesting enough to share.

22201 has perhaps been the hottest zip code in Northern Virginia, or at least in Arlington, during the bubble. It's the home of the hippest (and most improved) neighborhood, Clarendon, not to mention GMU Law School. And the top of the market has suddenly completely dried up. According to data from this website (a must-go-to for anyone in the real estate market in No. Va.), in August 2006, there were twenty-five condos for sale for more than $700,000 in 22201. Meanwhile, there was only one sale, in the 700-800K range. Also in August, there were twenty-six single family houses for sale in 22201 for over $1,000,000. Meanwhile, only two sold. Even these sales only closed in August, and were likely agreed to in June or July, when the market was more robust. OTOH, more moderately priced condos and homes are selling at a much better rate. In the $300-350K range, fourteen condos sold, with sixteen on the market.

Conclusion: We are in the classic first stage of a down market, with luxury condos and the highest-priced homes leading the way down.

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Political preferences research bleg:

I can think of various reasons why people might favor policies that favor their industry. For instance: (1) Naked self-interest. (2) False consciousness: They wrongly come to believe that what's good for the industry is good for America ("What's good for GM..."). (3) True consciousness: They've learned how important their industry is from the experience of working in it. (4) Self-selection: They were more likely to join the industry in the first place because they sympathized with its interests. (5) Coincidence.

Have these reasons been systematically categorized? Do they have "official names"? (I just made up the names in the list above.) Are there scholarly papers discussing this? (Responsive comments only please.)

A second, somewhat related question: How do people feel about a group pushing a policy if that group would benefit from the policy economically? I can think of two possibilities: (1) Self-seeking bastards! (2) If you disagree with the policy: Self-seeking bastards! If you agree with the policy: Thank goodness someone has an incentive to stand up for the right policy!

Note: I don't really care how you, the readers of the Volokh Conspiracy, feel about such groups. I do care what social scientists have discovered about how people feel in general about them. Any scholarly papers discussing this perception issue?

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More on WHO's New Support of DDT:

Grist rounds up additional coverage of the World Health Organization's decision to be more supportive of DDT use for malaria control. Of note, some environmentalist organizations, such as the Sierra Club, are reluctantly supporting the move.

Related Posts (on one page):

  1. More on WHO's New Support of DDT:
  2. WHO Backs DDT Use:
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Bush Administration Turnaround on Global Warming?: I had blogged a few weeks ago about the possibility that the Bush Amdinistration may be changing course on global warming, and this article in the Independent (UK) suggests that an announcement on the topic may be coming soon. Stay tuned. Thanks to Tim Dowling for the link.
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Another Ballot Access Rule Bites the Dust:

Today the U.S. Court of Appeals for the Seventh Circuit struck down Illinois' ballot access requirements. In Lee v. Keith, a unanimous panel found Illinois' rules, which were among the most stringent in the nation, to be unconstitutional burdens on the freedom of association protected by the First and Fourteenth Amendments. This decision comes on the heels of a Sixth Circuit opinion that struck down Ohio's ballot access regulations on similar grounds. Rick Hasen has more here. (LvHB)

NOTE: Broken link to opinion is now fixed.

Related Posts (on one page):

  1. Another Ballot Access Rule Bites the Dust:
  2. More on LP v. Blackwell:
  3. Libertarian Party Beats Ken Blackwell:
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The Unsolved Math Problem: Sometimes urban legends are true, and Snopes has the scoop on a particularly interesting one (interesting at least to those interested in math). Thanks to Zincro for the link.
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Washington Post Coverage of Gun Buybacks:

NewsBusters asks: When the Washington Post runs a favorable news story on gun buybacks, can't they find a single person who could criticize the proposals? Even the Boston Globe, hardly an NRA sympathizer, criticizes such buybacks -- there's obviously a serious question whether they're worthwhile. Shouldn't a news story that quotes people praising them also at least mention the opposite view?

(NewsBusters also faults an AP story on the subject, but it's a very short piece, with no express praise of the programs; covering criticism of the programs is thus both harder and less necessary.)

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The Universal Passion for Banning Things:

Jonathan Adler and Radley Balko (The Agitator) point to this story, from England:

Steve Bloomfield, a spokesman for the Eating Disorders Association, said: "We do think legislation [too ban the use of supposedly underweight models] is needed.

"This is about protecting the young women and men who work in the fashion industry, as well as those who are at risk of an eating disorder and can be influenced by the pictures that they see.

"The fashion industry is there to make money and there is no legislation to protect models. It basically exploits people who are underweight and forces others to follow suit."

The Madrid initiative followed the death of 22-year-old Luisel Ramos during a fashion show in Uruguay last month. The emaciated model died of a heart attack moments after stepping off the catwalk — a result of having eaten nothing but green leaves, washed down with Diet Coke, for three months....

Sarah Watkinson, managing director of the outsize modelling agency 12 Plus UK, agrees that legislation is needed to protect the health of models — and those aspiring to emulate their favourite catwalk stars....

"... It is vital for schoolgirls who might aspire to look like these models to have a range of size 10, 12 and 14 women to look towards, instead of comparing themselves with women who look starved....

This put me in mind of Judge Kozinski, quoting Boris Yeltsin:

There are places where, until recently, "everything which [was] not permitted [was] forbidden.... [W]hatever [was] permitted [was] mandatory.... Citizens were shackled in their actions by the universal passion for banning things." Yeltsin Addresses RSFSR Congress of People's Deputies, BBC Summary of World Broadcasts, Apr. 1, 1991, available in LEXIS, Nexis Library, OMNI file. Fortunately, the United States is not such a place, and we plan to keep it that way.

Let's hope there are enough Britons who share these views.

Related Posts (on one page):

  1. The Universal Passion for Banning Things:
  2. Banning the Skinny:
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Is Bob Dylan the Sentencing Law and Policy of Music?

So reports Alex Long's [Insert Song Lyrics Here]: The Uses and Misuses of Popular Music Lyrics in Legal Writing. OK, the Sentencing Law and Policy connection is my own, but SL&P is by a huge margin the most-cited blog in court opinions, and by a smaller margin the most-cited in law review articles. (The 3L Epiphany data I cite is limited to citations of law blogs, but I'm assuming that non-law blogs are cited rather more rarely in such legal sources.) Likewise for Bob Dylan:

ArtistNumber of Citations in Legal JournalsNumber of Citations in Judicial OpinionsTotal
1. Bob Dylan16026186
2. The Beatles71374
3. Bruce Springsteen64569
4. Paul Simon51859
5. Woody Guthrie42143
6. Rolling Stones35439
7. Grateful Dead30232
8. Simon & Garfunkel26430
9. Joni Mitchell27128
10. R.E.M.27027

Other artists narrowly missing the cut include Pink Floyd (26), Billy Joel (21), and Johnny Cash (21). The most notable absence, at least in terms of record sales and cultural significance, would be one Mr. Elvis Aron Presley.

Special bonus implication -- we're the Beatles of law blogging, at least when it comes to court opinions and law review articles.

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Mystery Solved:

I could understand names such as Ithaca, New York — classical names have often been seen as classy in America — and Memphis, Tennessee and Cairo, Illinois, which are based on the conceit of the Mississippi as the American Nile. Other names, such as Boston and New York, simply reflect the settlers' Old Country. But why St. Petersburg, Florida? How is the Sunshine City on the Gulf of Mexico connected to a Russian city near the Arctic Circle?

Well, Wikipedia reports, the answer is pretty simple: The city was cofounded by Peter Demens, a Russian who spent much of his youth St. Petersburg; though I doubt that many of its residents are Russian, its important early settler was, and that's all it took. Moscow, Idaho remains a mystery, though:

The origin of the name Moscow has long been disputed. There is no evidence that it was named by a Russian or for a Russian city. What can be verified is this: five of the settlers met to choose a proper name. They wanted a prestigious name, one that would bode well for the town. They failed to come to an agreement quickly, and so they designated the postmaster, Samuel Neff, to complete the official papers. He chose Moscow, which because of its favorable meaning, 'city of brotherly love,' met the desired requirements. An interesting sidelight to the choice is that Neff was born in Moscow, Pennsylvania and later moved to Moscow, Iowa.

UPDATE: I have no idea why anyone would think that Moscow (or, in Russian, Moskva) would mean "city of brotherly love." (For whatever it's worth, "brother" in Russian is "brat," and "love" is "liubov'.")

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The Party of the President Usually Loses Power in the States in Midterm Elections.—

The existing political science literature tends to emphasize the loss of seats in Congress in midterm elections, which it nicely documents. In a comment to appear soon in the Yale Law Journal (vol. 115, pp. 2611-2622), Steve Calabresi and I document the loss of state governorships in off-year and midterm elections. You can download a full copy from SSRN at the bottom of this linked page.

The backlash against the President’s party in state races during a President’s term is actually stronger overall than the coattail effect in the presidential election year. To be more specific, we find that four years after a party wins a presidential election, it holds on average three fewer statehouses than it had before it won the presidential election. Perversely, winning the presidency seems to lead very shortly to losing power in the states. Since 1932 there have been eight changes of party control of the White House (1933, 1953,1961, 1969, 1977, 1981, 1993, and 2001). In every instance but one, the party that seized the White House held more governorships in the year before it took office than in the subsequent year it lost the presidential election. The only exception is that in 1980, Republicans held four fewer governorships than they held in 1992, immediately before the Republicans were voted out of the White House. Similarly, of the eleven Presidents since 1933, every one except two, Kennedy and Reagan, left office with fewer governorships than his party had before he took office, and Kennedy served less than three years. Figure 1 shows this pattern.


Click to enlarge

The four-year pattern of a federal election cycle is shown in Figure 2.


Click to enlarge

If one looks at the pattern since 1960, in his first year in office, a President’s party controls only one more governorship than the party had in the election year. Once he is in office, there is a backlash against the sitting President’s party. On average, since 1960, by the third and fourth years of a four-year presidential administration, the President has lost four seats from his first year, thus losing not only that one “coattail effect” seat, but three more governorships as well. One sees a similar, but slightly stronger, pattern since 1936. If one looks at just two-term administrations since the 1950s, by the seventh year of the administration, the party winning the White House has nearly eight (7.6) fewer governorships on average than it had before it won the White House.

We attribute this effect to presidents being a lightning rod for everything that goes wrong, which tends to lead to lower presidential approval ratings:

Most Presidents leave office less popular than when they entered, with Ronald Reagan and Bill Clinton being the only exceptions since at least Dwight Eisenhower. Even the exceptions (Reagan and Clinton) suffered major congressional losses in their first midterm elections, at times when their job approval ratings were down substantially. Thus, the response of voters is to blame the President for whatever goes wrong and, probably as a result, to punish that President’s party in midterm and off-year elections.

Further, the lower voter turnouts for off-year and midterm elections tend to give those who are motivated to vote a bigger influence, and dissatisfaction with the president in office is a potential motivation.

Most states—-and all of the big ones—-have moved to electing their governors in off-year and midterm elections, in part to decrease the influence of the presidential election cycle on the state elections. Our data suggest that this effort to avoid presidential influence has been unsuccessful.

Theoretically, our backlash/lightning rod thesis is in some respects consistent and in some respects at odds with the prevailing political science theories of midterm elections: (1) referendum theory and (2) surge and decline/coattail theory.

As has been common with my other collaborations with Steve Calabresi, my contribution to the Yale comment has been predominately empirical (and to a lesser extent, theoretical).

The 2002 midterm election was unusual in Congress because the party not holding the White House, the Democrats, lost some ground, though they gained three governorships. The perhaps analogous 1962 election (which took place only a week or so after the Cuban missile crisis) was also relatively kind to the party in the White House, but the Democrats in power did very poorly in the next midterm election, 1966. Usually, in a two-term presidency, either the first or the second midterm election (1938, 1950, 1954, 1958, 1966, 1974, 1982, 1994) is very damaging to the president's party in either Congress or the states or both.

Before commenting below, please at least skim the paper itself (it is only 12 pages long):

Steven G. Calabresi and James Lindgren, The President: Lightning Rod or King?, 115 Yale Law Journal 2611, 2611-2622 (2006) (which may be downloaded at the bottom of this linked page at SSRN).

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The ONDCP on Marijuana (Ads):

You know those ads produced by the White House Office of National Drug Control Policy and urging kids not to use marijuana? The feds have spent well over one billion dollars on the ads since 1998. Yet, as Slate reports, a government-funded study found that the ads actually increase the likelihood that teenagers will use marijuana. Worse, the ONDCP initially sat on the study for over a year, while continuing to fund the ads, and now claims the results are dated. Your tax dollars at work.

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"Crackberry" Suits Unlikely:

Remember that business school professor who predicted lawsuits over BlackBerry addiction? Overlawyered's Walter Olson explains why such suits are unlikely. The American tort system ma have its problems, Olson argues, but it hasn't endorsed the sorts of leal theories upon which such cases would depend (at least not yet).

it’s very unlikely that employers need worry about BlackBerry-addiction suits. Despite rumors to the contrary, American courts have not in fact been much inclined to let sunken-eyed Jane blame her addictions on deep-pocketed James. Compulsive gamblers’ suits have mostly flopped so far - as have those alleging videogame addiction - while the very modest success enjoyed by plaintiffs in fast-food lawsuits has come on other legal theories, such as ingredient mis-labelling. A Wisconsin man won brief national derision by blaming his addiction to television-watching on his local cable service, but soon decided not to pursue the matter.

There are other big problems with the liability theory as well. When employees overuse the devices they’re usually spending a lot of time on personal and not just company business. Asking for the employer to be made liable because it introduced the worker to the device proves too much: are bosses who introduce their workforce to telephones and the internet to be sued over off-work abuse of those too?

To be sure, there are ways employers can run into legal trouble by way of their staff's BlackBerry use. It’s just that those ways have nothing to do with the notion of addiction. Obliging an employee to stay connected after hours can sometimes run afoul of wage and hour laws, though many professional, creative and managerial types, prime users of the devices, aren’t covered by that set of laws. Should an employee on the road have a crash while fiddling with the tiny keyboard, a clever lawyer might name the employer as defendant. But again, no addiction angle there.

Related Posts (on one page):

  1. "Crackberry" Suits Unlikely:
  2. Lawsuits over "Crackberry" Addiction?
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More on John Yoo's Criticism of the Clinton Administration: I mentioned John Yoo's 2000 essay on the Clinton Administration's view of executive power in my earlier post, and while it's not online, I did find a video of him presenting the paper at the Cato Institute. The substance of Yoo's talk begins around the 26:30 mark. It's very interesting to watch. At the 28:30 mark, Yoo states his basic view that the Clinton Administration's foreign policy has undermined the rule of law in three fundamental ways:
First, I think, in order to achieve their foreign policy goals, the Clinton Adminisitration has undermined the balance of powers that exist in foreign affairs, and have undermined principles of democratic accountability that executive branches have agreed upon well to the Nixon Administration. The second thing is that the Clinton Administration has displayed a fundmental disrespect for the rule of law. Not in the sense that they don't make legal arguments to defend their positions, but the legal arguments are so outragous, they're so incredible, that they actually show, I think, a disrespect for the idea of law, by showing how utterly manipulable it is. And the the third thing is a matter of consistency. I think one of the things the rule of law demands is that people be consistent, and that institutions be consistent in their legal positions. And I think the Clinton Administration, as I'll discuss in a moment, has been wildly inconsistent. It has gone to the point of disavowing previous executive branch opinions, and when it does things that it finds so inconvenient legally that it overturns too much law, it just doesn't say anything at all, and goes ahead and does what it intends to do anyway.
  Yoo's first example is the Clinton Administration's creative intrepretation of the Anti-Ballistic Missile treaty in early 2000. The treaty blocked building an ABM system, but the Clinton Administration wanted to start building a radar system that would be the beginning of an ABM system. According to Yoo, the Clinton avoided the treaty obligations by interpreting the treaty implausibly to allow for building radar that might be the beginning of an ABM system. Yoo criticizes this creative executive interpretation for "trampling on the Senate's role" in making treaties and avoiding having to go through a democratic process to change governing policy.

  Yoo's second example is Administration's expansive approach to executive war powers, and the fact that the Administration was eager to act without Congressional approval in deploying troops. Yoo argues that the Clinton Administration was "one of the ones that most easily goes for the gun in foreign affairs" among recent Presidential Administrations, and states that while most Presidents had "never admitted" that the War Powers Act was constitutional and binding on the Executive Branch, they had always complied with it anyway until Clinton violated the Act in Kosovo. Yoo criticizes the Clinton Administration for never offering a public explanation for its apparent violation of the War Powers Act.

  Finally, Yoo criticizes "liberal academics" for their failure to criticize the Clinton Administration for taking these steps. Yoo suggests that these liberal academics are only interested in opposing conservative Administrations, and that they have been silent in Clinton's case because they approve of his politics. Yoo ends with a criticism of the Clinton Administration's willingness to cede U.S authority to international law and international organizations.

Related Posts (on one page):

  1. Julian Ku on Me and Yoo:
  2. More on John Yoo's Criticism of the Clinton Administration:
  3. An Interesting Contrast:
  4. John Yoo on the Intent of the Framers:
46 Comments

Sunday, September 17, 2006

An Interesting Contrast: One more thought on John Yoo's op-ed. It's interesting to contrast Yoo's comment about the Bush Administration's view of the Executive power with what he wrote a few years ago about the Clinton Administration's view of Executive power. Here is Yoo today:
A reinvigorated presidency enrages President Bush’s critics, who seem to believe that the Constitution created a system of judicial or congressional supremacy. Perhaps this is to be expected of the generation of legislators that views the presidency through the lens of Vietnam and Watergate. . . .

The changes of the 1970’s occurred largely because we had no serious national security threats to United States soil, but plenty of paranoia in the wake of Richard Nixon’s use of national security agencies to spy on political opponents. Congress enacted the War Powers Resolution, which purports to cut off presidential uses of force abroad after 60 days. It passed the Budget and Impoundment Act to eliminate the modest presidential power to rein in wasteful spending. The Foreign Intelligence and Surveillance Act required the government to get a warrant from a special court to conduct wiretapping for national security reasons.

These statutes have produced little but dysfunction, from flouting of the war powers law, to ever-higher pork barrel spending, to the wall between intelligence and law enforcement that contributed to our failure to stop the 9/11 attacks.
Contrast this with what Yoo wrote back in 2000 on the Clinton Administration's approach to executive power, as I blogged about back in February:
President Clinton exercised the powers of the imperial presidency to the utmost in the area in which those powers are already at their height — in our dealings with foreign nations. Unfortunately, the record of the administration has not been a happy one, in light of its costs to the Constitution and the American legal system. On a series of different international relations matters, such as war, international institutions, and treaties, President Clinton has accelerated the disturbing trends in foreign policy that undermine notions of democratic accountability and respect for the rule of law.
Source: John C. Yoo, The Imperial President Abroad, in Roger Pilon, ed., The Rule of Law in the Wake of Clinton 159 (2000).

  To be fair, in the 2000 essay Yoo suggests that he himself favors a strong executive, such that having an "imperial presidency" isn't all that bad. But I think it's interesting that in 2000, Yoo thought that President Clinton was "exercis[ing] the powers of the imperial presidency to the utmost," with the resulting "costs to the Constitution," whereas today he seems to lament that before Bush the Presidency was excessively weak and not playing its proper strong constitiutional role. Am I missing something, or are these statements diametrically opposed to each other?
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John Yoo on the Intent of the Framers: In a New York Times op-ed defending the Bush Administration's approach to Executive Power, John Yoo makes the following claim:
[T]he founders intended that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action, just as executive overreaching is to be checked by the courts and Congress.
Any ideas as to what historical evidence supports this claim?
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Give the Dead Their Due:

Jonathan Turley argues the deceased should have gerater protection from defamation.

publishers are protected by the longstanding rule that you cannot defame the dead (which, in practical terms, means you can). Once Elvis has left the living, you can say anything you want about him. No matter how malicious, untrue or vile.

Indeed, while most people are raised not to speak ill of the dead, the law fully supports those who do. Under the common-law rules governing defamation, a reputation is as perishable as the person who earned it.

Turley believes this traditional rule should be jettisoned in favor of one that allows for legal action against those who defame the dead. Such a rule would discorage authors, filmakers, and others from making unfounded and outlandish charges against the deceased. For those who fear an onslaught of litigation against publishers and producers, Turley offers this response:

It would be relatively simple to draft a law to add protections for writers and publishers. States could extend the high standard for defamation of public figures to any deceased person -- limiting actions to the most egregious violations in which the writer knowingly engaged in a falsehood or showed reckless disregard for the truth. The law could also limit any recovery to a declaratory judgment that corrects the public record and injunctive relief with no monetary damages.

I am not quite convinced defamation law needs this change, but Turley makes an interesting case.

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Banning the Skinny:

Spain acted first, but England and Italy may follow, adopting measures to protect the people of Europe from excessively skinny runway models. Radley Balko has the details here.

Related Posts (on one page):

  1. The Universal Passion for Banning Things:
  2. Banning the Skinny:
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Sunday Song Lyrics: Celebrating performance (or at least potential) over credentials, Jim Chen invokes Liz Phair -- thus ensuring his candidacy for coolest professor in the legal academy. Chen quoted a line from Phair's "Rock Me" (off her somewhat disappointing self-titled album) -- all potential with no credentials -- to advance a case for more meritocratic assessment of law faculties, and perhaps suggest how schools should evaluate prospective faculty hires at the AALS Faculty Recruitment Conference. Phair's lyrics evince a clear preference for rookie potential over credentials or lateral experience, but she's talking about a "meat market" of a different type.
Oh baby, you're young, but that's ok. What's give or take nine years, anyway?
I'll bet your last cigarette you won't regret my time
I want to be with a guy like you, so uncomplicated, so in tune
Just take off my dress, let's mess with everybody's mind. I've gotta tell you . . .

I want to play Xbox on your floor, say hi to your roommate who's next door
You don't have a dime, but I don't mind. Who gives a damn?
Your record collection don't exist. You don't even know who Liz Phair is.
Pure potential with no credentials ...
Your Mama taught you how to be a sensitive man
I've gotta tell you . . .

You think I'm a genius, think I'm cool
I'm starting to think that young guys rule
Oh God, let me save you, life might change you, and I might change my mind . . .
Although her more recent albums are less powerful than her earlier work, Phair can still pen a powerful song. Lyrics from her last three albums can be found on her site.
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Golfing Bleg for Access to Prairie Dunes in Hutchinson, KS.--

I am going to be at a conference at the U. of Kansas Law School in eastern Kansas on Oct. 20-21. I have long been curious about Prairie Dunes, the classic links golf course in Hutchinson, KS. I am a big fan of links courses, my favorite being Scotland's Turnberry, though Dornoch, St. Andrews, Lahinch, and Waterville are also great. The best US courses that I've played include Olympic, Yale, Brookline, and Bethpage.

Are there any VC readers who are members of Prairie Dunes (or close friends of members) who would be willing to host me for a round of golf on Sunday, Oct. 22--or arrange for me to play. I would, of course, expect to pay the guest fee (at the very least).

Only relevant comments please.

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