Saturday, October 7, 2006
How to be a libertarian Democrat:
Back in 2002, co-conspirator Randy Barnett published an op ed providing a list of steps that conservative Republicans could take to increase their appeal to libertarians without abandoning their own principles. The current internet debate about "libertarian Democrats" gave me the idea of creating a similar list for liberal Democrats. I have deliberately confined my proposals to those that do not go against basic principles of mainstream liberalism and those that are at least somewhat politically feasible. Here are the three best suggestions that occur to me:
I. Oppose Government Subsidies for Rich People.
There are numerous government programs that subsidize big business, wealthy individuals, and others who are not needy by an stretch of the imagination. Not all of these can be immediately eliminated at an acceptable political cost to Democrats, but at least some of them can. An excellent example of the latter is the massive system of federal farm subsidies, considerably expanded by President Bush's 2002 Farm Bill. The vast majority of the money goes to large agribusinesses. From the point of view of partisan Democrats, it is also worth noting that most of the money goes to socially conservative Red States (just ask uber-liberal economist Paul Krugman). If the Democrats advocate repeal of the 2002 farm bill, they can not only please libertarians, but also defund some of their most inveterate political opponents, thereby improving their political standing at little cost to themselves.
There are many similar examples of "corporate welfare" in the budget, though farm subsidies are the single largest. Many general programs such as Social Security and Medicare also give a lot of their benefits to the wealthy and the upper middle class. Means testing these programs would be one way for liberal Democrats to appeal to libertarians by reasserting the liberal principle that government should not be in the business of taking from the poor (among others) to give to the rich.
In theory, of course, many liberal Democrats already oppose these kinds of policies. But few (Krugman excepted) have made a priority of attacking them, and congressional Democrats supported the Farm Bill and most other corporate welfare polices no less than Republicans did. If Democrats put real emphasis on changing these policies and made this an important part of their political program, they could make far greater inroads with libertarians.
II. Reconsider Federalism.
Traditionally, liberal Democrats have supported a strong central government and opposed limits on its power. However, this position was premised on the notion that the federal government will usually (if not always) be under liberal Democratic control. For the last 25 years, however, and on into the foreseeable future, it is likely that conservative Republicans will control Congress and the White House as much or more often than liberal Democrats. Indeed, the Bush Administration and its congressional allies have raised the art of using federal power to override liberal policies enacted by state governments to new heights. Consider the examples of No Child Left Behind Act, medical marijuana, assisted suicide, Terri Schiavo, and a host of other cases. (for details, see the last part of my article here). Some liberal legal scholars and intellectuals, such as Franklin Foer, have taken note of these developments and have begun to argue for federalism and decentralization. But not enough to make a real difference.
Liberal Democrats are never going to support as much decentralization of government as libertarians do. But they can certainly support considerably more stringent limits on federal power than exist at present.
III. Restrain the War on Drugs.
Far more people are unjustly imprisoned as a result of the War on Drugs than as a result of President Bush's policies on the War on Terror. There are more than 300,000 Americans incarcerated for nonviolent drug offenses, including some 55% of all federal prison inmates and 21% of state prison inmates. If even 1% of these people are actually innocent of the offenses charged (probably a lowball figure), this would be far more than the total number of inmates at Guantanamo (who include a large number of genuine terrorists, as well as a certain percentage of innocents). And this approach to the issue implicitly assumes that punishing people for using drugs disapproved by the state is in itself morally justified, a premise that pro-choice liberals committed to the idea that we own our bodies may want to question.
Given the prevalence of prison rape and other abuses, it is also likely that many drug offenders undergo far worse conditions in our prisons than do Guantanamo detainees. Moreover, at least in the federal system, a defendant can be sentenced to an extremely lengthy term for possessing or planning to sell even very small quantities of illegal drugs.
As Radley Balko shows in this excellent recent paper, the expansion of the War on Drugs has led to numerous military-style raids on the homes of mostly nonviolent drug suspects. Balko cites estimates as high as 40,000 such raids per year. He also shows that these raids often kill or injure innocent people, as well as causing extensive property damage. The resulting harm (or even a fraction thereof) almost certainly dwarfs that caused by civil liberties abuses resulting from the War on Terror.
Unfortunately, a complete cessation of the War on Drugs is not politically feasible in the near future. But liberal Democrats could at least support scaling back the war at the margins. For example, there is broad public support for legalizing medical marijuana, even in conservative states. Liberal Democrats could also back Balko's proposals for abolishing military-style drug raids. Although there is not the space to list them all here, there are numerous other incremental reforms that could be enacted in this field as well. Obviously, some voters will strongly oppose even incremental Drug War reforms, but most of them are likely to be staunch social conservatives who are unlikely to support Democrats in any case.
Some liberal Democrats already support drug legalization, and I commend them for it. However, few Democrats have made the War on Drugs an important part of their agenda, and certainly liberal criticisms of that War are far outnumbered by the denunciations of War on Terror policies that, whatever their merits, pose far less danger to civil liberties than the War on Drugs does. Indeed, one small sign that libertarian Democrats have truly come of age will be the day when liberal commenters on the VC take us to task for neglecting the War on Drugs (on which some of us have real expertise) as much as they do for neglecting War on Terror detainee treatment policies (which I, at least, have no expertise on). I look forward to it!
Related Posts (on one page):
- How to be a libertarian Democrat:
- Libertarian Democrats?
The internet is abuzz with controversy over Markos Moulitsas' (A.K.A. - DailyKos) argument for "libertarian Democrats," the claim that the Democratic Party, if given power, is likely to promote libertarian values, or at least do so to a much greater extent than Republicans have. Bruce Reed of the Democratic Leadership Council, and liberal economist Mark Thoma have tried to buttress Kos' case with additional arguments of their own.
I agree with the libertarian Democrats enough to believe that a limited Democratic victory in the 2006 elections will be good for libertarian values on balance. This is not because I have any confidence in the Democrats per se, however, but because I believe that divided government can limit the growth of the state (as it did in the 80s and 90s) and that a Democratic victory is necessary to punish Republicans for their many errors and sins.
I am skeptical, however, of Kos' broader claim that Democrats are truly the party of limited government, or are likely to be more of one than the Republicans. There are two big flaws in the case: The Democrats' position on government spending, and their heavy dependence on political support from public employees' unions.
Kos and his allies in this debate have rightly focused on the Republican's massively profligate spending over the last few years. And I too am more than willing to condemn Bush and the Republicans on this score. But it is significant that the Democratic Party, for the most part, not only failed to oppose Bush's spending increases, but actually argued for even more domestic spending than the Republicans were inflicting on us. For example, Democrats opposed Bush's massive $500 billion prescription drug benefit in large part because they thought it should be even bigger than it was, and the Democratic Party today continues to argue for replacing Bush's plan with one that is even bigger. The same is true of the Democratic position on most of Bush's other major spending initiatives, such as the No Child Left Behind Act. In the 2004 campaign, John Kerry likewise called for even more domestic spending than had been approved by Bush. Although I am not going to analyze the issue in detail here, what is true for spending is also true for regulation: on most issues, the Democrats support as much or more government regulation as Bush's Republicans do.
In addition to its position on specific size-of-government issues, the Democratic Party also has a major structural obstacle that will make it difficult for its politicians to move in a libertarian direction: the Party's dependence on public employees unions. Public employee unions such as AFSCME and the National Education Association are probably the biggest and most important sources of funds and political activists for the Party. Teachers union members alone accounted for about one quarter of the delegates at the 2004 Democratic national convention (see previous link).
It is difficult to think of an interest group more inimical to limited government than public employees unions. After all, efforts to shrink government necessarily mean fewer jobs and/or less income for the union members, and less union dues to pay the salaries and provide the perks of union leaders. The need to cater to these powerful interests significantly limits the extent to which the Democrats can move in a libertarian direction. Liberal bloggers such as Kos and Thoma can afford to ignore or downplay the needs of the unions, but Democratic politicians who want to get elected to office cannot.
The Republicans, of course, have their own pro-big government interest groups, such as large agribusinesses who benefit from farm subsidies, and corporations who benefit from corporate welfare. However, at least as far as I can tell, no such interest group provides anything like as large a proportion of Republican funds and political activists as the public employees unions do for the Democrats.
UPDATE: Jane Galt/Megan McArdle of Asymmetrical Information, presents some additional criticisms of the libertarian Democrat position here.
Table of Contents for my Computer Crime Law Casebook:
I mentioned my new Computer Crime Law
casebook yesterday, and thanks to commenter Adam
I see that West has posted a .pdf copy of the Table of Contents
as well as the Index
As the Table of Contents shows, the book divides into three basic parts: 1) substantive crimes, including the Computer Fraud and Abuse Act, copyright crimes, fraud crimes, obscenity and child porngraphv law, and sentencing issues; 2) the law of collecting digital evidence, including the Fourth Amendment and the Electronic Communications Privacy Act; and 3) jurisdictional and sovereignty questions, including federalism and the role of states vs. the federal government, international computer crime law, and national security law.
Check out this paper:
My former classmate (now AU prof) Ezra Rosser's paper, "Obligations of Privilege," is now available on SSRN. Here's the abstract:
Little attention is paid to the nature of the high incomes of the rich nor to legal or norm-based obligations the rich owe society. This popular and scholarly inattention reflects the general acceptance of the idea that the rich have earned their high incomes and owe society little. By looking at income equations revealing society's role in high incomes and the obligations of the rich, the Article urges a strengthening of the obligations of the rich and rejects the argument that the legal community ought not consider the moral demands associated with high incomes.
As you can tell, Ezra's views are somewhat at variance with those of the Conspirators and our commenters. Ezra would appreciate it if those who are interested gave it a look and sent him comments. Download it while it's hot!
Friday, October 6, 2006
A Moneyball Victory:
The Oakland A's have just won their first playoff series of the Billy Beane/Moneyball era, sweeping the favored Minnesota Twins in three straight games. As described in Michael Lewis' book Moneyball, A's General Manager Billy Beane pioneered the use of statistical analysis to guide personnel decisions in major league baseball.
Thanks in large part to Beane's moneyball strategy, the A's have posted one of the best records in baseball since he took over the team in 1999, despite having a payroll less than half the size of most of their main competitors. As I explained back in August, Beane's teams have posted records comparable to those of the New York Yankees and Boston Red Sox, despite spending only about one third as much as the Yankees and one half as much as Boston.
I am a big fan of Beane and his methods, all the more so because George Mason University has used a similar approach in hiring faculty for our law school and economics department, both of which have risen in the rankings almost as fast as Beane's A's rose in the American league standings. Both the A's and GMU use statistical analysis to identify "players" whose productivity has been undervalued by their respective industries, and sign them before the competition catches on. Both also have far less money to spend on payroll than their wealthier competitors, and so have to do more with less.
Until now, however, the A's were dogged by their lack of playoff success. In 2000-2003, they lost four straight playoff series, all by razor-thin 3-2 margins; in 2004 and 2005, they narrowly missed making the postseason. Critics claimed that Beane's methods were defective because they supposedly don't work in the postseason. As Beane himself would be the first to point out, chance factors play a major role in influencing the outcome of short playoff series in baseball. Therefore, this victory does not "prove" that moneyball methods work, any more than the previous nailbiting defeats proved the opposite. However, those moneyball critics who claimed that Beane's methods are a failure because of A's lack of playoff success must now rethink their position.
Since my beloved Red Sox (who also relied on Moneyball methods in recent years) are out of the playoffs, I will definitely be rooting for the A's to go all the way and win the World Series. Hopefully, Beane is rooting for GMU to do well too:).
Malkin vs. YouTube
Michelle Malkin takes aim at YouTube alleging they are censoring consrvative, "anti-jihadi" perspectives. How is she broadcasting her claim? Why with a video on YouTube. of course.
Here's a statement from Columbia's President, Lee Bollinger (who is also a noted First Amendment scholar):
President Lee C. Bollinger's Statement on Freedom of Speech
October 6, 2006, 4:30 p.m.
Columbia University has always been, and will always be, a place where students and faculty engage directly with important public issues. We are justifiably proud of the traditions here of intellectual inquiry and vigorous debate. The disruption on Wednesday night that resulted in the termination of an event organized by the Columbia College Republicans in Lerner Hall represents, in my judgment, one of the most serious breaches of academic faith that can occur in a university such as ours.
Of course, the University is thoroughly investigating the incident, and it is critically important not to prejudge the outcome of that inquiry with respect to individuals. But, as we made clear in our University statements on both Wednesday night and Thursday, we must speak out to deplore a disruption that threatens the central principle to which we are institutionally dedicated, namely to respect the rights of others to express their views.
This is not complicated: Students and faculty have rights to invite speakers to the campus. Others have rights to hear them. Those who wish to protest have rights to do so. No one, however, shall have the right or the power to use the cover of protest to silence speakers. This is a sacrosanct and inviolable principle.
It is unacceptable to seek to deprive another person of his or her right of expression through actions such as taking a stage and interrupting the speech. We rightly have a visceral rejection of this behavior, because we all sense how easy it is to slide from our collective commitment to the hard work of intellectual confrontation to the easy path of physical brutishness. When the latter happens, we know instinctively we are all threatened.
We have extensive University policies governing the actions of members of this community with respect to free speech and the conduct of campus events. Administrators began identifying those involved in the incident as it transpired and continue to investigate specific violations of University policies to ensure full accountability by those found to be responsible.
University personnel are also evaluating event management practices that are specifically intended to help event organizers, participants and protestors maintain a safe environment in which to engage in meaningful and sometimes contentious debate across the spectrum of academic and political issues. These are some of the many steps we intend to take in the weeks ahead to address this matter in our community.
Let me reaffirm: In a society committed to free speech, there will inevitably be times when speakers use words that anger, provoke, and even cause pain. Then, more than ever, we are called on to maintain our courage to confront bad words with better words. That is the hallmark of a university and of our democratic society. It is also one of our central safeguards against the impulses of intolerance that always threaten to engulf our commitment to proper respect for every person.
I'm pleased to see this response, and I hope it will be followed up with suitable action against the thugs.
Thanks to commenter Micah for the pointer to the statement.
Thugs Block Free Speech at Columbia University:
Power Line has video and details. Here's an excerpt from the L.A. Times (no link because the Times site pointers seem busted):
Jim Gilchrist, the Aliso Viejo accountant who co-founded the Minuteman Project, was forced offstage seconds into his speech at Columbia University on Wednesday night by students who said his anti-illegal immigration message was not welcome in New York.
Gilchrist, who was invited by the Columbia University College Republicans, was unharmed but was unable to continue speaking as planned and was forced to leave the stage after an altercation with students....
The Columbia melee began after two students rushed from behind the stage toward Gilchrist and unrolled a banner that read in Spanish, English and Arabic, "No One Is Illegal."
Seeing the two, others in the audience ran toward the stage, including about two dozen who managed to get onto the 3-foot-high platform, past security guards and ropes, where Gilchrist was only a few words into his speech.
The lectern was knocked over and Gilchrist fell back, smashing his reading glasses....
No one was arrested. The incident was videotaped and shown on TV newscasts....
Oh, and here's a lovely quote from one of the "protest" participants, Columbia junior Ryan Fukumori (a board member of the Columbia Asian American Alliance and
treasurer of the Columbia International Socialist Organization:
These are racist individuals heading a project that terrorizes immigrants on the U.S.-Mexican border .... They have no right to be able to speak here.
Computer Crime Law Casebook:
I am happy to announce the publication of my new casebook, Computer Crime Law
, which has just been released by Thomson-West. As some readers know, I have been working on this casebook for several years; it's the first book devoted entirely to computer crime law, and my hope is that it will play an important role in the development of the field.
I'll probably blog a bit about the book and its approach in the future, but for now I just wanted to let folks know that the book is (finally) out.
Countries and Points of the Compass:
A puzzle from Yefim Somin (yes relation to the coconspirator) -- name three countries whose names are based on the points of the compass, but whose English names do not have the point of the compass as a word in the country name. (East Timor and North Korea, for instance, wouldn't work.)
Australia, Austria, and Norway.
"Anthrax and Lawyers":
Interesting piece by Peter Huber in this week's Forbes magazine on efforts by the federal government to spur development and acquisition of an anthrax vaccine, "Anthrax and Lawyers." According to Huber, fears of product liability litigation have deterred major pharmaceutical companies from bidding to produce an anthrax vaccine and similar fears have forced efforts to distribute the vaccine through a regulatory command-and-control distribution system rather than a market distribution system.
One interesting point he makes that I hadn't previously considered is that the higher the vaccination rate, the lower the likelihood that terrorists will launch an antrax attack (because the damage will be smaller). Ex post it will then occur that administering the vaccine will have been unnecessary in light of those who inevitably will be harmed by it. This doesn't, of course, mean that we should administer the vaccine widely, which should be a matter of ex ante risk analysis. But it does raise an interesting question about precautions, side-effects, and ex post risk analysis, an issue that Huber seems to believe the products liability system is ill-equipped to process.
I wasn't familiar with all this, so I can't vouch for all the details of what Huber describes. But assuming it is true, it raises some interesting questions about the relationship between the products liability system and national security questions.
What's this with homes or services "for the aging"? We're all aging, at precisely the same speed -- one year every year. (Or if you calculate aging as a fraction of your current age, the young are aging faster than the old.) The only ones who aren't aging are dead.
A Good Example of How Daubert Has Changed the Legal Landscape:
This opinion, by superior court judge Judith Fabricant in Massachusetts, illustrates the remarkable transformation that has occurred in American courtrooms because of the Daubert decision. Daubert requires judges to serve as "gatekeepers" who exclude unreliable expert testimony, and the judge did just that. The case involved allegations that exposure to mold caused a child's autism, and the plaintiff lined up a very well-qualified expert, an assistant professor at Harvard Medical School. Unintimidated, the judge methodically took apart the testimony, concluded that it was based on unreliable speculation, and excluded the evidence. I think it's fair to say that pre-Daubert (Massachusetts is a Daubert state) the odds that this testimony would have been excluded are rather low.
Harvard Law Faculty Votes to Revamp 1L Curriculum:
Given the historical influence of Harvard's curriculum on law school curricula nationwide, this news
is particularly interesting:
The Harvard Law faculty unanimously approved sweeping revisions to the school’s first-year curriculum in a closed-door meeting yesterday afternoon, professors confirmed last night. The vote marked the culmination of two years of work by Dean Elena Kagan and the review’s chief architect, Smith Professor of Law Martha L. Minow, as well as several other professors and administrators.
Law School officials—including Kagan and Minow—did not respond to requests for comment last evening. But Petrie Professor of Law Einer R. Elhauge '82 said the century-old first-year curriculum covering traditional common law topics—contracts, torts, property, civil procedure, and criminal law—will be constricted, and courses on policy ("Legislation and Regulation") and international law ("International Law and Problems and Theories") will be added.
I confess I tend to be pretty skeptical about proposed changes like this. In my view, the traditional first-year curriculum works because its courses lay the foundation for later study; public law and statutory courses generally build on common law origins, so I think it usually works to put the common law courses first. Of course, it may be that we think that other courses are now ultimately more important
. But if that's true, I tend to think that means such courses should be upper-level requirements rather than required first-year courses.
This doesn't mean the first-year curriculum is untouchable, of course, and without knowing the details of Harvard's plan it's hard to say anything specific. I've occasionally wondered whether property law still needs to be a required first-year course: it seems to me that relatively few advanced law school courses build on property law. I'm also not sure that Harvard's treatment of criminal law and criminal procedure as a single combined 1L course is the best approach; the two courses are pretty distinct, and in my experience learning constitutional criminal procedure as a 1L is somewhat confusing. In any event, it will be interesting to see the details of Harvard's plan, and very interesting to see if other schools follow suit.
Thanks to How Appealing
for the link.
Sherwin-Williams Shoots Back:
Two Ohio cities, Toledo and East Cleveland, sued paint manufacturer Sherwin-Williams for producing lead-based paint way back when. Now Sherwin-Williams is suing them back (along with Columbus) to stop the litigation. Among other things, Sherwin-Williams is challenging the cities' use of outside, contingenc-fee lawyers to press the litigation. This sounds like an interesing claim, so I will post a link to Sherwin-Williams complaint if I can track it down.
Bush's War on the West?
Today's Washington Post reports:
Using language that suggests they are fed up with the Bush administration, federal judges across the West have issued a flurry of rulings in recent weeks, chastising the government for repeated and sometimes willful failure to enforce laws protecting fish, forests, wildlife and clean air.
In decisions in Oregon, California, Montana and Wyoming, judges have criticized the judgment, expertise and, in some cases, integrity of the federal agencies that manage natural resources on public lands.
Whereas the headlne suggests the judges are upset with Bush Administration policy, I would think it is more accurate to say that the judges are frustrated with the Administration's execution of policy, in particular its failure to comply with various deadlines and analytical requirements. In this regard, the Bush Administration is hardly alone — the Clinton Administration also played fast and loose with some environmental law requirements, particularly in the second term — but that does not excuse the current administration's performance.
UPDATE: A commenter who works in the environmental field made some points below that I thought were worth highlighting:
As an environmental worker myself (my job is intimately related to many of the laws, as well as science, behind the cases you are citing), I know that essentially EVERY decision within the environmental realm is a political decision. Environmental science is very 'soft'-it is not determinate like physics (building a bridge with a certain strength is reasonably easy to do). It is quite indeterminate, like political science of sociology (writing a law that will result in a certain economic results is extremely difficult to do-as is writing a law with a certain impact to salmon populations, or running a dam to yield a certain depth of water downstream, etc etc).
Thus, practically every decision in environmental situations-whether policy, legal, or technical, is really a policy decision-there is no clear cut interpretation of a law or scientific study for a judge to see and apply.
So when judges say they don't like Bush's response to X (this law, that study, those salmon population data, etc) they really are saying they don't like his interpretation of the law/science/policy, and would prefer their own interpretations.
I believe there is some truth in this, particularly with regard to the "softness" of much environmental science and the policy judgments that are inherent in implementing environmental mandates.
That said, I don't think judicial invalidations of environmental policy decisions are always, or even often, based upon the judges' political preferences (though there is an academic literature debating this point). Judges are just not that prone to explicitly second-guess policy judgments. Instead, judges are very likely to identify cases in which a given agency has failed to fulfill its procedural or analytical requirements. These sorts of errors — failing to examine X or respond to concern Y — are relatively easy for generalist judges to identify, so these sorts of mistakes are most likely to lead to the invalidation of agency action. It may well be that judges scrutinize disfavored policies more closely, but I still think that most invalidations are based upon agency failures to fulfill their legal obligations.
SECOND UPDATE: Be sure to check out the comment by former Assistant Secretary of the Interior Craig Manson as well.
If Allerca can deliver on its promise to breed a hypoallergenic cat, I may have to reconsider my aversion to felines. Welcome to the world of "lifestyle pets."
Make Schools Safe for Kids, not Criminals:
In a new podcast for the Independence Institute's iVoices.org, I offer a shorter version of an argument I made in detail in a cover story of The Weekly Standard: the only realistic gun control policy which would stop school shootings would be to completely prohibit firearms, and confiscate the entire existing supply of more than 200 million firearms. Lesser policies (e.g., one-gun-a-month, gun registration) would, whatever their other merits, be unlikely to have a significant effect on school shootings. There are no substitutes for firearms (in both offensive and defensive situations), because firearms are fairly easy to use, and can project force at a distance.
Constitutional problems aside, it seems completely implausible to believe the gun prohibition could be successful, given the ability of the black market to supply drugs (which have been illegal for almost a century) to a wide variety of consumers, including high-school students.
The second-best--and much more realistic approach--would be to allow licensed, trained teachers and administrators to possess concealed handguns on school property. I agree that having police officers on school grounds would be very helpful, but it seems that there are not sufficient police resources to cover all schools all the time.
In 2004, I detailed how Israel (which has a well-established Swiss-style [civic duty] gun culture) and Thailand (whose government is very anti-gun) have armed teachers in order to protect schools against terrorists.
Today, Wisconsin State Represenative Frank Lasee stated: "To make our schools safe for our students to learn, all options should be on the table." (USA Today). "Israel and Thailand have well-trained teachers carrying weapons and keeping their children safe from harm. It can work in Wisconsin." (The USA Today article said that Israel has armed security guards, but not armed teachers; however, the sources cited in my Israel/Thailand article, supra, state that Israel has both.)
The left-side column of my home page has more links to articles by Independence Institute authors arguing that the false promise of "gun-free school zones" has made schools into one of the very few places in the United States where would-be killers are guaranteed not to face the risk of armed victims who can fight back and save lives.
Generally speaking, I have heard very few serious arguments against an armed teachers policy (for the minority of teachers who would want to carry, and would undertake the serious training which many thousands of certified firearms instructors would gladly provide for free).
Some critics state that schools are, statistically, still relatively safe, mass murders notwithstanding. This is true, but it would still be beneficial to reduce the number of children and teachers who are murdered.
Other people worry that a student might steal a teacher's gun. Putting aside the fact that it's not that difficult for a determined person to get a gun somewhere else (e.g., stealing from someone's home), the risk could be addressed through policies requiring that the gun always be carried on the teacher's body, or through similar policies.
Some persons are fearful that an angry teacher might shoot a student. But if you think that the your children's teachers might kill your child, if they had a weapon, then you ought to get your child out of that school as soon as possible. There might be too many mediocre teachers in some schools, but I don't that American teachers are borderline killers.
Finally, there are arguments that are really nothing more than generalized objections of armed self-defense, as well as to armed police. E.g., "What if the teacher aimed at the killer, but missed and hit a student?" This is always a risk--but it's a far smaller risk than allowing a killer to aim at his victims methodically. Police officers sometimes miss too, but that's not a reason to disarm the police.
"But the police are highly trained." Fine. Set the teacher training standard high too. A teacher does not need every component of police training — such as how to react if a driver in a traffic stop tries to kill the police officer. If you want teachers trained to the relevant police levels of skill in Close Quarters Combat, go ahead. Personally, I think we would be better off with a larger number of teachers who had at least a moderate level of training, rather than a small number with expert training. But even a small quantity of teachers with the tools to protect their students would be a good first step.
There are plenty of teachers who would not want to carry a firearm; of that group, some would, however, be interested in training with and carrying defensive sprays, or in learning some basic techniques of unarmed combat--particularly, how to disarm someone when his attention is distracted. I wouldn't advise anyone to bring Mace to a gunfight, but I do think that any form of skilled, practiced resistance is better than passively allowing students to be lined up against a blackboard and murdered.
If you are interested in the topic, you may also be interested in my media column which will appear in the Saturday Rocky Mountain News, which explores the terrible problem of how media coverage of school shootings leads to more school shootings. One prong of the problem is sensational coverage which publicizes the perpetrator (e.g., newsmagazines putting perpetrators on the cover). But the larger problem is that even sober, responsible coverage seems to play a role in causing copycats. For the latter problem, I have no solution, but I hope that starting the discussion might lead to other people suggesting solutions.
Related Posts (on one page):
- Training to resist school shootings:
- Make Schools Safe for Kids, not Criminals:
Thursday, October 5, 2006
George Will on the Mark Foley Scandal:
Read Will's take here
California Appeals Court Upholds State Marriage Law:
Opinion here. Next up, the California Supreme Court. And we're still awaiting a decision from the New Jersey Supreme Court.
Reader Michael Lorton poses this puzzle: What do Naples (Italy), Novgorod (Russia), and Chiang Mai (Thailand) have in common?
Their names all mean "new city."
My Vote for The Oddest Commentary So Far
about the Mark Foley story is from a former GOP leader who according to this story
recently claimed that Democratic sex scandals have been "far worse" than GOP sex scandals:
"What we don't have to do is allow our friends on the left to lecture us on morality. There's a certain stench of hypocrisy."
The source? Newt Gingrich, Speaker of the House during the Monica Lewinsky scandal, who at the time of the Lewinsky scandal was cheating on his wife
by carrying on an affair with a Congressional staffer 23 years his junior.
Environmental Economics vs. Ecological Economics:
John Whitehead at the Environmental Economics Blog offers a pithy explanation of the differences between these two fields.
NFLPA Won't Appeal Haynesworth Suspension:
An Associated Press story indicates that the NFL Players Association will not challenge Haynesworth's suspension after all. Said NFLPA executive director Gene Upshaw: "We represent both players here, and it is best for all concerned that we let the suspension stand." Still no word on potential criminal charges or a civil suit, but Andre Gurode is expected to practice today, and could be available for Sunday's game.
UPDATE: Haynesworth will not face criminal charges, according to this report, but he may yet face a civil suit, and the Tennessee Titans are considering whether to release him.
Prosecution of Foley:
Eugene writes: "Masturbating isn't a crime, fortunately, whatever the age of the person's who's masturbating; but getting a minor to masturbate for you might be, depending on the jurisdiction and on the minor's age." He then cites modern cases from California and New York which might support this theory.
It wasn't so long ago that statutory law was very clear on the subject. During the Progressive Era, there was a widespread, and successful, campaign in which medical science was used to promote laws against sexual conduct which was, supposedly, unhealthy and dangerous.
This effort led as far as statutes in both Indiana (enacted in 1881) and Wyoming (enacted in 1890) that included the following language in their criminal codes: "Whosoever entices, allures, instigates or aids any person under the age of twenty-one years to commit masturbation or self-pollution shall be deemed guilty of sodomy."
Ronald Hamowy, Preventive Medicine and the Criminalization of Sexual Immorality in Nineteenth Century America
, in ASSESSING THE CRIMINAL: RESTITUTION, RETRIBUTION, AND THE LEGAL PROCESS 78 (Randy E. Barnett & John Hagel III eds., 1977), cited in Randy E. Barnett, Bad Trip: Drug Prohibition and the Weakness of Public Policy
, book review of
America's Longest War: Rethinking Our Tragic Crusade Against Drugs (By Steven B.
Duke & Albert C. Gross. New York: G.P. Putnam's Sons, 1993. Pp. xix, 348.
$26.95), 103 Yale Law Journal 2593, 2607 (1994).
The Sodomy Law website
cites the Wyoming statute as Laws of Wyoming 1890, page 139, ch. 73, §87, and notes that the statute was repealed in 1977.
The Indiana statute
carried a penalty of 2 to 14 years. Acts 1881 Indiana, page 174, ch. XXXVII, §100. In Young v. State
, an activist state supreme court construed the masturbation statute so broadly as to apply it to cunnilingus. 141 N.E. 309 (1923). In 1973, the anti-masturbation law was amended so that it applied to persons under 18, rather than persons under 21. Acts 1973 Indiana, page 1732, Public Law No. 320, at 1733-1734, §3. The law was entirely repealed in 1976 when the criminal code was revised.
Justice Scalia and the Tequila Question:
Many VC readers have read elsewhere
about Justice Scalia's "tequila" remark at oral argument on Tuesday. I agree with David Lat
that the concern is misplaced.
First, some background. The petitioner had been convicted of possessing cocaine, served his sentence, and was then deported to Mexico. At oral argument, the question was whether his petition was moot because he was living in Mexico and was trying to challenge the criminal sentence aleady served in the United States. Counsel for the petitioner argued that the appeal wasn't moot because technically petitioner was still governed by the terms of post-sentence supervised release. Supervised release is like probation after a prison term; it's essentially a contract, in which a defendant agrees that he will abide by terms of release in exchange for being let out of prison earlier. If he violates a term of release, he can be sent back to prison (at least theoretically). The petitioner argued that a term of release was that he couldn't have any alcohol, and it was at least possible that the federal court in the U.S. could find out that he was having alcohol in Mexico and seek to have him returned to prison in the U.S. Here's the excerpt from the transcript
, with emphasis mine:
MR. CROOKS: Mr. Chief Justice and may it please the court. I would first like to address the government's contention that Mr. Toledo-Flores' appeal is moot. His appeal of his sentence is not moot primarily because he is still subject to the sentence that is the subject of that appeal. Even though Mr. Toledo-Flores was released from prison on April 21st of this year, and deported to Mexico, he is still subject to the supervised release portion of his sentence because supervised release is not automatically extinguished by deportation.
CHIEF JUSTICE ROBERTS: But there is no supervised release of people outside the United States.
MR. CROOKS: There is no supervision of people outside the United States, Mr. Chief Justice, but he is still subject to the jurisdiction of the District Court and still subject to theconditions of supervised release that are not dependent upon supervision.
CHIEF JUSTICE ROBERTS: Like what?
MR. CROOKS: For example, he should not use alcohol, he should not associate with persons.
CHIEF JUSTICE ROBERTS: What's going to happen to him if he does that?
MR. CROOKS: If the District Court learns about that he could be violated and he could face up to a year more in prison.
CHIEF JUSTICE ROBERTS: Has anything like that ever happened before to people subject to supervised release who have then beem deported? It would be the first time if the District Court did that, right?
MR. CROOKS: There have been instances in the case law where people on supervised release have been extradited back from foreign countries based on violations of their supervised release. But the point is under the statutory scheme Mr. Toledo-Flores is still subject to the District Court's jurisdiction.
A few seconds later, Justice Scalia interjects to to say that such a remote possibility wasn't sufficient in his view to keep the petition from being moot. Scalia's point was that no one actually expected the terms of supervised release to be followed after a person is deported. When a person is deported where there is no probation officer, the terms of supervised release are understood to be just form with no substance. Here is what Scalia said:
JUSTICE SCALIA: We have a case involving standing which says that — you know, the doctrine of standing is more than an exercise in the conceivable. And this seem to me an exercise in the conceivable. Nobody thinks your client is really, you know, abstaining from tequila down in Mexico because he is on supervised release in the United States, or is going — is going to apply having been deported from the country for criminal offenses, he is going to apply to come back — and look, these are ingenious exercises in the conceivable. This is just not the real world.
Justice Scalia certainly isn't one to pull punches here: as usual at argument, he is telling counsel exactly what he thinks. But is Scalia's tequila line really so objectionable? The petitioner's own lawyer was arguing that petitioner might drink alcohol in Mexico and be hauled back to serve more time on cocaine charges in the United States; Justice Scalia was saying that the latter seemed completely unrealistic. It's true that Justice Scalia did name a particular type of alcohol, rather than just refer generically to "alcohol." But the alcohol he mentioned is often celebrated as Mexico's National Drink
, so it's not clear to me why picking Mexico's National Drink as an example of the alcohol his own lawyer suggested he might drink in Mexico is necessarily offensive. Maybe I'm missing something, but I'm not aware of any stereotype by which residents of Mexico who chose to drink alcohol are considered worse or less desirable for picking the National Drink as compared to beer or wine or some other hard alcohol. I hope I'm not just being deaf to a known stereotype, and if I am I hope you'll point that out in the comment thread, but I don't see why this was so offensive when understood in context.
Wednesday, October 4, 2006
Sixth Circuit Stays Judge Taylor's Order:
The Sixth Circuit has issued a stay
pending appeal of Judge Taylor's order requiring the government to shut down the NSA domestic surveillance program. I think it's hard to read too much into that, although note that the Sixth Circuit standards do incorporate one aspect of the merits: the stay indicates that this particular panel thought that DOJ had raised at least "serious questions" about the correctness of Judge Taylor's order shutting down the program.
Hat tip: The Bashmanator
More Strange Doings on the German Art Front:
Last week it was the Deutsche Opera's announcement that it was cancelling future performances of Mozart's "Idomeneo" because one of the scenes in the production involves showing the decapitated head of Mohammed (and Jesus, Poseidon, and Buddha as well) and because of post-Danish-cartoon-imbroglio fears of a violent reaction.
This week, another brouhaha is afoot. The American artist Jonathon Hexner was commissioned by the German publication SLEEK to create a video installation as part of its EAST/WEST exhibition (sponsored by German publisher Axel Springer); the piece was to have been displayed on the screen atop the Axel Springer building in Berlin.
The piece Hexner submitted, entitled "I Like America and America Likes Me," (the phrase comes from an art "action" performed by the German artis Joseph Beuys in 1974 in New York), can be viewed here. It's a pretty neat piece — but Axel Springer has determined, oddly enough, that it is too "Anti-American" to be displayed, and they've pulled it from the exhibition. [The BBC's "World" radio program ran a story today about the controversy, which can be heard at their website.] It does seem like there's more than the usual amount of fear and loathing at the moment in Germany regarding the power of art to make people mad, and even violent, and their expressive culture is likely to be the worse for it.
Judge Pryor on Criticisms of the Judiciary:
In today's Wall Street Journal
, Eleventh Circuit Judge William Pryor responds to concerns that the judiciary today is under attack. I tend to think Judge Pryor has it about right. Thanks to Feddie
for the link.
More on the Foley Legal Issues:
Most of the legal discussion that I've seen of the Foley case has focused on whether he could be on the hook for attempting to physically seduce the pages. Might it be a crime, though, for him to try to get the page to masturbate? (It's not clear from the material that I've seen whether he was in fact trying to do that, but I suppose it's possible.)
Masturbating isn't a crime, fortunately, whatever the age of the person's who's masturbating; but getting a minor to masturbate for you might be, depending on the jurisdiction and on the minor's age. People v. Imler., 9 Cal. App. 4th 1178 (Cal. App. 1992), for instance, held that Cal. Penal Code § 288()a), "Any person who willfully and lewdly commits any lewd or lascivious act, ... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony," outlawed a person's telephoning a child and ordering him (through threats of harm to the child's parents) to masturbate while the child is on the phone:
It matters not that Imler could not touch his victim. "The touching necessary to violate Penal Code section 288 may be done by the child victim on its own person providing such touching was at the instigation of a person who had the required specific intent." The accused does not have to commit the lewd act. The defendant's intent may be inferred from his conduct which was to order the victim to commit a lewd act upon himself.
(The logic of the case would extend to persuasion without the use of threats as well.) Likewise, People v. Poplaski, 616 N.Y.S.2d 434 (N.Y. Dist. Ct. 1994), held that N.Y. Penal Law § 260.10(1), which prohibits "knowingly act[ing] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old," made punishable the defendant's phone conversations in which he directed 12-to-15-year-olds to masturbate.
My sense is that such a theory is a longshot, even if Foley was trying to get a minor to masturbate during their electronic conversation; among other things, I'm not sure that all similar statutes would be read this way, and I'm not sure that many states have such statutes that reach up to the level of the older minors who seem to have been involved in the Foley case. (I should note that some states ban using a child in a "sexual performance," which conceivably could include getting the child to masturbate in front of one person, but the Florida statute, for instance, is limited to visual performances rather than acts which someone merely hears, or is told about.) And, more importantly, it's hard to figure all this out without knowing more about exactly what Foley said, and exactly where the minors were at the time.
Haynesworth Apologizes, Will Not Appeal:
ESPN reports that Albert Haynesworth personally apologized to Andre Gurode over the phone for stomping on Gurode's face during Sunday's game between the Tennessee Titans and Dallas Cowboys. Further, Haynesworth says he accepts his punishment and will not appeal the five game suspension -- a suspension that will cost him close to $200,000 in lost salary. The NFL Players Association wanted to appeal the suspension, which is more than double the longest suspension ever for on-field conduct (two-games for throwing a quarterback onto the ground after the play ended), but such an appeal would seem to be difficult without Haynesworth's support.
There is still no word on whether Haynesworth could face additional penalties in court. Gurode is still weighing whether to press criminal charges or file a civil suit against Haynesworth. I suspect the latter decision will depend, in part, on the extent of the damage Gurode suffered. As of this morning, the press reported Gurode is still suffering from blurred vision.
A fun quote from Joseph A. Schumpeter's Capitalism, Socialism, and Democracy (I'm reading from the 3rd edition from 1950):
The conclusions alluded to at the end of the preceding chapter [unsympathetic to capitalism] are in fact almost completely false. Yet they follow from observations and theorems that are almost completely true. Both economists and popular writers have once more run away with some fragments of reality they happened to grasp. These fragments themselves were mostly seen correctly. Their formal properties were mostly developed correctly. But no conclusions about capitalist reality as a whole follow from such fragmentary analyses. If we draw them nevertheless, we can be right only by accident. That has been done. And the lucky accident did not happen.
This is from p. 82 (footnote omitted).
Tuesday, October 3, 2006
We're Not the Judean People's Front's Harvard Law & Policy Review:
dammit! We're the People's Front of Judea's Harvard Journal of Law & Public Policy. Wankers.
OK, that's not that close an analogy, but I still couldn't help thinking of it.
Related Posts (on one page):
- We're Not the Judean People's Front's Harvard Law & Policy Review:
- Harvard Law & Policy Review:
Harvard Law & Policy Review:
The American Constitution Society has launched an official journal, the Harvard Law & Policy Review
. (This is not to be confused with the Harvard Journal of Law & Public Policy
, a journal founded in 1978 that leans conservative/libertarian and is famous for its outstanding executive editing in Volume 20.)
The HLPR is accompanied by HLPR Online
, "a forum for progressive debate about new and unorthodox solutions to the most pressing problems facing the nation." There are a bunch of interesting essays up on the site's webpage by the like of Laurence Tribe, Robert Post & Reva Siegel, Joe Singer, and David Barron.
I was particularly interested in this essay
by Ian Bassin, former President of the Yale ACS student chapter. An excerpt:
Ask a group of self-described liberal law students to articulate what they stand for and you’re likely to get either rambling, incoherent replies or blank stares. Those who do answer may touch upon issues ranging from equality to opportunity to reproductive freedom, but are unlikely to be able to unite these ideas under any consistent philosophical framework. Those who have a philosophical framework are lucky if they can explain it in less than 30,000 words.
The single greatest problem of contemporary legal liberalism is that too many of us are at a loss for words to describe what we stand for. One irony is that our past success may be to blame for this current failure. Many of us grew up in such liberal atmospheres that we were never challenged to defend liberal principles or to even grapple with the difficult questions at their core. As American society has polarized over the last generation—mine is the first for whom red and blue are defining traits—more of us have grown up in homogenous intellectual spheres. Instead of having our peers challenge our ideas, we play yes men to ourselves, nodding in agreement on what we believe without ever having to utter a definitive phrase. . . .
Compare this with what a conservative at many of today’s left-leaning law schools must experience. In most of her classes, the only conservative voice she hears is her own. In order to cling to her beliefs, she must defend them tenaciously with both friend and foe. Confronted with a chorus of opposing arguments, her education is an intellectual boot camp. She’s been tested, her positions forged in fire, and she’s emerged a refined soldier for her cause. The liberal, on the other hand, has spent his period of intellectual maturation on the couch so to speak. Every once in a while either throwing or receiving that knowing look, but never having to exert too much effort to get it right. While the conservative emerges muscular and defined, the liberal is paunchy and a bit slow.
I wonder, do law students (on the left or the right) agree that this is true?
For a reaction to the new journal posted at the conservative Weekly Standard, click here
"Out of the crooked timber of humanity, no straight thing was ever made." Does anyone know the actual source for this in Kant, and the actual quote in German? A Google search for "krummen Holz" yields a number of different formulations and no actual citation. Does Isaiah Berlin (whose book I don't have on hand) give a citation?
UPDATE: Well, that was quick. Thanks, all!
Legal Issues in the Mark Foley Investigation:
The FBI is investigating whether Congressman Mark Foley violated federal law in his sexually explicit IMs and e-mail communications with House pages over the last few years. The case actually brings up a bunch of very interesting legal questions, and I wanted to explain the issues for readers who are following the story in the news.
The basic law at issue here is 18 U.S.C. § 2422(b)
, sometimes known as the federal enticement statute, which is part of the Victorian-era legislation known as the Mann Act. The basic point of the statute is making it a crime to use a means of interstate commerce to try to persuade a minor to engage in an illegal sexual act. Here's the key text:
Whoever, using . . . any facility or means of interstate or foreign commerce . . . knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in . . . any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 5 years and not more than 30 years.
Using IM or e-mail clearly counts as using a facility or means of interstate or foreign commerce. See, e.g., United States v. Tykarsky, 446 F.3d 458, 470 (3d Cir. 2006). And at least based on the e-mails we know about, it looks like Foley didn't actually succeed in persuading any minors to engage in sexual activity. So the question is whether Foley made an attempt to persuade, induce, or entice a minor to engage in an illegal sexual act.
What does this mean? Well, the answer is a little technical. It turns out that in criminal law, attempting to do something means more than just trying to do it. Different courts use different tests, but all distinguish between mere preparation to commit the crime and an actual attempt to commit it. Only the latter is prohibited. Federal courts generally use the "substantial step" test for attempt borroewed from the Model Penal Code. Under this test, a person is guilty of an attempt to commit a crime "if, acting with the kind of culpability otherwise required for commission of the crime, he ... purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime." United States v. Hsu, 155 F.3d 189, 202-203, 203 n. 19 (3d Cir. 1998) (quoting Model Penal Code § 5.01(1)(c)). As you might guess, this often requires difficult line-drawing; whether conduct is a "substantial step" or not can be mushy, and generally is a question for the jury that courts are reluctant to second-guess.
The requirement that the sexual act be "activity for which any person can be charged with a criminal offense" generally incorporates the state law where the suspect expects the illegal sexual act will occur. State laws can vary, which can make it important to figure out the state in which the suspect was trying to have the offense occur. For example, in United States v. Patten, 397 F.3d 1100 (8th Cir. 2005), a police officer in West Fargo, North Dakota, posed in an Internet chat room as a 16 year old girl. The defendant visited the chat room from his home in nearby Moorhead, Minnesota. The officer persuaded Patten to come to a grocery store in West Fargo, where the defendant was arrested. The law of North Dakota and Minnesota differ in a critical respect: in Minnesota, consensual sexual conduct between an adult man and a 16 year-old girl is legal, whereas the same conduct is illegal in North Dakota. The defendant argued that there was insufficient evidence that he had intended to engage in sexual activity in North Dakota, and therefore had not violated the federal statute. According to the defendant, he had planned to engage in the illegal activity in Minnesota, where it would have been legal. The Eighth Circuit affirmed the conviction, ruling that there was sufficient evidence from the facts of the case for a reasonable juror to conclude that the defendant intended to persuade the girl to engage in sexual activity in North Dakota. See id. at 1103-04.
So where does that bring us? Putting the pieces together, the legal question is whether Foley's communications were a substantial step in a course of conduct planned to culminate in persuading a minor to commit a sexual act that would be illegal where the act was expected to occur.
Would a jury convict on the basis of that test? I haven't done more than scan quickly through some of the published e-mails and IMs, and I'm not sure all of the communications have been made public, so I don't know whether I think a jury should
convict. And of course we would need to know what state we're talking about to answer the question fully. But whether a jury would
convict may depend at least in part on where any case would be brought, which depends on where venue is present.
In an 18 U.S.C. § 2422 case, venue is proper in "any district in which such offense was begun, continued, or completed." 18 U.S.C. § 3237(a). See United States v. Byrne, 171 F.3d 1231, 1235 n.2 (10th Cir. 1999). Although I don't know of any cases testing how far this goes, it clearly would allow a prosecution wherever Foley was or wherever the minor was who Foley may have been attempting to entice. I would guess that prosecutors are looking for IMs and e-mails sent to minors when they were back home, far from Washington DC, perhaps in socially conservative states or districts where jurors would be particularly likely to see Foley's e-mails as the danergous products of a sexual predator. If they decide to prosecute, the feds probably would bring the case in that state or district.
Trusting, Insular Communities:
The New York Times writes about the recent school shootings:
It is not clear what led [the shooter] to seek out a quiet country school in Lancaster County, Pa., but it is possible he chose it because he knew that it belonged to a trusting, insular community, where there would be no one to stop him from entering with a shotgun, a rifle and an automatic pistol.
What does this mean? If I'm not stopped from entering a school while heavily armed, is it likely because the community is "trusting" or "insular"? Would a more cynical community have said "Hey, wait a sec, you're carrying three guns into the school! We don't trust you!" Would a more worldly community have said "We're not like those hicks down the road -- we know that guns can actually kill people, and strangers who go heavily armed into a school are likely up to no good?"
My sense is that the only thing that could have stopped this murderer is someone else who's armed -- whether an armed security guard (something that even many non-trusting, non-insular schools don't have), an armed teacher, or someone else who had the requisite firepower (and willpower). Better yet would have been someone else who's armed but who's not in uniform, since even an armed but uniformed school guard could easily be surprised by the killer, who could murder him and then go inside with impunity. One can debate the merits of allowing teachers to be armed. But if one is going to talk about why there was "no one to stop [the killer] from entering with a shotgun, a rifle and an automatic pistol," that's the debate we should be having -- stressing the community's being "trusting" and "insular" as a possible cause seems to me a red herring.
Convicting the Guns (or the Bottles):
The New York Times writes about the recent school shootings:
It is not clear what led [the shooter] to seek out a quiet country school in Lancaster County, Pa., but it is possible he chose it because he knew that it belonged to a trusting, insular community, where there would be no one to stop him from entering with a shotgun, a rifle and an automatic pistol....
There are no simple solutions to this conflict. It is neither possible nor tolerable to secure every school or guard every child. Nor is it possible or politically tolerable to keep tabs on every gun. But in these killings we see an open society threatened by the ubiquity of its weapons, in which one kind of freedom is allowed to trump all others. Most gun owners are respectable, law-abiding citizens. But that is no reason to acquit the guns.
Just what is the editorial board proposing that we do? Apparently it's that we shouldn't "acquit the guns," but what does that mean? Are they urging gun registration of some guns (since they claim that they're not supporting "keep[ing] tabs on every gun")? That surely would do nothing about such school shootings. Are they implicitly urging handgun bans? Even if such bans succeeded in preventing a material number of would-be murderers from getting handguns, which I doubt, this very incident reminds us that shotguns and rifles can be at least as lethal (in fact, are in many respects more lethal, and just as usable if you're not worried about easy and convenient concealability, and are willing to carry the long gun open, to conceal it in a suitcase, or to saw it off).
When pro-gun-control forces urge restriction on guns in response to certain kinds of crimes — for instance, crimes where the criminal is trying to evade detection and capture — then it's at least credible that those controls would be limited to (say) handguns, or illegal carrying of handguns, or some such. But the only gun control that would stop people who are willing to commit multiple murder, and who don't worry about getting caught, would be (1) a total ban on guns, (2) confiscation of the likely more than 200 million guns in private American hands, and then (3) diligent action to control the black market in guns that would inevitably result. So when such multiple murders are seen as occasions for calls to gun control, however disclaimer-laden ("Nor is it possible or politically tolerable to keep tabs on every gun"), people who care about gun rights and self-defense naturally worry that the gun controllers' true goal is broad indeed.
I agree that murder and crime more broadly is a very serious problem, and that gun homicides and (to a lesser extent) other gun crimes are a very serious aspect of that problem. Likewise, for instance, alcohol-related death and crime is a very serious problem.
The question is what exactly should be done about it. Should we ban guns and alcohol? Try to seriously diminish access to them? Try to regulate them in ways that don't seriously diminish access, at least to law-abiding citizens? If we have in mind a particular manifestation of the problem (e.g., school shootings, or drunk-driving deaths, or whatever else), what policy proposals would diminish that aspect of the problem, without unduly exacerbating other problems? Hard questions, and important ones. But simply talking about "not acquit[ting]" the vodka bottle or the shotgun — an inanimate object that one would have thought wouldn't be subject either to acquittal or to conviction — hardly advances the analysis.
It struck me again today, from some flyer I noticed lying around, how peculiar it is that our two major political parties are represented by (1) a donkey and (2) an elephant. There are reasons, I suspect, that one never hears of the University of X Donkeys playing the Y State Elephants on Saturday afternoons -- they're just two of the oddest damn animals around, and wouldn't seem, at first glace, to be portraying the kind of virtues one looks for in a political party. I think the portrayals capture, in a small way to be sure, some of the American dislike and distruct of politics, politicians, and political parties.
Largest Suspension in NFL History:
On Sunday, the Tennessee Titans' Albert Haynesworth stomped on the head of the Dallas Cowboys' Andre Gurode, while Gurode was lying on the ground at the end of a play without his helmet. Gurode required 30 stitches and may press charges.
The NFL responded swiftly, suspending Haynesworth for five games. This is the longest suspension [for on-field conduct] in league history. Indeed, until now the league had not supsended a player for more than two games. Because players are not paid during suspensions, Haynesworth stands to lose approximately $500,000 for his conduct. This suspension was also the first significant disciplinary decision made since Roger Goodell assumed the post of NFL commissioner.
Haynesworth will not appeal the suspension, according to Titans coach Jeff Fisher. Nonetheless, the NFL Players Association indicated it may challenge the suspension. Fisher's respsonse seems more appropraite: This was a severe and unprecedented disciplinary action, but such is appropriate for such a severe case of unacceptable on-field conduct.
[Note: Post edited as indicated above to correct a minor error.]
WSJ Op-ed on State Courts and Daubert:
As noted previously, my op-ed on this topic appeared in the Wall Street Journal Saturday. Since there is no free link, I'm reprinting it below, with permission.
Rule of Law
By David E. Bernstein
30 September 2006
The Wall Street Journal
A recent decision by a New York court is a stark reminder that, despite far-reaching reforms, junk science still plagues American courtrooms.
The case, Nonnon v. City of New York, involves a group of plaintiffs claiming that exposure to toxic substances in New York City's Pelham Bay landfill caused their cancers. They presented no study to the trial court showing that any substance found in the landfill causes their types of cancer; and the testimony of their expert witnesses was speculative and based on a single methodologically deficient study. When one of these experts was challenged, he "persisted in providing insufficient information about his methods and incomplete information about his analysis," wrote two judges of the intermediate-level appellate division. His conclusions were at odds with the conclusion of the city's expert, who used "explicit, detailed, generally accepted methods."
Should the trial judge have approved this dodgy testimony? The two judges quoted above said no, but were outvoted by three colleagues in June. New York has a rule for excluding unsound scientific evidence, but the majority troika refused to apply it — on the question-begging grounds that it would deprive plaintiffs "suffering the ill effects . . . of environmental contaminants" from obtaining compensation.
The outcome would likely have been different had the suit been brought in federal court. That's because cases based on the sorts of "quackspertise" that once led to multimillion dollar payouts for trial lawyers — claims that breast implants cause immune-system disease, power lines cause leukemia, vaccines cause autism, and the like — now routinely get dismissed before trial. The reason is a strict reliability test for expert testimony first announced by the U.S. Supreme Court in the 1993 case of Daubert v. Merrell Dow Pharmaceuticals. But Daubert's reliability test, codified in Federal Rule of Evidence 702, only governs federal trials.
[click to continue reading]
Plaintiffs with personal injury claims backed by dubious (or worse) expert testimony have thus become ever more determined to keep their lawsuits in state courts — where, naturally, plaintiff attorneys have fought every effort to adopt Daubert and Rule 702. The trial lawyers have inertia on their side; and Daubert's reception has been particularly unfriendly in some of the most populous and influential states. California, Florida, Illinois, New York, New Jersey and Pennsylvania, for example, have all refused to follow the federal lead.
The result is a hodgepodge. At one extreme, some states such as Wisconsin apply a qualifications-only test, meaning that any marginally qualified expert can testify to just about anything without meaningful judicial oversight. Most other non-Daubert states, including New York, apply the older "general acceptance" test (Frye v. U.S.), which requires that expert testimony be generally accepted in the relevant scientific community. Unfortunately, in most jurisdictions Frye is not a significant barrier to the admissibility of junk science.
In Nonnon, for example, the majority limited the application of the Frye rule by applying it only to "novel" forms of expertise. Courts in other states have held that Frye only applies to "scientific" expertise, and then define such expertise extremely narrowly.
The Kansas Supreme Court (Kuhn v. Sandoz Pharmaceuticals Corp.) even held that a physician's testimony — claiming that ingestion of the drug Parlodel caused a woman's death — was exempt from Frye because it was not based on scientific evidence but was instead his "pure opinion." This peculiar outcome seems to suggest that the less objective the basis for an expert's scientific opinion, the less judicial scrutiny it should receive!
Even when courts do apply Frye, experts can usually evade the rule by claiming reliance on a "generally accepted" scientific methodology (such as high-dose animal studies to find suspected carcinogens) and then using it in a generally unaccepted way (extrapolating from the results of such a study to proving cancer causation in a human exposed to a much lower dose). In contrast, under Rule 702, federal judges are required to ensure that the expert "has applied the principles and methods reliably to the facts of the case."
A corporate defendant wanting to flee to a federal court has limited options. Generally it can "remove" a tort case filed in state court only if no defendants named in the lawsuit reside in the same state as the plaintiff. A plaintiff's attorney can defeat the federal court's "diversity jurisdiction" simply by adding an in-state party to his list of defendants. That's easy: For example, a plaintiff alleging that Vioxx caused his heart attack can just sue the prescribing physician or even the dispensing pharmacy, in addition to Merck.
Congress could ameliorate the situation by liberalizing the requirements for federal court diversity jurisdiction — and last year's Class Action Fairness Act was a tentative step in that direction. CAFA gives federal courts jurisdiction over class actions claiming more than $5 million in damages, unless all plaintiffs and defendants are from the same state.
Meanwhile, the situation in the states is not entirely bleak. Some legislatures are taking matters into their own hands: Georgia, Mississippi and Michigan have adopted Rule 702 by statute. And next year several states, including Florida and Virginia, are expected to consider a bill drafted by the American Legislative Exchange Council incorporating Rule 702 and Daubert. But the primary responsibility for maintaining the integrity of the civil justice system lies with state judges.
State courts need not precisely adopt the Rule 702/Daubert standard; once the highest level New York Court of Appeals reviews Nonnon v. City of New York, for example, it could endorse opinions, like those of the appellate division's dissenters, who have applied a rigorous version of the Frye test to personal injury claims. State judges have the tools to ban junk science and quackspertise. It's time for them to follow the federal lead and start using them.
Mr. Bernstein teaches at George Mason University School of Law and is the co-author of "The New Wigmore: Expert Evidence" (Aspen, 2003).
Reprinted with permission of The Wall Street Journal (c) 2006 Dow Jones & Company.
All rights reserved.
How to rise to the top of the SSRN download rankings:
The 16,170 downloads that he got for this paper have enabled the author to rise to the top of the Social Science Research Network's rankings for legal scholars with the most downloads over the last 12 months. When I post my next paper on SSRN, I'm going to have to seriously consider putting some words in the title that can't be repeated on a family-oriented blog such as the VC!
Failure to Warn:
California Court of Appeal Justice William Bedsworth reports:
[A] New Jersey jury awarded a local college student $179,001 because the manufacturer of a “loft bed” failed to warn users of the bed that if they fell out of it, they could hurt themselves....
I am presently staring -— incredulously -— at the opinion of the poor three-judge panel that had to confront this verdict. I tell you, people don’t have any idea how hard appellate work is. Imagine having to explain all the things wrong with giving someone $179,001 because no one warned him against falling out of bed.
To begin with, the plaintiff was a college student.... If this is the level of cerebration accepted by New Jersey high schools, it hardly seems surprising that poor Princeton has to go begging to the other states for students....
Tragically, “There were no warning labels on the bed, and it had never ‘cross[ed his] mind’ or ‘occurred to’ plaintiff that he could fall or that the bed was dangerous in any way. He testified that had he seen a warning, he would have been ‘aware of the hazard that was present’ and slept closer to the wall, as he had done after the accident.” Honest. Says so right in the opinion.
And he had an expert, George Widas, who testified that industry standards in the bed-making industry require that the manufacturer affix a warning “that says make sure that you protect yourself from this fall hazard.” According to Widas, the warning label should have had “black letters on an orange background” and included a warning that both identified the hazard and explained how to avoid it.
So the label should have said -- in Day-Glo green letters on a phosphorescent-pink background -— “THIS IS A BED. USE ONLY WHILE AWAKE.” Or perhaps “IF YOUR IQ IS NOT THIS TALL, YOU CANNOT RIDE ON THIS BED.” Or how about an arrow pointing downward, with the legend “FALLING IN THIS DIRECTION COULD BE HAZARDOUS TO YOUR HEALTH. FALL ONLY UPWARD OR TO THE SIDE.” ...
To their everlasting credit, the appellate panel did not just say, “What, are you crazy?” They spent 20 pages explaining the case and delineating the legal basis for their reversal of their trial court colleague. After an extremely patient and erudite explication of New Jersey law, they concluded, “The risks are so obvious here that we fail to see ... what a warning could have advised in addition to the obvious.” Judgment reversed.
Note that the claim that the bed was defectively designed because it lacked a guardrail had been dismissed earlier, and the failure-to-warn claim is all that remained. The opinion is here; thanks to How Appealing for the pointer.
Monday, October 2, 2006
Federal District Court Strikes Down Parts of Funeral Picketing Ban,
in McQueary v. Stumbo (E.D. Ky. Sept. 26, 2006) (Caldwell, J.). The challenged provision, 2006 Kentucky Laws Ch. 50, sec. 5, read:
A person is guilty of interference with a funeral when he or she at any time
on any day: ...
(b) Congregates, pickets, patrols, demonstrates, or enters on that portion
of a public right-of-way or private property that is within three
hundred (300) feet of an event specified in paragraph (a) of this
(c) Without authorization from the family of the deceased or person
conducting the service, during a funeral, wake, memorial service, or
1. Sings, chants, whistles, shouts, yells, or uses a
bullhorn, auto horn, sound amplification equipment or
other sounds or images observable to or within
earshot of participants in the funeral, wake, memorial
service, or burial; or
2. Distributes literature or any other item.
The court held that, though this provision should be analyzed under the law governing content-neutral speech restrictions, and though the court "that the state has an interest in protecting funeral attendees from unwanted communications that are so obtrusive that they are impractical to avoid," the law is unconstitutional, partly because the 300-foot buffer zone is too large. I think that's largely right, for reasons described here.
Congress outlaws gun confiscation during disasters or emergencies:
This weekend, Congress passed, and sent to the President for his signature, the Homeland Security appropriations bill, H.R. 5441. The Conference Report of the bill includes a variety of non-appropriations measures to enhance homeland security. The most notable of these is the construction 700 miles of fence along the portions of the Mexican border which are the main transit zones for illegal aliens. Also included in the legislation is a ban on gun confiscation during emergencies and natural disasters, to prevent a repeat of the post-Katrina abuses such as law enforcement officers breaking into homes and confiscating firearms from law-abiding citizens.
The new legislation is a modified version of H.R. 5013, by Louisiana Representative Bobby Jindal, which overwhelmingly passed the House in July, and which I wrote about here.
The full text is below, preceded by my summary.
Summary: (a). The bill applies to all law enforcement, including state and local. (Formally, it applies to federal law enforcement, plus anyone receiving federal funds or assisting federal law enforcement. In a disaster, this means almost everyone.) It bans gun confiscation, gun registration, and restrictions on where a firearm may be possessed; confisction, registration, and restrictions pursuant to existing laws are still allowed. People who are assisting federal disaster relief, and who are allowed to carry firearms under existing law, may not be forbidden to do so.
(b) When mass transit is being used for evacuation (e.g., busses out of New Orleans), passengers can be required to surrender their firearms for the duration of the trip, and then reclaim the firearms when the trip is over.
(c) A person victimized by a violation of this law can sue in federal district court; a prevailing plaintiff will be awarded attorney fees.
SEC. 557. Title VII of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5201) is amended by adding at the end the following:
‘‘SEC. 706. FIREARMS POLICIES.
‘‘(a) PROHIBITION ON CONFISCATION OF FIREARMS.—
No officer or employee of the United States (including any member of the uniformed
services), or person operating pursuant to or under color of Federal law, or receiving Federal funds, or under control of any Federal official, or providing services to such an officer, employee, or other person, while acting in support of relief from a major disaster or emergency, may—
‘‘(1) temporarily or permanently seize, or authorize seizure of, any firearm the possession of which is not prohibited under Federal, State, or local law, other than for forfeiture in compliance with Federal law or as evidence in a criminal investigation;
‘‘(2) require registration of any firearm for which registration is not required by Federal, State, or local law;
‘‘(3) prohibit possession of any firearm, or promulgate any rule, regulation, or order prohibiting possession of any firearm, in any place or by any person where such possession is not otherwise prohibited by Federal, State, or local law; or
‘‘(4) prohibit the carrying of firearms by any person otherwise authorized to carry firearms under Federal, State, or local law, solely because such person is operating under the direction, control, or supervision of a Federal agency in support of relief from the major disaster or emergency.
‘‘(b) LIMITATION.—Nothing in this section shall be construed to prohibit any person in subsection (a) from requiring the temporary surrender of a firearm as a condition for entry into any mode of transportation used for rescue or evacuation during a major disaster or emergency, provided that such temporarily surrendered firearm is returned at the completion of such rescue or evacuation.
‘‘(c) PRIVATE RIGHTS OF ACTION.—
‘‘(1) IN GENERAL.—Any individual aggrieved by a violation of this section may seek relief in an action at law, suit in equity, or other proper proceeding for redress against any person who subjects such individual, or causes such individual to be subjected, to the deprivation of any of the rights, privileges, or immunities secured
by this section.
‘‘(2) REMEDIES.—In addition to any existing remedy in law or equity, under any law, an individual aggrieved by the seizure or confiscation of a firearm in violation of this section may bring an action for return of such firearm in the United States district court in the district in which that individual resides or in which such firearm may be found.
‘‘(3) ATTORNEY FEES.—In any action or proceeding to enforce this section, the court shall
award the prevailing party, other than the United States, a reasonable attorney’s fee as
part of the costs.’’.
SCOTUSBlog's New Look:
For the new Supreme Court term, SCOTUSBlog has unveiled a new look with new features.
Assessing the 109th Congress:
The lead editorial in today's WSJ assesses the record of the 109th Congress, and it isn't pretty:
The 109th Congress has gone home to fight for re-election, and the best testament to its accomplishments is that very few Republicans are running on them. They're running instead against the peril to the country if the Nancy Pelosi Democrats take power.
We'll know in six weeks if this liberal fright mask is enough to save the GOP majority, but it's not too soon to say that Republicans in the 109th have been a major disappointment. The best thing about this Congress is that by doing little at least it did little harm. But despite their best chance in 50 years to reform the creaky institutions of the welfare state, Republicans couldn't maintain the unity or discipline to achieve nearly any of what they promised in 2004.
The editorial notes that some of the Republican majority's difficulties were due to a slim margin, Democratic obstructionism, and public discontent over the war in Iraq -- but these factors only explain so much.
none of this excuses the more fundamental problem, which is that too many Republicans now believe their purpose in Washington is keeping power for its own sake. The reform impulse that won the House in 1994 has given way to incumbent protection. This is the root of the earmarking epidemic, which now mars every spending bill and has become a vast new opportunity for Member corruption. This is also part of what corrupted felons Duke Cunningham, Bob Ney, Jack Abramoff, Tony Rudy and Michael Scanlon. Power for its own sake also explains the House GOP's decision to join Senate Democrats in killing serious reform of Fannie Mae and Freddie Mac, despite $16 billion in accounting mistakes or fraud. The Members are in bed with the housing subsidy lobby.
Even amid all of this scandal, many Republicans still refuse to acknowledge any problem. Appropriators continue to resist major budget reform, and the same Republicans who gave a Democratic President the line-item veto in the 1990s refused to give a weaker version to a GOP President this year. No wonder so many loyal Republican voters have been telling pollsters they're not sure if they'll vote this year.
If Republicans lose control of Congress, they'll have no one to blame but themselves.
Sunday, October 1, 2006
Mark Steyn Visits Gitmo.--
After recently visiting Gitmo, Mark Steyn writes a column focusing only on the positive side of treatment there. But in the course of his seemingly one-sided presentation, he makes a thought-provoking observation (tip to Betsy):
If I had to summon up Gitmo in a single image, it would be the brand-new Qurans in each unoccupied cell. To reassure incoming inmates that the filthy infidels haven't touched the sacred book with their unclean hands, the Qurans are hung from the walls in pristine surgical masks. It's one thing for Muslims to regard infidels as unclean, but it's hard to see why it's in the interests of the United States government to string along with it and thereby validate their bigotry.
When I put this point to Adm. Harris, he replied, "That's an interesting question," and said the decision had been made long before he arrived. He explained that they had a good working system whereby whenever it became necessary to handle a Quran — because a weapon or illicit communication had been concealed in it — a Muslim translator would be called to the cell to perform the task. But I wasn't thinking of it in operational so much as psychological terms: What does that degree of abasement before their prejudices tell them about us?
As someone who has visited a couple dozen jails and prisons over the years (including taking my students in two small seminars to two different federal prisons), I never got the sense that I could judge what life was like from just visiting. One of my mentors, the late University of Chicago Professor Norval Morris, used to recommend that I spend a weekend locked up in Stateville, which Steve Goodman in a song once called "the charm school in Joliet." Another of Morris's proteges told me that when he did this, the inmates started hassling him — and then challenged him to tell them what he was doing there. When he said that Norval had told him to spend a weekend in prison, the inmates suddenly became friendly, assuring him that, "Any friend of Norval's is a friend of ours."
Some prisons or jails that I visited were somewhat superficially dormlike (but of course with smaller windows and more locks), like the federal prison in downtown Chicago when I visited about 1980. Some were grim on their face, such as Stateville. The only one that was just horribly oppressive on entering was the early 1970s old Cook County Jail, which was filthy and stank more than any building for human beings that I've ever been in.
The Consequences of De-Evolution in Education:
Paul Hanle of the Biotechnology Institute argues that the push to marginalize evolution and teach "intelligent design" in the classroom is threatens real-world consequences, and not just in the classroom.
Proponents of "intelligent design" in the United States are waging a war against teaching science as scientists understand it. Over the past year alone, efforts to incorporate creationist language or undermine evolution in science classrooms at public schools have emerged in at least 15 states, according to the National Center for Science Education. And an independent education foundation has concluded that science-teaching standards in 10 states fail to address evolution in a scientifically sound way. Through changes in standards and curriculum, these efforts urge students to doubt evolution -- the cornerstone principle of biology, one on which there is no serious scientific debate.
Hanle makes the case that the attack on evolution has real consequences for student achievement in science.
Thirty-seven percent of the high school Advanced Placement biology examination tests knowledge of evolution, evolutionary biology and heredity, according to the College Board. Students who do not thoroughly understand evolution cannot hope to succeed on this exam; they will be handicapped in competitive science courses in college and the careers that may follow.
But, Hanle stresses, the issue is not one of "religion" versus "science" -- but ideologically motivated non-science versus science.
This is not a war of religion against science. The two have thrived together for centuries. Nor is it a struggle of believers against godless materialists; many believers practice science and find inspiration for it from their faith. It is a battle between religious dogma cloaked as science and open inquiry that leads to new knowledge and understanding of the natural world.
The notion of intelligent design is clever; it has a certain philosophical appeal. The evolution of a human eye from a series of random mutations, for example, is indeed difficult to understand; the notion of an intelligent creator solves such problems, and feeds our spiritual needs. But it distracts us from learning what is scientifically testable and reduces students' will to probe the natural world. . . .
Non-scientific viewpoints deserve respect. But to combat the spread of HIV/AIDS, bio-warfare and pandemic diseases, to discover lifesaving cures and life-improving breakthroughs, tomorrow's biologists must be equipped with scientifically based knowledge today.
Nations that value open inquiry and use scientific criteria in education, research and industry will outperform those that do not. If we are to continue to be leaders in the global economy, we must teach science, not religion, in the science classroom.
I would urge commenters to resist the urge to re-open the "is Intelligent Design science" debate, and instead focus on the question whether the teching of ID and/or exclusion of evolution has an negative impact on scientific literacy, student achievement in science, and (by extension) the scientific research and discovery in the nation as a whole.
Specter on the Senate's Workload:
From Robert Novak's latest column:
Sen. Arlen Specter, chairman of the Senate Judiciary Committee, last Monday delivered an unusually candid assessment of the Senate's notoriously light work schedule.
In a National Press Club luncheon speech, Specter noted it was "very hard to convene a Monday morning hearing" because of extended weekends. He continued: "We've fallen into a routine . . . of starting our workweek Tuesday at 2:15 after we finish our caucus luncheons, and people start to get edgy and heading for the airports early on Thursday. So we might increase the workweek by 50 percent, say, to three days."
Realizing it was highly unusual for a senior senator to talk so frankly of the chamber's work habits, Specter quickly added with a smile: "By the way, that's off the record." The speech was broadcast live on C-SPAN.
Sunday Song Lyric:
In the late 1940s, Miles Davis organized a nine-person band to record some tracks for Capitol Records. The tracks had a different sound than the be-bop that was dominating jazz at the time, and are credited with helping to launch "cool jazz." Indeed, several of the sessions, mostly recorded in 1949 and 1950, were compiled for the album Birth of the Cool.
Featuring Gerry Mulligan, Max Raoch and Lee Konitz, among others, perofrming Gil Evans arrangements, this is one of Miles Davis' many great albums. It is also one of the few to feature a vocal performance, James van Heusen and Edgar DeLange's "Darn that Dream" (although this track was not added until later printings of the album). The song was also recorded by many others, including Billie Holiday, and is today's Sunday Song Lyric.
Darn that dream
I dream each night
You say you love me and hold me tight
But when I awake and you're out of sight
Oh, darn that dream
Darn your lips and darn your eyes
They lift me high above the starry skies [moonlit sky]
Then I tumble out of paradise
Oh, darn that dream
Darn this [that] one track mind of mine
It can't understand that you don't care
Just to change the mood I'm in
I'd welcome a nice old nightmare
Darn that dream
And bless it too
Without that dream I'd never would have you
But it haunts me and it won't come true
Oh, darn that dream
UPDATE: I've corrected the lyrics to reflect how they are actually sung on "Birth of the Cool," as oppose to how they were sung by others. Thanks to readers for the corrections.