Saturday, November 18, 2006

Bush's Dad Asks For Keys to White House Back:

From the Borowitz Report.


When is it legitimate for the Media to help "out" a gay person?

Almost never, I argue in my latest media column in the Rocky Mountain News. The column begins with the outing of minister Ted Haggard, and analyzes the history of outing -- from German government officials in the early 20th century, up to the present.


Friday, November 17, 2006

Blackstone's Postscript: I have two early sets of Blackstone's Commentaries on the Laws of England, and I was reminded today of the interesting Postcript inside one of the editions (a 12th Edition, published in 1793) in which Blackstone responds to his critics. The postscript appears right after the preface from the original edition, dated November 2, 1765, which Blackstone had ended by apologizing to the reader for any errors in such a massive undertaking: "the candid and judicious reader will make due allowances for the difficulties of a search so new, so extensive, and so laborious."

  Here is the postscript that appears on the next page:
NOTWITHSTANDING the diffidence expressed in the foregoing Preface, no sooner was the work completed, but many of its positions were vehemently attacked by zealots of all (even opposite) denominations, religious as well as civil; by some with a greater, by others with a less degree of acrimony. To such of these animadverters as have fallen within the author's notice (for he doubts not but some have escaped it) he owes at least this obligation; that they have occasioned him from time to time to revise his work, in respect to the particulars objected to; to retract or expunge from it what appeared to be really erroneous; to amend or supply it when inaccurate or defective; to illustrate and explain it when obscure. But, where he thought the objections ill-founded, he hath left and shall leave the book to defend itself; being fully of opinion, that if his principles be false and his doctrine unwarrantable, no apology from himself can make them right; if founded in truth and rectitude, no censure from others can make them wrong.
Incicentally, according to the dictionary, "animadverter" roughly means "critic."

ACLU Sues Library for Allegedly Blocking Access to Second Amendment Foundation Site

(among others). The the ACLU's Complaint claims that the libraries are using filters to block certain material, and refusing to manually unblock the material on the user's request:

[T]he NCRL has configured its SmartFilter software to block Web sites in the following categories, or in categories equivalent to the following categories: Alcohol, Anonymizers, Chat, Criminal Skills, Dating/Social, Drugs, Extreme, Gambling, Game/Cartoon Violence, Gruesome Content, Hacking, Hate Speech, Malicious Sites, Nudity, P2P/File Sharing, Personal Pages, Phishing, Pornography, Profanity, School Cheating Information, Sexual Materials, Spyware, Tobacco, Violence, Visual Search Engine and Weapons. [This is necessarily a tentative allegation, based on the ACLU's current information and belief; presumably discovery during litigation will confirm or correct this.]

Plaintiff Sarah Bradburn has attempted to use computers maintained by the NCRL to conduct Internet research -– particularly regarding alcohol and drug-addiction topics -– in connection with academic assignments. When Ms. Bradburn tried to access material and obtain information relating to youth tobacco usage, the Internet filters that the NCRL had installed on its computers prevented her from doing so....

Plaintiff Pearl Cherrington is a professional photographer, her work consisting mostly of landscapes and outdoor scenes. She has attempted to use computers maintained by the NCRL to conduct Internet research and obtain information regarding art topics – including art galleries that might be interested in displaying her work. She has also attempted to use NCRL computers to conduct Internet research and obtain information about health topics. Her ability to conduct her research and obtain information via the Internet has been restricted by the filters that the NCRL has installed on its computers....

Plaintiff Charles Heinlen has attempted to use computers maintained by the NCRL to conduct Internet research and obtain information on topics relating to firearms. His ability to conduct research and access information related to firearms has been restricted by the Internet filters that the NCRL has installed on its computers. The filters have also denied Mr. Heinlen access to various dating sites, publications such as Soldier of Fortune Magazine (, the Web log (or “blog”) that he maintains at, and photographs embedded in commercial emails that are sent to his Hotmail and Yahoo! email accounts....

One of the publications that Plaintiff SAF sponsors is Women & Guns, a magazine with its own Web site, located at Women & Guns is written and edited by women, for women. It covers topics such as self-defense, personal protection, recreational shooting, new products and legal issues. Women & Guns’ Web site has been blocked by the Internet filters that the NCRL has installed on its computers. The information contained in Women & Guns is protected by the First Amendment of the Unites States Constitution and by Article I, Section 5 of the Washington State Constitution. Because the NCRL’s Internet filters have blocked access to on the NCRL’s computers, SAF has been prevented from communicating with Internet users in North Central Washington who rely on public library computers for Internet access.

Whether libraries have a First Amendment duty to disable filters on patron request is an unsettled question; the Court's United States v. American Library Ass'n (2003) left the matter unresolved. The ACLU's Web page also says that "the U.S. Supreme Court has interpreted the [federal library funding law that requires some filtering out of sexually explicit material] to mean that libraries should disable those filters upon the request of an adult," but in my view that's an overreading of ALA. Those who want to read my quick summary of the current state of the Supreme Court's law of government-funded speech can click below. (Note that the summary is from the relevant chapter of my First Amendment textbook; it is necessarily sketchy, since it's aimed at students who will read the summary and then [supposedly] read the cases that the summary refers to.)

Nonetheless, while the ACLU's First Amendment argument is far from an obvious winner, the case is important and interesting (and will be even more so if it ends up leading to an appellate decision, rather than just settling). And it's good that the ACLU is exposing such practices on the library's part, practices that strike me as bad service to Washington residents, even if they are ultimately found to be constitutionally permissible.


[Carolyn Ramsey (guest-blogging), November 17, 2006 at 11:23am] Trackbacks
The Failure of Intimate-Violence Prevention:

My intimate homicide data does not conclusively explain why the criminal justice system in the late 1800s and early 1900s punished intimate murders committed by men but failed to prevent them from occurring. However, my University of Colorado Law Review article (see 77 Univ. Colo. L. Rev. 101 (2006)) offers several hypotheses: “First, the decline of neighborly and family intervention against intimate violence thrust the problem upon a police force that was too corrupt and brutal to handle it effectively. Second, caught in a cycle of violence and dependence, some victims impeded solutions by refusing to seek or accept help from the police. Third, whereas Victorian social values . . . generally condemned a man’s brutality against his girlfriend, wife, or family, the same countercurrents that produced intimate assaults frustrated efforts to curb them.”

Nineteenth-century police officers were widely criticized in the press for being partisan and unprofessional and for using excessive force against criminal suspects. Some of them beat or even killed their own wives, as well: “In 1891, for example, on-duty patrolman William Smith inflicted a fatal head injury on his wife with his truncheon after she interrupted him at the [New York] saloon where he drank and caroused with another woman. Police officers’ notorious readiness to lie, cheat, and assault may have . . . deterred victims from seeking their assistance.”

The arrest and prosecution of batterers was hampered by the unwillingness of victims to report abuse and by victims' tendency to recant their allegations before or during the criminal trial. As I note in my article:

Two [other] factors seem to have led to non-reporting and victim recantation. First, as the Borgstrom case [see 70 N.E. 780 (N.Y. 1904)] demonstrates, a visit from the police might cause an abuser to become even more violent. A typical New York City woman was afraid to have her husband arrested for beating her ‘as he would murder her if he ever got out [of prison].’ Second many victims of intimate abuse worried that their family’s livelihood would be destroyed by a criminal case. Battered wives, in particular, might face terrible hardship if the men upon whom they depended financially were imprisoned, fired from their jobs, or shunned by business associates for being wife beaters. The spouse of New York City police officer William Smith, who clubbed her with his truncheon, attempted to keep the cause of her ultimately fatal injuries a secret. As her brother testified, ‘she was shielding [her husband], she was afraid he would be broken off the police if she reported his attack on her.’

Some police officers did respond to reports of intimate violence, but their efforts often “met other forms of resistance, besides victim recantation. Some were shot or faced life-threatening assaults from wife-beaters and their cronies.” In New York City in 1891, for example, Officer Herrlich was assaulted by an allegedly abusive husband’s friends, who pelted the officer “with stones and huge pieces of ice” when he responded to a call for help. As I contend in my article:

Such incidents confirm the resilience of beliefs in the wife-beating prerogative. However, I am less convinced than other feminist scholars that the white male establishment simply transformed its rhetoric to hide a firm commitment to the brutal subjugation of women. Rather, in my view, the ice-throwing incident described above [and the intimate murder cases that I analyze in my article] reveal a deep cultural rift over the issue of intimate violence . . . Punishing murderers may have reinforced the status regime ensuring that the white male establishment did not undermine its claims to legitimacy by shedding too much intimate blood.

Nevertheless, resilient beliefs in the wife-beating prerogative were not synonymous with a conspiracy against women. In my view, it is more plausible that, instead of being controlled by a hegemonic gender ideology, late nineteenth-century and early twentieth-century America was divided over whether violence had a legitimate place in family government. The press and the jury box demonstrated little empathy for males who killed their intimates, and policemen like Officer Herrlich even attempted to quell the battering before it escalated to homicide. In spite of such efforts, some American men continued to believe that ‘a few thumps once in a while can do no harm.’

. . . [T]he same values that promoted protectiveness toward women contained loose threads that often unraveled in actual intimate relationships. Frustrated by their inability to achieve success in the public sphere, husbands, fathers and brothers may have stuck angrily at those who loved and lived with them. Told to be sober, restrained, and industrious, some [Victorian] men rebelled and were none of these things. As ideals of masculine physicality began to supplant Victorianism around the turn of the century, certain aspects of the new ideal seemed to resonate with the violent conquest of women. Even though public figures like [Theodore] Roosevelt denounced child-murder and wife-beating and placed the American mother on a pedestal, other voices — including those of eminent scientists — celebrated men’s primitive sexual instincts as a counterweight to the ‘unnatural’ behavior of the woman suffragists. This competing strand of early twentieth-century culture suggested that, if females failed to be modest, refined, and maternal, all bets were off . . . [w]oman must then bear the brunt of unfettered masculine violence.’ In increasingly anonymous urban environments that were not policed effectively, such tensions and countercurrents killed.

My article ends with cases from the Progressive Era. I am now starting a book project that would extend my research beyond 1920 to discover how and why sympathy for women accused of murdering male intimates waned, so that the efforts of defense attorneys to introduce battered woman’s syndrome evidence in the late twentieth century were initially met with hostility from the bench and the legal academy. My current hypothesis goes something like this: When women gained the vote and began to work side-by-side with men in the public sphere, the paternalism that characterized public responses to the homicide cases of the late 1800s and early 1900s diminished.

In writing this book, I plan to expand the geographical scope of my research to include other American states, such as California, Massachusetts, and Illinois. I also would like to include data from other countries. For example, I am investigating the possibility of using secondary scholarship and archival material from Australia to assess whether another frontier society approached the problem of lethal intimate violence in a comparable way to Colorado. Because my research is ongoing, I would be especially gratified to receive feedback on the material I have posted here.


Borat Speaks:

Sacha Baron Cohen comes out of character to defend "Borat" from its critics.


One More State Constitutional Decision:

The 1846 case Nunn v. State was the first case in which a court used the Second Amendment to invalidate a gun control law. The Georgia legislature had banned the sale and possession of knives intended for offensive or defensive purposes and pistols, except "such pistols as are known and used as horse man's pistols." The law made an exception which allowed possession (but not sale) of the banned weapons if the weapon were worn "exposed plainly to view."

The Georgia Constitution at the time had no right to arms provision, but the state Supreme Court combined natural rights analysis with the Second Amendment to declare the law unconstitutional:

[When] did any legislative body in the Union have the right to deny to its citizens the privilege of keeping and bearing arms in defence of themselves and their country?

. . . [T]his is one of the fundamental principles, upon which rests the great fabric of civil liberty, reared by the fathers of the Revolution and of the country. And the Constitution of the United States, in declaring that the right of the people to keep and bear arms, should not be infringed, only reiterated a truth announced a century before, in the act of 1689, "to extend and secure the rights and liberties of English subjects"--Whether living 3,000 or 300 miles from the royal palace.
The Georgia court kept the introductory clause to the Second Amendment firmly in view: "our Constitution assigns as a reason why this right shall not be interfered with, or in any manner abridged, that the free enjoyment of it will prepare and qualify a well-regulated militia, which are necessary to the security of a free State." Thus:

If a well-regulated militia is necessary to the security of the State of Georgia and of the United States, is it competent for the General Assembly to take away this security, by disarming the people? What advantage would it be to tie up the hands of the national legislature, if it were in the power of the States to destroy this bulwark of defence? In solemnly affirming that a well-regulated militia is necessary to the security of a free State, and that, in order to train properly that militia, the unlimited right of the people to keep and bear arms shall not be impaired, are not the sovereign people of the State committed by this pledge to preserve this right inviolate?...

The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta! And Lexington, Concord, Camden, River Raisin, Sandusky, and the laurel-crowned field of New Orleans plead eloquently for this interpretation! And the acquisition of Texas may be considered the full fruits of this great constitutional right.

(italics omitted). The opinion concluded by holding that the ban on concealed carrying was valid because it did not interfere with a citizen's Second Amendment right; but insofar as the law "contains a prohibition against bearing arms openly, [it] is in conflict with the Constitution, and void . . . ." Since the indictment did not specify that Nunn's weapon was concealed, the charges were quashed.


A Pretty Easy Question:

As I type this, the VC is featuring an ad for the movie Fast Food Nation, which asks, "Who do you think is harmed most by fast food chains: the animals; the workers; or the consumers?"

Hmm, unless McDonalds et al. are paying for the slaughter of workers and consumers, grinding them up, cooking them, and serving them in their restaurants, I'll have to go with "the animals."


More on Milton Friedman and Israel:

Building on Ilya's last post, I remember reading a funny story about a visit by Milton Friedman to Israel in the 1970s, which may or may not be aprochryphal. To understand the story, you need the following background information: First, Israel traditionally has had a five and a half day workweek. Second, in the 1970s many Israelis worked for state-owned enterprises, which, due to a combination of stifling labor union rules imposed by the hegemonic Histadrut labor federation and typical bureaucratic ineptitude and slothfulness, didn't pay very well, but required very little effort from employees (like the old Soviet joke: we pretend to work, they pretend to pay us).

According to the story (to the best of my recollection), Friedman, in Israel, is talking to a large group of business, labor, and political leaders. One of the business leaders gets up and asks, "Professor Friedman, what do you think of the idea of following the lead of the United States, and having our employees work five days a week?" Friedman responds, "I think that's much too drastic a step and will upset labor-management relations! Instead, why don't you start by getting your employees to work one day a week, and then, over time, ratchet it up to two, then three; eventually, over many years, maybe you can get them to work five days a week!"


Milton Friedman on Israel and Jewish Support for Socialism:

David Bernstein's post on the excesses of Israeli socialist ideology remind me of Milton Friedman's 1972 essay, "Capitalism and the Jews: Confronting a Paradox," (I haven't been able to find an online link, but it's available in Kurt R. Leube ed., The Essence of Friedman at 43-57 (1987)). Friedman addressed the interesting question of why Jews tend to be hostile to capitalism and sympathetic to socialism despite the fact that, historically, Jews have been most successful and most tolerated in those societies where free markets and civil society were relatively unfettered, and suffered most from anti-semitism in highly socialized and statist economies (worst of all under Soviet socialism and, of course, Hitler's National Socialism).

He argues that Jewish support for socialism was partly a reaction to the fact that in 19th and 20th century Europe, the right-wing parties tended to be nationalistic and anti-semitic, so that Jews were naturally drawn to their political opponents (at the time mostly socialists and statist liberals). More interestingly, Friedman suggests that Jewish socialism was in part a reaction to the stereotype of the Jew as a greedy capitalist, an attempt to "prove" the stereotype wrong. He specifically references Israeli attitudes as the most extreme manifestation of this mentality. And in fact early socialist Zionist ideology emphasized the need to reject the stereotypes associated with Diaspora Jews; socialist Zionists called for what they called "Negation of the Diaspora." They especially decried the association of Diaspora Jews with trading and capitalist commercial enterprise, but also (to a lesser extent), private philanthropy and civil society organizations of the kind foolishly denounced by Israel's socialist Defense Minister Amir Peretz, quoted in David's post.

Despite Peretz's idiotic comments, my impression is that "Negation of the Diaspora" and its associated anti-capitalism is a less powerful force in Israeli political culture today than it was early in the state's history. Hopefully, attitudes like Peretz's are on the way out.

Related Posts (on one page):

  1. More on Milton Friedman and Israel:
  2. Milton Friedman on Israel and Jewish Support for Socialism:
  3. Talk about your tired Socialism:

Thursday, November 16, 2006

Law Students Donating Canned Food To Get Immunity from Being Called on in Class:

At various law schools, student groups organize what are sometimes called "canned immunity" drives — if students donate canned food that will end up going to a soup kitchen or some similar charity, the professors agree not to call on them. I've always been vaguely uneasy about this, but I'm not sure whether I should be.

Before people start bringing up general libertarian arguments, note that the question isn't whether this practice should criminalized, but rather whether there's something improper about it that should lead me to decline to participate. What do readers think?

UPDATE: I inadvertently omitted an important fact, though fortunately many commenters filled this in -- this drive lasts a day or two, as does the potential immunity from being called on.


Talk about your tired Socialism:

Would you believe Israeli Defense Minister and former socialist labor leader Amir Peretz criticizing a wealthy citizen for being charitable because it's the job of the state, and only the state, to help individuals who need it? Sheesh!

Defense Minister Amir Peretz on Thursday blasted business tycoon Arkady Gaydamak for financing a free weekend in Eilat for 800 residents of the rocket-battered western Negev town of Sderot.

"The state of Israel does not allow rich men and philanthropists to gain control from the distress of citizens," said Peretz. "This phenomenon cannot continue. We will prepare an organized and established plan to alleviate these residents so they will not need to knock on the doors of philanthropists."

One thing I've noticed in my frequent contacts with Israel and Israelis (being married to an Israeli) is that the Israeli state managed to severely damage the philanthropic impulse that once dominated Jewish life. A combination of statism taught in public schools, combined with the prevalent (and understandable) idea that one is owed something by the state after years and years of military service, has led many Israelis to conclude, completely contrary to Jewish tradition, that charity and volunteerism is for suckers. You can see how the attitude of folks like Peretz doesn't exactly help.


Friedman Obituary: The New York Times's obituary for Milton Friedman is here. Thanks to Ramza for the link.

Milton Friedman, RIP:

As numerous commentators will point out today, Milton Friedman, who just passed away, was probably one of the two most influential economists of the last century, along with Keynes. Along with F.A. Hayek, Friedman also played a key role in rescuing libertarian and classical liberal political thought from the intellectual oblivion that threatened to engulf it in the period from roughly 1932 to the late 60s. Without Friedman and the scholars he influenced, it is possible that big government conservatism would have become the only intellectually respectable alternative to the left in the wake of the Great Depression and World War II.

In addition to his more technical scholarship in economics, Friedman also invented an impressive range of public policy proposals, many of which remain relevant today. For example, his 1955 essay "The Role of Government in Education" introduced the idea of school vouchers, which recent studies show provide far greater benefits to poor and minority students than any other potential education policy reforms. Friedman was also a longtime proponent of the volunteer military on both economic and individual rights grounds. The abolition of the draft in 1971 was partially a result of his advocacy and its influence on political conservatives (most of whom previously were inclined to support conscription). Other influential Friedman policy ideas include the negative income tax (on which today's earned income tax credit is partly based), and - of course -the monetary rule. Somewhat unfortunately, Friedman (at that time still a left-winger) also invented the idea of income tax withholding while working as an economist for the the Treasury Department during World War II. Although Friedman intended it to be a temporary wartime measure, it soon turned into a permanent expansion of government power - a result that the later, libertarian Friedman would surely have predicted:)!

On a more personal note, reading Friedman's book Capitalism and Freedom when I was 14 (recommended by my father) was one of the key influences that led me to become a libertarian. Along with Friedman's later book Free to Choose, it remains the best introduction to libertarianism written for a general audience. Even 45 years after initial publication, it is still highly relevant, with very few sections that today seem dated.

Related Posts (on one page):

  1. Milton Friedman, RIP:
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Today Seems To Be State Constitutional Decision Excerpt Day:

From Beebe v. State, 6 Ind. 501 (1855), which struck down a law that banned the manufacturing of alcohol but excepted specially licensed manufacturing for distribution to the government for medical purposes (paragraph breaks added):

And we may as well remark here as anywhere, that if the manufacture and sale of these articles are proper to be carried on in the state for any purpose, it is not competent for the government to take the business from the people and monopolize it.

The government can not turn druggist and become the sole dealer in medicines in the state; and why? Because the business was, at and before the organization of the government, and is properly at all times, a private pursuit of the people, as much so as the manufacture and sale of brooms, tobacco, clothes, and the dealing in tea, coffee and rice, and the raising of potatoes; and the government was organized to protect the people in such pursuits from the depredations of powerful and lawless individuals, the barons of the middle ages, whom they were too weak to resist, single-handed, by force; and for the government now to seize upon those pursuits is subversive of the very object for which it was created, and is inconsistent with the right of private property in, and pursuits by, the citizen. "A government is guilty of an invasion upon the faculties of industry possessed by individuals, when it appropriates to itself a particular branch of industry, the business of exchange and brokerage for example; or when it sells the exclusive privilege of conducting it." Say's Political Economy, note to p. 134.

There are undertakings of a public character, such as the making of public highways, providing a uniform currency, &c., that a single individual has not power to accomplish, and which government must therefore prosecute: but they are not the ordinary pursuits of the private citizen. These, certainly, as the general rule, and we are not now prepared to name an exception, the government can not engage in. This is all we shall here say upon this point. Time and space forbid that we should elaborate all that arise in the case.


Another State Constitutional Decision:

This is from Herman v. State, 8 Ind. 545 (1855), a one-judge decision issued by a state supreme court judge considering a petition for a writ of habeas corpus. Herman was one of the state court decisions that held unconstitutional state alcohol prohibition laws, though other cases in other states upheld them. I have added the paragraph breaks.

[T]he right of liberty and pursuing happiness secured by the [Indiana] constitution, embraces the right, in each compos mentis individual, of selecting what he will eat and drink, in short, his beverages, so far as he may be capable of producing them, or they may be within his reach, and that the legislature cannot take away that right by direct enactment. If the constitution does not secure this right to the people, it secures nothing of value.

If the people are subject to be controlled by the legislature in the matter of their beverages, so they are as to their articles of dress, and in their hours of sleeping and waking. And if the people are incompetent to select their own beverages, they are also incompetent to determine anything in relation to their living, and should be placed at once in a state of pupilage to a set of government sumptuary officers; eulogies upon the dignity of human nature should cease; and the doctrine of the competency of the people for self-government be declared a deluding rhetorical flourish.

If the government can prohibit any practice it pleases, it can prohibit the drinking of cold water. Can it do that? If not, why not? If we are right in this, that the constitution restrains the legislature from passing a law regulating the diet of the people, a sumptuary law, (for that under consideration is such, no matter whether its object be morals or economy, or both,) then the legislature cannot prohibit the manufacture and sale, for use as a beverage, of ale, porter, beer, &c., and cannot declare those manufactured, kept and sold for that purpose, a nuisance, if such is the use to which those articles are put by the people....

We think the constitution furnishes the protection [in this case]. If it does not in this particular, it does, as we have said, as to nothing of any importance, and tea, coffee, tobacco, corn-bread, ham and eggs, may next be placed under the ban. The very extent to which a concession of the power in this case would carry its exercise, shows it cannot exist.

I do not vouch for the quality of this as a constitutional assertion, nor aim to discredit it -- here I only quote it as interesting rhetoric.


Now There's a Ringing Defense of Self-Defense:

From Aldrich v. Wright, 53 N.H. 398 (1873) (paragraph breaks added):

Higher and earlier in its origin than the constitution or the common law, not superseded by those temporal and finite systems, but sustained and enforced by their declaration and sanction of the highest, primary, eternal, and infinite law of nature the right of defence cannot be prescribed within the limits of a narrow technical rule. It is an original and comprehensive prerogative, necessarily ascertained and defined by natural reason. It is not established by any fallible authority, nor measured by any precedent, nor restricted by any arbitrary dogma.

Long upheld by the common law, it has, under the administration of that law, theoretically been what it was before; and now, reinforced by a constitutional guaranty, it is what it has always been. The authorities of the common law show what it has been held to be by men whose opinions are entitled to great consideration. If any discrepancy should be found in the definitions of it given by common-law precedent and by natural reason, the latter must prevail, because the right is explicitly asserted in the bill of rights as a natural right, and not as one defined by common-law authorities.

The New Hampshire Constitution provides (and provided at the time), "All men have certain natural, essential, and inherent rights, among which are, the enjoying and defending life and liberty, acquiring, possessing, and protecting property; and, in a word, of seeking and obtaining happiness."


Alabama Constitution, Article I, § 35:

"That the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property, and when the government assumes other functions it is usurpation and oppression." Says so right there, in the constitution.


Amicus Brief in Forthcoming Supreme Court First Amendment Case:

My Mayer Brown Rowe & Maw colleague Don Falk and I just filed an amicus brief on behalf of the American Legislative Exchange Council in Davenport v. Washington Education Association, which the Court will be hearing soon. The case is quite interesting, and while our brief is intentionally short and narrow, I hope it will be helpful.

Related Posts (on one page):

  1. Restriction on Union's Political Use of Coerced Fees from Non-Members:
  2. Amicus Brief in Forthcoming Supreme Court First Amendment Case:

Milton Friedman, 94, Champion of Liberty:

I've just learned that Milton Friedman died today. He was, without question, one of the twentieth century's greatest champions of liberty. The debt of intellectual gratitude that I, along with so many others, owe him, is simply immense. Without realizing it at the time, I virtually grew up on Friedman, as my dad's self-tutoring in economics owed a great deal to his weekly Newsweek columns. I first read Friedman myself when I was in college, and his influence on me was, and remains, profound. Every so often I go back and read Capitalism and Freedom and am amazed at how many important insights that little book contained. In hindsight, my work on race and economic regulation during the Lochner era is a direct outgrowth of reading Capitalism and Freedom, as I told Friedman many years ago. I did have the good fortune to meet him once, and beyond his great intellectual power, and his tremendous positive influence on the world, he (unlike many other notable libertarians of the 20th century) was an absolute mensch.

My condolences to the Friedman family, and to all who loved and admired him.

UPDATE: One more thing about Friedman's importance: in the 1960s and '70s, believing in free market economics left one vulnerable to being considered a nutjob. But Friedman, with his genial manners and incredibly strong academic credentials provided an incredibly important antidote to such calumny. Even today, when acquaintances of my father suggest that libertarian ideas are the preserves of "nuts," he responds, "do you think Milton Friedman is nuts?" And no one ever had the guts to suggest that Milton Friedman was nuts. That is to say, Friedman provided libertarian ideas generally, and economic ideas in particular, with a level of intellectual respectability that I'm quite certain gave many scholars, among others, of a later generation the fortitude to pursue truth as they understood it.

Related Posts (on one page):

  1. Milton Friedman, RIP:
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Massachusetts v. EPA Event:

Massachusetts v. EPA is easily the most important environmental case before the Supreme Court in several years. The primary issues are whether the Environmental Protection Agency has the authority to regulate vehicular emissions of greenhouse gases under the Clean Air Act and, if so, whether it properly denied petitions asking the agency to do just that. The case also presents an interesting standing question, and will provide an important indication of how the Roberts court will treat innovative standing claims. The oral argument is scheduled for the end of the month.

I participated in an amicus curiae brief with other law professors and the Cato Institute (which should soon be available here), and I plan to blog a fair amount on the case in the weeks ahead. Next Tuesday I will also be speaking on a panel discussing the case at the American Enterprise Institute in Washington, D.C. Also on the panel are Georgetown's Lisa Heinzerling (who worked for the petitioners in the case), Michigan's Barry Rabe, and Ed Warren of Kirkland & Ellis. Event details and registration info are here. The merits briefs of the parties and many (though not all) of the amici are available here.


Student Freedom and Academic Honesty:

I hope to post a bit more about the Missouri State University case, student freedom, and the compelled speech doctrine. But right now, I wanted to raise a separate question that I hadn't seen much covered in the news accounts of the story.

The student alleged -- and it appears that the university president called the allegations in the complaint "pretty much accurate" -- that a professor had tried to require that students sign a letter to the legislature promoting equal treatment for homosexuals in foster parenting and adoption. I think that's a violation of the student's academic freedom rights and First Amendment rights.

But isn't it also dishonest? Letters to the legislature are generally understood to be the opinion of the signers (except in certain well-understood circumstances, such as if the letter is signed by an agent -- such as a lawyer or a lobbyist -- on behalf of the people or organizations that the agent represents). If I send a letter with twenty people's signatures on it, I'm saying that the letter represents the people's views. The whole point of having the twenty signatures would be to suggest to readers that this is a view that many people hold, and that legislatures should pay special attention to this view. (A letter may also be intended to persuade through the force of its reasoning rather than through the number of its signatories, but if that were the only purpose, there'd be no need for any signatures, much less for many.)

Obviously, if I forged someone's name on the letter, I'd be lying to the legislature. Likewise, I'd be lying to the legislature (and not just to the signers) if I'd told the signers that they were signing one letter, but in reality they were signing something else -- I'd be misrepresenting to the legislature what the signers' beliefs actually were.

But I think that I'd be acting dishonestly even if I simply required (as a condition of success in a class or success on the job) that people sign the letter: Their signatures would be there not necessarily because they believe in what the letter says, but because I coerced them into signing it. (The same would be true if I bribed them into signing the letter.) Of course, there wouldn't be any dishonesty if the letter expressly said "We were required to sign this letter as a class project," but I rather doubt that this happened, since that would have defeated the purpose of sending a letter to the legislature. (The complaint alleges not just that the students had to write the letter as an assignment, but that the class was to write the letter, each student would sign it, and the letter would then be sent to the legislature on MSU letterhead.)

Now naturally there are borderline cases, for instance if I don't require people to sign the letter, but urge them to do so in ways that might make them feel that they ought to sign to get benefits (or avoid harms) from me in the future. But as I understand the allegations in the complaint, the instructor's instructions weren't on the borderline: The instructor allegedly made this part of a class assignment. If things had gone as the instructor had planned, the legislature would have gotten a letter purporting to express the signers' views -- without being told that the signers were required to state someone else's views, rather than genuinely stating their own.

So it seems to me that, if indeed these allegations are "pretty much accurate," the instructor wasn't just planning to violate the student's academic freedom rights. The instructor was also planning to do something that violate his duty of honesty, in implicitly representing to the legislature that the letter's signers believed its contents, without revealing that the signers were in reality required to sign.

Related Posts (on one page):

  1. Student Freedom and Academic Honesty:
  2. Interesting University Student Freedom Case:

DOE Complaint Alleging Bias In Admissions Against Asian Students at Princeton

It will be interesting to follow this one. I remember many years ago reading an article in one of the newsweeklies (that I wished I had saved, but didn't), that contained a couple of startling bits of information. One was a quote from an official at one of the U.C. schools, I think it was Berkeley, protesting that "if we admitted students just based on their academic credentials, we'd wind up with 80% Jewish and Asian freshmen" (horrors!), or words to that effect (the 80% figure, along with the blatant acknowledgment that it would be problematic to have a class that's "too Jewish" and "too Asian" stuck in my mind). The other was that several Asian-American parents a year (this was in the 1980s) threatened to sue the U.C. system over discrimination in admissions, and the response of the system was to quietly admit these students to avoid litigation.

Anyway, here's the story:

Yale freshman Jian Li has filed a federal civil rights complaint against Princeton for rejecting his application for admission, claiming the University discriminated against him because he is Asian.

The complaint, which was filed with the U.S. Department of Education's Office for Civil Rights on Oct. 25, alleges that the University's admissions procedures are biased because they advantage other minority groups, namely African-Americans and Hispanics, legacy applicants and athletes at the expense of Asian-American applicants.

"We've been notified of the complaint and asked to provide information to the Office of Civil Rights, and the University will provide the Office of Civil Rights with the information that it has requested," University spokeswoman Cass Cliatt '96 said yesterday. "But I will say that we do not believe that the case has merit."

The case, first reported this weekend by The Wall Street Journal, injects new life into a longstanding debate surrounding affirmative action and whether race can or should be a factor in college admissions. Li's minority status adds a new twist to the story, however, since previous complaints about universities' racial preference policies have been filed by white students alleging bias.

Li cites a recent study conducted by two Princeton professors as evidence for his case. The study, published in June 2005, concluded that removing consideration of race would have little effect on white students, but that Asian students would fill nearly four out of every five places in admitted classes that are currently taken by African-American or Hispanic students. ...

Princeton maintains that its admission policies do not discriminate against Asian-American or members of any other race. "We treat each application individually and we do not discriminate on the base of race or national origin," Cliatt said. "To the contrary, we seek to enroll and do enroll classes that are diverse by a multitude of measures."

UPDATE: FWIW, my own view, expressed quite explicitly in You Can't Say That!, is that private universities have an expressive association right to engage in affirmative action preferences, so long as they defend such preferences as a part of an attempt to educate students in a pro-"diversity" message. I've reprinted the relevant excerpt below, for those who are interested. I haven't thought about to what extent my argument is mooted by the FAIR case, so critiques on that basis may be justified.



Interesting University Student Freedom Case:

May a social work professor require that students sign a letter to the state legislature promoting equal treatment for homosexuals in foster parenting and adoption? That's what the Alliance Defense Fund alleged recently happened at Missouri State University; eventually, the requirement was canceled, apparently partly because of the student's objection — but the student's objection allegedly led to a disciplinary hearing in which she was questioned about her religious beliefs, and was told that her beliefs conflicted with the National Association of Social Workers Code of Ethics that the student had been required to sign as a condition of entering the school.

The student was then allegedly required to write a paper about "the difference between personal and professional beliefs and how she would 'lessen the gap' between these two beliefs. In the paper, she was also required to "state that she would not discriminate against men and women engaged in homosexual behavior, that she would be willing to place children in homosexual adoptive homes, and that she would abide by the NASW Code of Ethics and the School of Social Work's SEF." This was an obligation imposed on her but not on other students, apparently because of her protests against the requirement of signing the letter.

A Springfield News-Leader article reports that "The university's investigation determined that the allegations made in the lawsuit were 'pretty much accurate,' [MSU President Michael] Nietzel said." Here's what Missouri State University has to say:

Missouri State University today [Nov. 8, 2006] signed an out-of-court agreement with the Alliance Defense Fund, thus ending the lawsuit filed against the university by Emily Brooker....

According to the terms of the settlement, Missouri State agrees to the following:

* clear Brooker’s official record of the Social Work Level 3 review referenced in the complaint.
* pay Brooker an amount of $9,000 and she will be responsible for her own legal fees.
* waive academic fees at Missouri State University, or in lieu thereof, reimburse an amount equal to two years of degree work toward a Master of Social Work degree (or a graduate degree of equivalent length) at any public institution in the state, which is estimated at approximately $12,000, plus Brooker will receive $3,000 per year in living expense for two years of graduate education.

“We acted on these allegations as soon as we became aware of them the afternoon of Oct. 30,” said Missouri State President Michael T. Nietzel. “Although our investigation did not support all of the allegations made in the lawsuit, we were concerned about some of the actions that we did learn about.”

In addition to the terms of the lawsuit, Nietzel also announced that based on the university’s investigation, he believed it was important for the university to take a number of other steps that addressed broader issues. They include the following:

* Nietzel will commission a comprehensive, professionally directed evaluation of the Missouri State Social Work Program. He has asked Provost Belinda McCarthy to identify an outside group of social work education experts who will be charged with this review. “It is important for current and prospective students, for potential employers, and for the faculty and staff in the program to have confidence that the policies, procedures, leadership, and delivery of the program are up to par,” said Nietzel. “The reviewers will have the complete cooperation of the university as they conduct their assessment. We will begin to recruit this external team immediately with the hope that they can visit us and conduct the review in the spring 2007 semester.”

* Dr. Frank G. Kauffman, assistant professor of social work, has voluntarily stepped down from his administrative duties as director of the Master of Social Work Program. In addition, he has been re-assigned to non-classroom duties in the School of Social Work for the remainder of the fall semester. Finally, Kauffman has begun weekly consultations with Associate Provost Chris Craig, which will continue at least through the spring 2007 semester.

* Finally, Nietzel will appoint an ad hoc committee to recommend ways in which the university can better publicize and more effectively implement its policies regarding freedom of speech and expression on campus. “The Declaration of Community Principles and the Statement of Student Rights adopted by Missouri State a number of years ago are very good and powerful statement of rights and responsibilities,” said Nietzel. “And, we have strong and effective grievance policies in place. We need to make sure that all members of the campus community, especially new members, are familiar with the Principles and the policies. When we talk about making sure that a Missouri State education is rigorous, part of that is the recognition that the content, theories, and implications of any number of academic disciplines often engender vigorous debate and can sometimes conflict with personal beliefs. How these controversies and how the inevitable clashes of personal convictions and values are raised and addressed are crucial questions for a university. Ultimately, universities must be responsible for providing an environment that promotes learning and that permits individuals to exchange ideas in honest and civil ways. That is our goal.”

I'll have some things to say about this shortly, but I thought that I'd start by just posting the allegations and the university's reaction.

Related Posts (on one page):

  1. Student Freedom and Academic Honesty:
  2. Interesting University Student Freedom Case:

2006 Firearms Law and Second Amendment Symposium

Held at George Mason Law School on October 7, and now available on the web, for your viewing pleasure. The main page of the symposium offers links of hi-fi and lo-fi versions of all the presentations, in Windows Media and Quicktime. My presentation covered the international law basis of the human right to self-defense.

The organizers of the symposium worked earnestly to include a good mix of speakers from the gun control side, but, unfortunately, they refused to attend, even with all expenses paid. In contrast, Saul Cornell of Ohio State appeared at the 2005 symposium, and made a very good presentation.


[Carolyn Ramsey (guest-blogging), November 16, 2006 at 10:28am] Trackbacks
Why the Wild West Hanged Fewer Intimate Murderers:

My data supports the conclusion that late nineteenth- and early twentieth-century intimate homicide cases in New York and Colorado produced remarkably similar results: “In both states, men who killed intimates risked a murder conviction, while female defendants tended to be acquitted or found guilty of lesser crimes by juries sympathetic to their stories of physical or emotional abuse.” However, New York and Colorado did not take the same approach to punishing male prisoners who had been convicted of intimate murder. The cultural and legal reasons for this divergence are worth exploring. To share my thoughts on the subject, I’ve posted another excerpt from my article, “Intimate Homicide: Gender and Crime Control, 1880-1920,” 77 Univ. Colo. L. Rev. 101 (2006):

. . . New York and Colorado differed dramatically in social and cultural terms in the late nineteenth century, and those differences produced divergent sentencing patterns. Whereas New York sentenced a relatively large number of intimate killers to death as a percentage of its total executions, Colorado did not. Instead, men who killed their paramours, spouses, and relatives in this western state most often received life sentences.

[My] article suggests that the disparity in execution rates for intimate murder in the two states owed much to the slow westward spread of norms of civilized masculinity and distaste for capital punishment. At the end of the nineteenth century and the beginning of the twentieth, Colorado’s eagerness to shed its frontier image helped fuel revulsion toward male defendants who killed their wives, lovers, or other family members. Hence, Colorado juries did not hesitate to convict men of intimate murder. But ideals of male civility were newer and less deeply rooted in this western state than in the northeast. Moreover, by the time Colorado experienced a surge of opposition to the death penalty, New Yorkers once again embraced it with fervor. Thus, in contrast to their east-coast counterparts, Coloradoans proved reluctant to use state-sponsored execution — a form of punishment they increasingly questioned — to exact retribution and deterrence in intimate homicide cases.

Plagued by adult crime, juvenile gangs, and inadequate law enforcement, Denver was a rough and dirty city in the late nineteenth century . . . One might expect that, in this setting, the state would have ordered men convicted of killing their wives, girlfriends, or relatives to swing from the gallows. Yet [between 1880 and 1920] not a single Denver prisoner was legally hanged for intimate homicide, although the state executed eleven people convicted of crimes in the city. Indeed, in the entire state of Colorado, only about eleven percent of all legal executions (four of thirty-seven) involved defendants found guilty of intimate killings. All men, save one, who were convicted of first-degree murder in Denver for killing their lovers, wives, or relatives received life sentences, many of which were commuted to shorter prison terms.

By contrast, New York executed at least seventy-six intimate murderers between 1880 and 1920 — about twenty-five percent of its total executions. And capital punishment in New York County during the same period claimed ninety-one prisoners, more than one-third of whom had killed their paramours, spouses, or other family members . . .

What accounts for the disparity between the New York and Colorado execution rates in intimate murder cases? The most legalistic answer simply looks to the statutes: First-degree murder carried a mandatory death sentence in New York, whereas in Colorado, for most of the period encompassed by [my research], it did not. However, going beyond the statutory explanation, it is possible to identify significant cultural differences between the two states.

As a general matter, the west lagged behind the east in the reception of social and cultural change. The separate spheres ideology — which accorded women the duty of keeping house and inculcating the next generation with religious values, while their husbands sallied forth into the business sphere — remained impracticable on the frontier through the mid-nineteenth century. Pioneer women had to perform a wide range of tasks including physical labor, in order for the family to survive. Although participation in breadwinning may have given frontier wives greater strength, the lack of distinct sex roles was paired with the survival of patriarchal norms that tacitly encouraged men’s use of violence to obtain female submission.

. . . The lack of established structures in the west also gave patriarchy lingering power and legitimacy that it lacked in the northeast. While public law enforcement developed later in New York than is often assumed, western legal institutions were even more ad hoc . . . There was no penitentiary in the Colorado territory until 1871, and as late as 1878, Denver had only one police officer for every 4,166 citizens, compared to New York City’s ratio of one patrolman for every 400 citizens . . . In the absence of a sufficiently large and well-trained police force, the authority of the male household head over his family retained political as well as social importance.

Anti-capital punishment agitation also followed a different chronology in Colorado than it did in New York . . . Colorado death-penalty opponents increased in strength and numbers in the 1890s, after New Yorkers had largely abandoned their agitation.

. . . Coloradoans’ opposition to the death penalty in the late 1800s, combined with the relative youth of social values condemning extreme violence toward frontier women, may account for the fact that the public response to men who killed their intimates was not quite as harsh in Colorado as it was on the east cost. In the late nineteenth century, several eastern states [including New York, considered using] the whipping post to deter wife-beating. The campaign for the corporal punishment of wife-beaters embodied many aspects of the [tough, Wild West image that Theodore Roosevelt and other east-coasters sought to convey at the turn of the century as an antidote to Victorianism’s staid respectability]. It represented a new muscular form of masculinity in which men who failed to protect their women were [to be] beaten, not merely jailed or censured.

. . . Although the whipping post campaign had a few adherents in the western United States, the state of Colorado did not participate as a matter of official law or policy . . . Colorado’s reluctance to use either the whip or the gallows to control intimate violence may have stemmed from its insecure position as a patriarchal, frontier society that sought to earn a more polished reputation [by building theatres, museums, libraries, and churches; expressing disapproval of lynching; and hiding state-sponsored capital punishment behind the walls of the penitentiary]. Until 1870, the state struggled with a gender imbalance that left women outnumbered six to one in Denver . . . When more women started to arrive, Denver faced the delicate task of convincing them that they were coming to a religious, female-friendly community where it would be safe and comfortable to reside. With regard to intimate murders, which occurred despite the civilizing ethos urged by the church and the municipal government, legal authorities weighed two options: they could bow to anti-death penalty forces (thus risking the appearance of being soft on intimate murder), or they could hang the culprits (potentially turning the spotlight on the city’s gendered tensions and dangers). They chose the former . . .


Wednesday, November 15, 2006

Housing Market "Stickiness":

I've continued to follow the Northern Virginia real estate market, as my wife an I are moving back to the area in January after spending two semesters visiting at University of Michigan Law School, and one at Brooklyn Law School. At this point, we're hoping to rent a house or townhouse near the metro in the Ballston/Clarendon area (leads would be welcome!), but I've been watching the sale market as well. Some observations:

(1) Townhouses are coming down in price much faster than are single family houses. A few months ago I mentioned in a blog post about a townhouse community in Alexandria in which houses were selling for almost 600K in late Summer '05, and by Summer '06 were selling in the low 500s. Now, there are three houses for sale in that community between $480 and $490 (e.g., AX6226738, if you are interested) and they are just sitting there. These houses were bought at a previous market trough around 1992 for the low $200s, and the appreciation over fourteen years is starting to look much more reasonable.

(2) Owners of single-family houses seem especially reluctant to reduce their prices. Before we accepted the Brooklyn visit last Spring, we started looking for rentals. There was very little available. Now, there are many, many houses available, as sellers refuse to drop their prices to the going market rate and instead decide to rent them out. Many houses are renting for sums well below the carrying costs for a new owner (not taking appreciation or depreciation of value into account). For example, there is one house that is for sale on Old Dominion Road in Arlington for $750,000, but isfor rent for $2,800 a month. It strikes me that from a purely economic point of view it would pay the owners to drop their price by even $100K and sell the place, rather than get $2,800 a month in rent, but

(3) owners seem to have certain "red lines" that they won't cross as far as pricing goes. One red line is that owners are extremely reluctant to sell their houses for below the property tax assessment. The areas we are interested in do "full value" assessments. These are traditionally a bit below market value, especially in a rising market, and 2006 assessments are based primarily on prices from the Summer of 2005. The Summer of 2005 was the peak of the market, so even with conservative assessments houses many houses should be selling for somewhat below those assessments; and some of them are. But for the most part, if you follow "reduced price" listings, the reductions tend to stop when the price is selling just above the county assessed value. This happens so often that I can't believe it's a mere coincidence, but more likely reflects an emotional judgment by the sellers that they are not going to sell the house for less than it's "worth," as proven by the county assessment. Another red line is that sellers who bought in 2005 will, with rare exceptions, refuse to list the house for less than the price they paid plus about 6%, ensuring that they will more or less break even on the deal. Of course, this only works if the price will actually sell at that price, and it's a rare house in No. Va. (that hasn't been renovated in the meantime) that is worth 6% more than it was in '05. In sum, consistent with the economic literature, loss aversion is quite strong, even when the "loss" is solely on paper, as with long time owners who would rather rent for relative peanuts than sell their house for "only" 2+ times what it was worth six years ago.


Sex, Drugs, and the Patriot Act: Well, no drugs, actually, but this one does combine sex and the Patriot Act. [BUT SEE UPDATE, which exlains that it really is just about sex.] AFP is reporting, via Drudge:
A couple's ill-concealed sexual play aboard a Southwest Airlines flight from Los Angeles got them charged with violating the Patriot Act, intended for terrorist acts, and could land them in jail for 20 years.

According to their indictment, Carl Persing and Dawn Sewell were allegedly snuggling and kissing inappropriately, "making other passengers uncomfortable," when a flight attendant asked them to stop. . . .

On a second warning from the flight attendant, Persing snapped back threatening the flight attendant with "serious consequences" if he did not leave them alone.

The comment was enough to have the couple, both in their early 40s, arrested when the plane reached its destination in Raleigh, North Carolina, and charged with obstructing a flight attendant and with criminal association.
  This story doesn't seem to add up. The relevant provision of the Patriot Act is 18 U.S.C. 1993(a)(5), which punishes whoever:
interferes with, disables, or incapacitates any dispatcher, driver, captain, or person while they are employed in dispatching, operating, or maintaining a mass transportation vehicle or ferry, with intent to endanger the safety of any passenger or employee of the mass transportation provider, or with a reckless disregard for the safety of human life.
In addition, 18 U.S.C. 1993(a)(8) prohibits "threaten[ing]" to do an act in (a)(5).

  However, nothing in the story suggests that Persing actually threatened to interfere with, disable, or incapacitate the flight attendant while he was doing his job with intent to endanger his safety. It sounds like Persing was actually quite occupied with other things. And it's unclear what role Sewell had here, at least in a criminal sense.

  If any one has a copy of the indictment, send it on.

  UPDATE: The indictment is here. As Armen suggests, the AFP story is wrong: the charges aren't being brought under the Patriot Act but rather under 49 U.S.C.A. § 46504:
An individual on an aircraft in the special aircraft jurisdiction of the United States who, by assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties, or attempts or conspires to do such an act, shall be fined under title 18, imprisoned for not more than 20 years, or both.
The Patriot Act did amend this statute: Secton 811(i) of the Patriot Act added the phrase "or attempts or conspires to do such an act." However, the substantive offense that was charged dates back to the 1960s.

Tim Wu, Voice of a Generation: The very entertaining story is here, and the "I heart Wu" video on You Tube is here. This idea of law professors trying to reach a broader audience seems interesting; I wonder if it will work. Thanks to Howard for the link.

[Carolyn Ramsey (guest-blogging), November 15, 2006 at 10:11am] Trackbacks
No License to Kill for Men:

The provocation doctrine did not give men carte blanche to kill intimate partners who were unfaithful or who sought to leave the relationship. It did not even offer a successful means of mitigating a murder charge to manslaughter for many male defendants. Today’s post provides an excerpt from, “Intimate Homicide: Gender and Crime Control, 1880-1920,” 77 Univ. Colo. L. Rev. 101 (2006), that captures my argument about the comparatively stern treatment of men charged with murdering female intimates in the late 1800s and early 1900s.

Whereas women charged with murder were treated leniently, men risked not only receiving a guilty verdict, but also being sentenced to substantial prison terms or even executed. The common-law provocation doctrine mitigated the punishment of male defendants whose deadly behavior fell within its narrow parameters, but as both a doctrinal and a cultural matter, it offered a smaller safety net than is often assumed . . .

The condemnation of men’s homicidal attacks on their families or lovers [in the late nineteenth and early twentieth centuries] has no parallel in the current American death-penalty regime. Indeed, whereas the miniscule number of women executed between 1880 and 1920 fits into a broader historical pattern of leniency toward female criminals, the willingness of courts and juries in the late 1800s and early 1900s to convict men of first-degree murder for slaying intimates contrasts starkly with the small fraction of death-sentenced men who committed intimate homicides in the late twentieth century.

Moreover, the pattern of holding men accountable for intimate murder crossed geographical and cultural boundaries. It is evident in the eastern and the western United States from 1880 to 1920. Like their New York City counterparts, Denver prosecutors typically pressed severe charges against men who killed intimates during this time period. Out of my sample of forty-eight cases involving male defendants, the Denver District Attorney’s office charged forty-six men with some kind of murder . . . About sixty percent of [these] male murder defendants in my Denver sample were convicted and punished for committing murder in either the first or the second degree. Voluntary manslaughter verdicts constituted a comparatively rare outcome for men in the Denver cases, whereas first-degree murder convictions were the most common type of case disposition.

. . . Whereas other feminist scholars have criticized the heat-of-passion doctrine for treating intimate killings less severely than a fatal assault by a stranger, my research on the west and the northeast offers little reason to think that juries in those regions tilted the facts in favor of male defendants charged with killing women, or that courts construed provocation categories broadly to overturn men’s convictions. In contrast to some southern states that ‘expanded the notion of provocation to cover a broad range of sexual effrontery’ [quoting Martha Umphrey], Colorado and New York policed male violence by refusing to depart from common-law categories.

. . . Trial judges in Colorado and New York often refused to instruct on provocation because the evidence showed cooling time or other factors precluding the defense as a matter of law. Appellate courts usually affirmed murder convictions in such cases, commenting on the poor fit between the facts and the elements of voluntary manslaughter.

Whereas reformist jurisdictions in the late twentieth century jettisoned provocation categories and cooling-time limitations, courts and juries in the 1800s and early 1900s were willing to execute male defendants who claimed that simmering jealousy, anger, or fear led them to commit homicide. This severity was not gender neutral. Rather, verdicts exonerating women due to their victims’ past violence or romantic inconstancy contrasted with the lack of empathy for similar stories when a man was on trial. Moreover, in distinction to capital sentencing in the post-Furman era, the pain arising from romantic or family strife was generally not considered a mitigating factor that precluded the death penalty in men’s cases.

Unlike modern jurisdictions, including New York, that use the EED [extreme emotional disturbance] doctrine, judges in the late nineteenth and early twentieth centuries refused to recognize an attempt by a wife or girlfriend to leave a man as legally adequate provocation. For example, in People v. Youngs [45 N.E. 460 (N.Y. 1896)], the murder victim separated from her husband and threatened to seek a divorce when she learned that he had given her ‘a private disease.’ He then went to a neighboring house where she and the children were staying and fatally shot her. Affirming the capital conviction, the New York Court of Appeals noted in dicta that the facts showed ‘the absence of all . . . provocation . . . for the commission of the crime.’

. . . Legal doctrine and gender norms [also] negated ‘simmering emotions’ defenses raised by men in a variety of factual scenarios, including infidelity. Mere suspicion of adultery — especially suspicion that grew over a long period of time — was rarely recognized as an adequate basis for a heat-of-passion argument when a man killed his spouse. Thus, in both New York and Colorado, male defendants enraged by suspected infidelity often raised insanity, alibi, or accidental death defenses. Those who did request provocation instructions were frequently thwarted by adverse rulings from the bench.

For example, the Colorado Supreme Court affirmed a refusal to instruct on provocation where the defendant had ‘suspicion, or even knowledge of prior acts of adultery,’ but had not witnessed his estranged wife having sex with another man [quoting Garcia v. People, 171 P. 754, 755 (Colo. 1918)]. New York courts proved almost as rigorous. The case law suggests that a homicide following immediately upon an oral report of infidelity might receive mitigation in New York, but that any lapse of time prevented the defendant from raising a heat-of-passion defense.

As I demonstrate in my University of Colorado Law Review article, "Men who stalked their victims often sought to claim temporary insanity [or alcoholic insanity] to make an end run around the cooling-time doctrine. Yet unlike [women], male defendants could not successfully equate rage with temporary insanity.” Nor were they exculpated when defense attorneys “put on expert witnesses to describe a condition known as delirium tremens, in which the suffer manifests trembling and delusions due to prolonged alcohol abuse."

In addition to presenting empirical data on case outcomes, my article links the harsh attitude of jurors and other legal actors toward men who perpetrated intimate murders with a wide array of cultural forms, including judicial opinions, family conduct manuals, and the public image-creation of political leaders like Theodore Roosevelt. All of these influences associated manliness with protection of the female sex:

In the mid-nineteenth century, influential social values, especially among the middle class, associated manliness with sobriety, industry, and control over the passions. These ideals of male self-restraint came under attack toward the end of the nineteenth century, when American men increasingly were urged to embrace their animal instincts in sports, sex, and battle. Nevertheless, at least up to 1920, the model white man remained protective of women and displayed reverence for their presumptively greater moral purity. He used his aggressive impulses to conquer beasts, other races, and even white male rivals, but he did not use violence against females.

Men who transgressed these prescriptive ideals did not make sympathetic victims when their violent behavior provoked women into lethal responses, nor did they make sympathetic defendants, when their efforts to exert power and control resulted in the violent death of their female intimates.


Tuesday, November 14, 2006

Medical Self-Defense and the Risk that Compensation for Organs Will Drive Away Volunteers:

One of the commenters asks:

Finally, any guess as to how many of those healthy organs donated benevolently will not be available when the pricing game starts? Believe it or not, everyone and their descendents is NOT motivated by money. Look at how many community women stopped volunteering -- the work that truly built American character before the market-inclined came into the game -- once there was some expectation people could be paid for such services. Sure you'll pick up some donors in it for the money; how many of the "volunteers" -- in it for the end result, not the pay -- will you lose?

I had a section in an earlier draft addressing this argument, but I had to cut it for space reasons (though I included a little bit of it in other places). Here's what I said:

Some have also hypothesized a somewhat different altruism effect: that offering money for organs might alienate donors who would give the organs for free, and might therefore decrease (or not substantially increase) the aggregate donor supply. One can imagine some such mechanisms: If some people believe (whether rightly or wrongly) that an organ market is immoral or disgusting, they may refuse to participate. If some people start thinking of the transaction in financial terms, they may conclude that $30,000 is too low a price for parts of their bodies, even if they would have donated the body parts for free.

Likewise, some people might be turned off from the loss of the emotional benefit that accompanies a pure selfless act. Or some people might donate organs under the current system because they seek the emotional reward that comes from doing something that can only be done by the charitably minded. Once organ provision becomes the sort of thing that is routinely done for money, they might no longer be interested in doing it.

Yet while one can imagine such reactions, my sense is that they’d be quite rare. To begin with, only about 1.5% of all U.S. living donor transplants -- in 2005, 89 transplants in total -- are purely unrelated anonymous donations. Even if all these unrelated anonymous donors become alienated by the prospect that others are being compensated for providing organs, and aren’t mollified by the prospect of refusing compensation or donating the compensation to their favorite charity, this will be a very small loss to the organ pool. The remaining 98.5% are either donations to relatives, targeted donations (presumably mostly to acquaintances), or “paired exchange” donations in which the recipient’s relative or acquaintance provides an organ in exchange to the donor’s relative or acquaintance. These donors, I suspect, will care primarily about the welfare of the transplant beneficiary, and won’t refuse to donate just because compensation is offered. The cadaveric organs do often go to strangers. But how likely is it that a next-of-kin who would be willing to donate the decedent’s organs under a pure donation system would instead refuse when offered money (even given the option of declining the money, or sending it to his favorite charity)?

On the other hand, the opposite reaction -- a financial incentive doing what financial incentives usually do, which is stimulated the rewarded conduct -- should, I suspect, sway quite a few people. We see some evidence of this in the supply of eggs to infertile couples: In America, where women routinely get $5000 to $15,000 for such eggs, the eggs are generally available; in England, where the compensation is capped at £250, there is a years-long waiting list; in Australia, where payment for eggs is banned, there is a five-year-long list. We also see plenty of evidence of this in our daily experience with the overwhelming majority of other goods and services, where offering money will get you much better results than asking for charity.

Moreover, the offer of money may easily be presented in ways that harness charitable people’s charitable attitudes. Providing your (or your recently deceased relative’s) kidney for money, after all, saves a person’s life just as much as donating the kidney would; and then, if you have strong charitable impulses, you can just take that money and give it to your church, or your favorite charity.

The recipient is no worse off because you took the money. (Under an organ market system, the cost of the organ would surely be paid by private or government insurance, just as the much greater cost of the other inputs into the transplant -- doctor time, hospital space, pharmaceuticals and surgical supplies -- is now paid.) And if you are charitably minded, you can just take the money and give it to your church, or your favorite charity, or if you prefer some fund that will support organ transplants for the poor. You get to feel good about two things, the saving of a life and the donation of the proceeds, rather than just one.

What’s more, many genuinely altruistic people understandably feel that their charity should begin at home. A father’s death in an accident, which makes the organ donation possible, might at the same time strip away his wife’s and children’s main source of financial support. Getting money for the organs and using it for the children’s benefit will likely seem far more appealing -- even if the mother is generally charitably inclined -- than just giving the organs away.

This leaves one sort of person who might still be turned off, despite the option of declining payment or routing the payment to his favorite cause: someone who is deeply attached to the concept of doing the sort of thing that cannot be done for compensation. Note that this person isn’t the hyper-altruist who just wants to provide an organ to save a stranger’s life; he can still do that if he gets paid. Nor is it the hyper-altruist who just wants to give the organ free; he can still do that by forgoing compensation. Rather, it’s someone who won’t want to save the stranger’s life if such lifesaving is also done by others for compensation.

Yet how common are such people likely to be, compared to those who will see an offer of payment as an incentive? Consider a thought experiment: Imagine a requirement that doctors who do organ transplants do them for free, or not at all. Do we expect that such a requirement would on balance increase the number of doctors willing to perform such operations, since some doctors will be thrilled to do something that can only be done by the charitably minded? Would we say, “Sure, some doctors won’t want to invest their time and effort with no compensation, but think of how many more doctors would want to perform such a public service”? Or would we expect that counting on a combination of incentives and conventional altruism (in which some doctors may contribute their time and effort while forgoing compensation ) is a much surer bet than counting on pure altruism alone?


Ninth Circuit Opinion Upholding $100,000+ Fourth Amendment Damages Award Against Police Officers,

in an opinion by Judge Kozinski. As a former Kozinski clerk, I'm doubtless biased, but one thing I've long admired about many of the Judge's opinions is how they combine clear writing with effective use of the facts. This is an excellent example, one that students of legal rhetoric (whether they are law students, lawyers, or law professors) should find much worth reading. Fourth Amendment cases are often very fact-heavy, and the trick is to marshal the facts in a way that's honest, clear, and persuasive. Judge Kozinski does a first-rate job of this here.

Thanks to How Appealing for the pointer.

Related Posts (on one page):

  1. More on Ninth Circuit Decision Upholding $100,000+ Fourth Amendment Damages Award Against Police Officers:
  2. Ninth Circuit Opinion Upholding $100,000+ Fourth Amendment Damages Award Against Police Officers,

Permit Needed to Have One-Man Protest on Sidewalk?

The AP reports:

Edwin Crayton was chased away by a Natchitoches police officer from the front of [a] Wal-Mart store in early October when he tried to protest what he believes is the company's stand on gays, according to the ACLU, which filed a lawsuit on his behalf.

The ACLU said the police officer told Crayton that he needed a permit to protest ....

When Crayton protested he held a sign that read, "Christians: Wal-Mart Supports Gay Lifestyles And Marriage. Don't Shop There." ...

After the ACLU sued, the parties agreed to suspend the ordinances as to the plaintiff until a final hearing on the permanent injunction, and the court implemented that through a court order.

The ordinances involved require permits (for which $10 is charged) for "[a]ll public gatherings" and all "open air public meeting[s]"; while such ordinances would be constitutional when the meeting or gathering is large enough, I doubt that they'd be constitutional for small demonstrations, especially given that sometimes such demonstrations quickly react to recent events. I've read several circuit cases that have in fact held that such ordinances are impermissible unless they exempt small groups (though the required cutoff is not entirely settled). And it's hard to see why such an ordinance would be constitutional as to solo demonstrators, even if it on its face purports to apply to such demonstrators (something that's not clear, since one person holding a sign is literally hard to call a "gathering[]" or a "meeting").

Thanks to Allen Asch, author of the ACLU Fights for Christians Web page; and thanks to the ACLU of Louisiana for taking the case.


Internet Addiction

is back in the news, and Ann Althouse comments (with a "bonus gripe" thrown in for good measure). This reminds me of my earlier warning about something even worse than Internet addiction:

"Internet Addiction," experts say, is just the tip of the iceberg.

Recent research shows that Internet Addiction is just a special case of what might more broadly be called Communication Addiction. Most healthy individuals tend to spend their time doing normal, productive things like eating, sleeping, working, caring for their children, and having sex. But recently, some have started to devote an inordinate amount of time to the clearly far less valuable and more dangerous activity of Communication (and a related behavior, Information Gathering).

Not only does this distract them from other activities, but extended bouts of Communication are often accompanied by other unhealthful behavior, such as consumption of intoxicants and sometimes excessive quantities of food. Addicts have often been known to express regret over the time this disease takes away from much more vital activities (such as sleep), and over behavior -- such as possibly unsafe sexual activity -- that Communication has indirectly facilitated.

Communication Addicts generally find it acutely emotionally painful to quit. Sometimes after only a few days away from their addiction, sufferers begin to feel symptoms that are quite similar to clinical depression. The refusal of others to continue communicating with them has been known to lead to lowered self-esteem, psychological injury, and in extreme cases even suicide.

Their recent development of the new and questionable technology known as "language" puts certain individuals, known as "humans" -- already vulnerable because of their abnormal gregariousness -- into especially grave peril from Communication Addiction. Experts believe that their troubled lifestyle may lead this particular group to become threats to themselves, to others, and to the environment.

For more information about Internet addiction, see Net Addiction or take this test. Then, for a comparison, take the same test with the term "Internet" replaced by "reading" or "communication," e.g., Q 1, "How often do you find that you [read / talk with friends] longer than you intended?"


Medical Self-Defense, Compensation for Organ Transplants, and the Commodification Objection:

Here's my attempt to deal with the "commodification" objection to compensation for organ transplants. I'd love to beef it up, in future versions of the article (if there are some) even if I lack the space in this version. Any suggestions?

What then about the argument that compensation is just inherently wrong? “The human body and its parts cannot be the subject of commercial transactions,” the argument goes. Like “a desired legal verdict, a Pulitzer Prize, or a child,” organs are goods that “have a meaning and value that places them outside the market.” In the words of leading conservative bioethicist Leon Kass (for three years the chair of the President’s Council on Bioethics), “the human body especially belongs in that category of things that defy or resist commensuration -- like love or friendship or life itself”:

[C]ommodification by conventional commensuration [through market exchange] always risks the homogenization of worth, and even the homogenization of things .... In many transactions, we do not mind or suffer or even notice. Yet the human soul finally rebels against the principle, whenever it strikes closest to home....

We surpass all defensible limits of such conventional commodification when we contemplate making the convention-maker -- the human being -- just another one of the commensurables. Selling our bodies, we come perilously close to selling out our souls. There is even a danger in contemplating such a prospect -- for if we come to think about ourselves like pork bellies, pork bellies we will become.

Yet, once we look past the figures of speech to see what is really being asserted, this analysis is unpersuasive. Love, friendship, and prizes can’t properly be gotten for money because paid-for love, friendship, and prizes aren’t “love,” “friendship,” and “prizes” as we define the terms. A paid-for kidney is a kidney, just as a paid-for transplant operation is a transplant operation. It has the same meaning and human worth regardless of whether it’s paid for -- it can save a human life.

Nor is compensation for providing kidneys morally similar to selling “the human being.” There’s no despotic control over another human, as with slavery. There’s no risk of a harm to a human who’s too young to consent, as with sales of children. When an organ is taken from a cadaver, there’s no soul to be sold out. And when an organ is provided by a living person, the organ is being provided, not the soul; there’s no selling out of the soul in compensation for the organs, just as there’s no giving away the soul in donating organs. We are no more pork bellies when organs are transplanted (whether for money or otherwise) than the paid transplant surgeon is a butcher.

Of course, such responses themselves have limited persuasiveness to those firmly on the other side. The anticommodification claim may be at bottom a philosophical and spiritual axiom -- a premise for an argument rather than a conclusion. Leon Kass’s soul rebels against payment for transplants. My soul rebels against price controls that limit the supply of transplantable organs and thus lead people to die needlessly. When the test is soul rebellion, argument only goes so far.

Yet the presence of a constitutional and moral right ought to resolve this impasse. Something more demonstrably compelling than Professor Kass’s conclusory assertions must be required to substantially burden such a right. Before limiting people’s abortion-as-self-defense rights or lethal self-defense rights, we would demand more than just philosophical claims supporting a culture of life so unwavering that it never lets people use deadly force against viable fetuses or born humans. Likewise, before limiting medical self-defense rights, we should need more than Professor Kass’s view of the soul.


Illegal Fellowship at Kirkland and Ellis?:

Kirkland and Ellis awards a "diversity" fellowship at many of the nation's leading law schools (see this announcement for the one at Yale). The fellowship seems to consist of a Summer associate position at K & E, plus a $15,000 stipend during one's third year of law school. Only non-whites are eligible.

If K & E wishes to use its resources for this program, it's okay with me. It doesn't do anything to increase the overall pool of minority attorneys from disadvantaged groups, which would be a more philanthropic endeavor, but given the pressures clients are putting on law firms to staff projects with minority attorneys, it seems smart from K & E's perspective to run a program like this to attract help attract the cream of the crop.

But I have to wonder whether this program was run past K & E's employment lawyers. I'm not a Title VII expert, but I'm pretty sure that any sort of quota for minorities in employment is illegal, absent very special circumstances. And K & E's "minority fellowhsip" program amounts to a 100% quota for minorities for the relevant positions. Put another way, while race may be used as a factor under precedents from the 1980s, I don't think that any position can be reserved by race. Clients may demand minority attorneys, but race cannot be a bone fide occupational qualification under current law, as I understand it. Am I missing something? I'll happily update the post to cite the precedent that makes this program lawful, if it exists. [UPDATE: The comments contain a lengthy and interesting discussion of the relevant legal issues. The case most helpful to K & E would be U.S. Steelworkers v. Weber, a case decided in 1979 by a much more liberal Court. But current precedential value aside, I think that Weber is readily distinguishable on several grounds, for example, that K & E's program was undertaken in pursuit of "diversity," not to redress a gross imbalance versus the relevant labor pool (unless you believe that K & E has determined that, e.g., "Native Alaskans" and "Pacific Islanders" are underrepresented at its various offices), that the program in Weber was meant to redress specific discrimination against specifically African Americans in union apprenticeship programs, and that the K & E slots are entirely reserved for "minorities." That's not to say that Weber explicitly bans this program, just that it's not controlling, and that some of the rationales for upholding the program in Weber not only don't exist here, but would suggest that this program, with its 100% quota, diversity rationale, and lack of narrow tailoring, is illegal. But if there's a more directly relevant precedent on point, please let me know.]

Hat tip: Law firm diversity blog, from which I learn that Thompson Hine has a very similar, though much smaller scale, program.

UPDATE: For a more traditional form of discrimination, see this advertisement (same hat tip) for a billing coordinator at Baker & Mckenzie's Bangkok office; only women between ages 25 and 32 need apply.


[Carolyn Ramsey (guest-blogging), November 14, 2006 at 10:41am] Trackbacks
Jury Sympathy for Abused Women Who Killed:

This post continues the description of my intimate homicide research, which I recently published in “Intimate Homicide: Gender and Crime Control, 1880-1920,” 77 Univ. Colo. L. Rev. 101 (2006) and “Public Responses to Intimate Violence: A Glance at the Past,” 121 Public Health Reports 460 (2006). Today, I’ll focus on the comparatively lenient treatment that the criminal justice system, and particularly juries, accorded women charged with killing their intimates in the late nineteenth and early twentieth centuries. As I explain in my University of Colorado article, my work “goes beyond a simple explanation of the salient disparities in terms of chivalry or paternalism toward female offenders. Instead, it contends that verdicts in intimate murder cases in the late 1800s and early 1900s not only policed ideals of civilized masculinity [by condemning the male decedent’s brutality toward women], but often tacitly recognized a factor similar to the one emphasized by domestic violence researchers today — past abuse that might lead a woman to kill her loved ones.”

Throughout history, men have committed homicide more often than women have. But women sometimes killed their intimates, and when they did, two outcomes were prevalent: acquittal or conviction for a less serious offense than murder. For example, only one woman in fifteen was convicted of the capital charge of first-degree murder during a fourteen-year period in late nineteenth-century New York City. Eight of the fifteen were acquitted; four pled guilty or were convicted of the lesser offense of manslaughter; one was found guilty of second-degree murder, which did not carry the death penalty; and one died in prison before trial.

My Colorado sources yielded similar data. For instance, in Denver between 1880 and 1920, fourteen out of twenty-seven intimate homicide cases involving female defendants resulted in acquittals; six women were convicted of manslaughter; two cases were nol prossed; and another three resulted either in court-ordered dismissals, the refusal of the grand jury to indict, or the discretionary decision of the prosecutor not to press charges. Only one woman was convicted of second-degree murder, and one was convicted of the first-degree crime. No female defendants were executed in Colorado during the entire forty year period.

As I explain in my public health essay, which provides a succinct summary of the more colorful and detailed Colorado piece:

Juries seem to have based acquittals either on the insanity defense or on a self-defense theory that looked to past abuse, rather than simply focusing on the specific incident during which the homicide occurred. [Thus, in many cases, the assessment of a female defendant’s guilt or innocence depended on an expanded context or time frame around the killing that helped to reveal the causes of her homicidal fear or rage.]

Self-defense theories often succeeded when the homicide victim was an adult man. In New York in 1891, for example, Ella Nelson was exculpated for killing her philandering lover when he threatened her with a pistol. A jury in the same city exonerated Maria Barbieri at her second trial after an appellate court ruled that evidence of her seduction, rape, and abandonment by the deceased were relevant to understanding why she slashed his throat in a saloon. More than a thousand miles away, a Colorado jury acquitted a domestic servant who fatally shot her abusive employer — a man with whom she also had a sexual relationship.

By contrast, the ideal of the nurturing mother made insanity claims the only route to acquittal for women who intentionally killed their children. For instance, in 1890, Wilhelmine Lebkuchner was found not guilty by reason of insanity after she killed her small sons by putting rat poison in their tea. Lebkuchner resumed work as a laundress following her acquittal, rather than being institutionalized.

The degree of moral denunciation directed at the men who allegedly drove these female defendants to kill constitutes the most remarkable aspect of the cases. Even child-murderers often contended that they had been rendered insane by maltreatment at the hands of a husband or male relative. For instance, Lebkuchner alleged that her brother-in-law disowned her after her husband’s death, leaving her destitute and terrified that she would lose custody of her children. At least until 1920, when females gained a constitutional right to vote, the ideal man ‘remained protective of women and displayed reverence for their presumptively greater moral purity.’ A man who beat, raped, or abandoned a woman failed in his duty to protect the so-called weaker sex; his actions thus justified or at least excused the woman’s homicidal response.

Female defendants who defied gender norms by drinking or engaging in illicit sex could expect harsher verdicts than those who played more traditional roles. However, when juries found such deviant women guilty of any criminal homicide, they typically convicted them of milder, non-capital offenses. Female defendants’ testimony about being brutally abused by their alleged victims counterbalanced their violation of Victorian prescriptions for proper feminine behavior. Juries thus spared them from long prison sentences or the death penalty.

The revised narrative presented here suggests the need to rethink some standard assumptions underpinning feminist approaches to the criminal law. However, I do not mean to paint an overly glowing picture of women’s treatment in the past, nor do I seek to minimize the problem of domestic violence or the shortcomings of the state’s response to it. In my University of Colorado Law Review article, I strive to present a nuanced view of a society that treated male defendants rigorously, but often gave abused women more credit for their stories of suffering than juries, police, and other agents of the state have done in more recent times. Yet, I also recognize that such leniency toward women came at a cost, for it was paired with a paternalistic view of their entire sex. As I conclude in the Colorado piece:

The recognition of long time frames leading to homicide had the positive potential to justify a woman’s choice of violence as a last resort in a relationship that put her life at risk. Nevertheless, the strategy still embodied a subordinating attitude toward women. Exculpating traumas included not only physical blows and death threats, which legitimately might lead to a defensive killing, but also broken engagements and other emotional harms that, in my view, responsible adults must learn to bear. The urge to protect female honor from the dalliances of rakish men may have harmonized with the claims of a husband who killed his adulterous wife; both recognized nineteenth-century concerns with reputation, property, and sexual exclusivity. Yet, the acquittal of women whose anger at romantic rejection reached the boiling point or whose past suffering or even alcoholism allegedly resulted in insanity often went beyond the bounds of traditional exculpating or mitigating doctrines, as they were applied to men.

Tomorrow, I’ll continue my discussion by turning to male defendants’ cases. I welcome questions and comments.


Monday, November 13, 2006

Rumsfeld Remembered:

One Perspective on Iraq:

Tom Smith of the Right Coast

I thought we had to go into Iraq because of WMDs and I still think so. I thought that's what we learned from all those dangerous documents the Pentagon put up on the web that the NY Times was complaining about. I just thought the idea of hanging around and building Athens on the Tigris was a lot of nonsense, inspired by people whose training included too much political theory and not enough political science. Just because you've read the Symposium in Greek doesn't mean you know how to cater a big party. So yes, we should not have de-Baathified so much, should have kept more of the Iraqi army, should have sent in more troops, planned to get out earlier all along, and probably let the Iraqis split up, but just left with a little promise to the Sunni and Shiite stans that we would be watching them, and would be back at the first sign of uranium enrichment or thousands of mysteriously dead goats. I put a lot of this down to an unwillingness to act like the hegemon we are. If some benighted dictatorship in the armpit of the world is working on a nasty surprize for us, we shouldn't have to promise that life will be wonderful for them after we finish blowing up their army and bioweapons seminar rooms. What's wrong with, it sucks to be the enemy of America? Nobody expects the French to make Africa better; we could learn something from them, as much as I hate to admit it. I personally thought the whole nation building idea sounded stupid, suspected it would fail, and still thought we should have invaded, and I'm glad we did. We are safer for it, not counting whatever stupidity we plan for the future. If failure to acheive the impossible in Iraq turns into a reason for propping up those whirling dervishes in Iran, that will really be the worst combination of farce, tragedy and disaster.

I've learned at least two things from the Iraq War: (1) Even I, who rarely underestimate the incompetence of the government, can underestimate the incompetence of the government; and (2) the U.S. is not cut out to be an imperial power, neither the public nor the elites have any stomach for the inevitable dirty work that goes along with exercising such power.


How Hate Speech Rules Backfired

on Canadian Jews:

Benjamin Netanyahu and Daniel Pipes cannot equally freely, or fearlessly, speak at any progressive, multicultural, Canadian campus. No pro-Zionist can. But just about every self-serving anti-Zionist demagogue and Israel-demonizing progressive ideologue can. Hate is whatever those with the power to disrupt, destroy, and silence, say it is. And so, only the Jewish voice is a campus security concern. Hate censorship has been hijacked. A shelter against illegitimate promotion of hate has been turned into a sword against legitimate exercise of Jewish voice.

How could it be otherwise? Censorship is force not talk. It is not about demonstration of right, but an exercise in might. Might is a double edged sword. In the end, the sharper edge, as is the nature of might, belongs to the more belligerent, or the more popular, not the more tolerant or the more civil. The popular have sympathy. The belligerent have force. The tolerant, and civil, have only words. By legitimating hate censorship, Jews have robbed themselves of rights to their own words and armed those of their intolerant adversaries.


Cool Maps

showing various characteristics of different parts of the U.S.


Compensation for Organs and Organ Quality:

Some readers raised this issue, which I had relegated to a footnote in my article, but which I thought I'd post in response:

Some have argued that allowing organ sales wouldn’t substantially improve transplant patients’ prospects, because it would decrease the quality of organs available for transplant by attracting providers -- such as intravenous drug users -- who are both especially in need of money and especially likely to have certain diseases. Yet this concern can be easily dealt with without a sales ban. Diseases can generally be screened for, which wasn’t true decades ago, when a similar concern drove blood banks to avoid paid providers. And they would in any case have to be screened for, since even charitable donors’ organs may be diseased.

Blood banks, including German blood banks that routinely buy blood, operate well with screening. Sperm banks and fertility clinics buy and test sperm and ova; the same approach should work for organs, too. And if compensation generates more organs, doctors can improve average organ quality by being more selective about the organs they use, and by setting aside organs that are not diseased but also not optimal for transplanting.

Note also one item I didn't mention in the footnote: Recall that people who are waiting for kindey transplants have a 6% death rate per year, or over 20% over the duration of the current waiting list. That's a lot of people dying for lack of organs. If compensation yields more organs, and cuts even a year off the waiting list, and at the same time (say) 0.1% of all extra organs are infected in ways that can't be caught by screening (likely a substantial overestimate), that's still a huge saving of life over the current system.

Tomorrow: A brief response to Leon Kass and other people who claim that paying for organs is just plain wrong.


Are the Red Sox Evil Empire Jr.?

Sports Illustrated columnist John Donovan claims that the Red Sox are becoming like the Yankees, trying to spend their way into championships. If Donovan attends any games at Fenway Park next season, he may want to go incognito:).

More seriously, there is a small kernel of truth to Donovan's claims. Over the last 3 years, the Red Sox have become the second-highest payroll team in baseball. However, they are still not in the same class as the Yankees when it comes to shelling out the dough. This year, the Yankees' payroll was a whopping $194 million, some 62% greater than the Red Sox no. 2 ranked payroll ($120 million). Perhaps even more telling, the $74 spending million gap between the Yankees and Red Sox was almost exactly the same as that between the Red Sox payroll and that of the perennial small market doormat Kansas City Royals ($47 million), one of the five poorest teams in major league baseball. Thus, the Yankees' payroll edge over their closest competitors is comparable to that of the Red Sox over the worst-off teams in the majors.

That is not to say that the Yankees succeed through spending alone. Obviously, they could not win without making at least somewhat reasonable decisions about how to spend their money. Still, the Yankees' having $3 to spend for every $2 available to the Red Sox is a very large advantage for the Sox and other teams to overcome. The Oakland A's moneyball methods (partly adopted the Red Sox since 2003) help, but they cannot completely eliminate the advantages the Yankees derive from their wealth, especially if the Yankees also begin to exploit the new methods. Given equal quality front office decisionmaking, the team with the most money is likely to win. That is one reason why every major league sport other than baseball enforces a salary cap.

UPDATE: Some commentesrs claim that baseball's "luxury tax" for high-spending franchises has the same effect as a salary cap; the luxury tax money is redistributed to small market teams. I don't think this is quite correct. Last year (the latest date for which we have statistics), the Yankees paid $34 million in luxury tax and the Red Sox $4 million, the only teams to do so. $38 million divided up among 8 or 10 different small market teams is not enough money to make a major difference. Moreover, the luxury tax (at its current level) seems not to have deterred the Yankees from having a payroll vastly disproportionate to even the second-highest team - to say nothing of the league average. There is also no evidence to show that the luxury tax has deterred high spending by other large market teams.


VC Open Thread: We haven't had one of these in a while. What's on your mind?

UND Wins Injunction Versus NCAA on "Fighting Sioux" Nickname:

The University of North Dakota won an injunction today against the NCAA for its efforts to enforce its new rule banning American Indian-related nicknames. The Court's Memorandum and Order is available here. UND states three claims in the complaint: breach of contract, breach of the covenant of good faith and fair dealing with respect to performance of the contract, and violation of state antitrust laws. The district court held that UND showed a sufficient likelihood of prevailing on the two contract claims so as the enjoin the rule. The contract claims are grounded in the recognition of the NCAA as private contractually-based organization. The Court's ruling is predicated on the finding that there is reason to belive that the NCAA failed to follow its own internal rules in promulgating the Indian-themed nickname rule. The ruling enables UND to host a Division II playoff game this coming weekend.

All of the filings in the case are collected here.

The NCAA has announced that it wil not appeal the injunction. The AP story quotes an NCAA spokesman as saying (somewhat peculiarly), "We're disappointed.... But it's not totally unexpected." I'm not sure what "not totally unexpected" is supposed to mean--I assume he's not saying that the NCAA knows it has a weak case. Nor does it seem obvious that it just means that the Court fudged the legal standard in order to avoid having the home game taken away from UND because the Court specifically refused to grant the injunction on the basis of the antitrust claim. Is the NCAA suggesting that this is a "home cooking" decision of some sort?

UND is being represented by the state's AG office but is being funded by private donations.

Trial on the merits is scheduled for April.

Related Posts (on one page):

  1. UND Wins Injunction Versus NCAA on "Fighting Sioux" Nickname:
  2. Crosses and Feathers at William & Mary:

How Can You Tell if A Justice Is "Liberal" or "Conservative"?: In the comment thread in my post on today's new Supreme Court decision, an interesting discussion emerged on how you can tell if a Justice is "left of center" or "right of center," "liberal" or "conservative." Are these labels useful or misleading? What's the frame of reference — the Court, the American electorate, or something else? And how can you read views about the law as views about left-right politics?

  These are interesting questions, I think, so let me offer some thoughts. In my view, these labels are a moderately useful shorthand when focused on Supreme Court Justices. The United States Supreme Court picks the cases it wants to hear; every year it picks around 80 cases and issues opinions in that set of 80 cases. As a result, we can look at the political valence of a particular Justice's votes and written opinions in those 80 cases and compare them to the status quo before the Court granted cert.

  My sense is that we tend to apply terms like "liberal" and "conservative" to individual Justices by looking at those cases and asking if Justice X's votes consistently try to pull the law to the left or the right compared to a world in which the Court took no cases. If a Justice consistently votes to pull the law to the right, we label that Justice a conservative; if a Justice consistently votes to pull the law to the left, we label that Justice a liberal; and if a Justice's votes reveal no consistent patterns, we label that Justice a moderate.

  What this means, I think, is that calling someone a "conservative Justice" does not mean that the Justice is conservative politically or votes for Republicans. Conversely, calling a Justice a "liberal" does not mean that the Justice is liberal politically or votes for Democrats. In the case of Supreme Court Justices, the label is just a shorthand signaling that the Justice's votes tend to have the effect of pushing the law in a direction that favors the policy preferences on one side or the other. Thus, we might find a Justice shifting from being a liberal to a conservative even if the Justice's views don't change. A good example is Justice Frankfurter, who was considered a liberal in the 1930s but a conservative in the 1950s in part because the political valence of judicial restraint had shifted.

  Finally, I think these labels are somewhat relative to the Court itself. For example, consider a Justice who never departs from precedent under any circumstances, and always tries to match new cases as faithfully as possible to the old. If a majority of the Court consistently wants to depart from precedent in a way with a particular political valence, the stare-decisis Justice will be labeled in part in opposition to how the other Justices are labeled. If the Justices who want to depart from precedent tend to embrace views consistent with political movement X, then the stare decisis Justice will be labeled not-X. This in part explains Frankfurter's "shift"; he didn't consistently follow the Justices who wanted to shift the law in a way that had a liberal political valence, so he was labeled a conservative at the end of his years on the Court.

Federalist Society Lawyer's Division Conference:

It's happening later this week in Washington, D.C., and the lineup is excellent, as always. See here for the details, including registration information. Justice Alito is giving the keynote address (though that may be sold out), with an introduction from Justice Scalia; Dick Cheney is giving the Barbara Olson Memorial Lecture. Other participants include Secretary Chertoff, Solicitor General Paul Clement, Judge Frank Easterbrook, Prof. Richard Epstein, Prof. Charles Fried, and many more -- plus many contributions from people who are on the opposite side from most Federalists on many issues, including (among others) former Clinton Administration Acting Solicitor General Walter Dellinger, Yale law professor William Eskridge, Elliot Mincberg from People for the American Way, Jennifer Daskal from Human Rights Watch, and more. I highly recommend it.


Supreme Court Opens Term With Reinhardt Reversal: In July 2005, Judge Reinhardt wrote an 2-1 opinion joined by Judge Paez in Belmontes v. Brown ruling that California's "catchall" instruction to juries in death penalty cases did not provide enough opportunity to consider favorable evidence for the defendant. Judge O'Scannlain dissented:
[T]he majority strains mightily--and unpersuasively--to perceive constitutional error in the comprehensive and perfectly proper jury instructions given by the state trial judge. Because there simply is no such error, and the Supreme Court has expressly told us so on two separate occasions, I must respectfully dissent from the court's reversal of the district court's denial of the petition for the writ with respect to the penalty phase.
Today the Supreme Court handed down the first opinion of the Term, Ayers v. Belmontes, reversing Reinhardt in an opinion by Justice Kennedy. There's a bit of a deja vu feeling to the case, but there are at least two interesting tidbits: all four left-of-center Justices dissented, making this a 5-4 decision, and Justice Scalia's brief concurrence that would have adopted a more expansive view was joined only by Justice Thomas (and not by Roberts or Alito).

  Thanks to SCOTUSblog for the links.

[Carolyn Ramsey (guest-blogging), November 13, 2006 at 10:26am] Trackbacks
Intimate Homicide:

My work on the legal history of public responses to intimate homicide has attracted attention in part, I think, because it taps into present-minded concerns about domestic violence and the gendered politics of the criminal law. Over the next week, I will share with you my research on intimate homicide in the late nineteenth and early twentieth centuries. This research is published in my law review article, “Intimate Homicide: Gender and Crime Control, 1880-1920,” 77 Univ. Colo. L. Rev. 101 (2006), and in my short essay, “Public Responses to Intimate Violence: A Glance at the Past,” 121 Public Health Reports 460 (2006). In the public health essay, I introduce my thesis as follows:

“In 2004, a California jury sentenced Scott Peterson to death for killing his wife and future child. Peterson is an anomaly on death row, which is mostly occupied by men who committed serial murders, killed law enforcement officers, or caused death during other violent crimes, such as armed robbery. Yet, the outcome of his case recalls a nineteenth-century tradition of executing men for murdering their lovers, wives, and other family members. Although no adequate public response to the problem of intimate violence was achieved in the past, the criminal justice system suffered from different flaws and biases in this regard than one might expect.

Lack of attention to non-lethal intimate violence may have been ‘the normal state of affairs’ throughout most of American history. Prior to the 1980s, only the colonial era (especially 1640 to 1680) and the late Victorian era (especially 1870 to 1890) witnessed sustained efforts to curb wife-beating and ‘unnatural severity’ toward children. However, scholars have overstated the level of public apathy toward men’s homicidal aggression against women. Leading criminal law casebooks, numerous law review articles, and books by influential legal scholars and historians repeat the erroneous claim that, in the past, the legal doctrines of self-defense and provocation endorsed men’s brutality, whereas women were severely punished for perpetrating intimate violence.

In fact, the converse was true. Data culled from dusty criminal case files in New York and Colorado demonstrates that, in both the eastern and western United States, men accused of killing their intimates often received stern punishment, while women charged with similar crimes were treated with leniency . . .

[My] research also unearths the pre-history of the ‘battered woman’s syndrome defense.’ In modern criminal trials, battered woman’s syndrome evidence bolsters the credibility of women who killed their batterers [and supports the argument that they honestly and reasonably feared for their lives.] . . . modern approaches suggest that, when assessing the culpability of a battered woman who killed, the jury should be allowed to take her history of abuse into account. No formal battered woman’s syndrome defense existed in the late 1800s and early 1900s. However, juries and courts implicitly recognized one and even extended it to women who killed to avenge infidelity or abandonment. Indeed, the paternalistic understanding of social relations prevalent in the Victorian era tended to equate physical and emotional maltreatment of women . . .

Of course, paternalistic efforts to stop male abuse of women did not go uncontested. Yet, the ineptitude of the state in curbing such abuse was attributable to the deficiency and corruption of early policing, as well as to cultural conflict over the role of violence in family government. It was not the product of a hegemonic gender ideology tolerant of extreme violence against women.”

My intimate homicide research grew out of another project on the nature of the prosecutor’s “public” role in the late nineteenth century. In researching this earlier article, I compiled data that indicated that prosecutors and jurors were relatively keen to send male domestic killers to the gallows, despite some squeamishness about the death penalty in general. This finding surprised me because I had always taught my criminal law students that the provocation and self-defense doctrines tolerated and perhaps actually encouraged male aggression, whereas women who committed murder could expect severe punishments. I began to wonder if this narrative, which resonated with my own feminist beliefs, obscured a more complicated and nuanced reality.

To explore that possibility, I decided to embark on a comprehensive analysis of public responses to lethal intimate violence into two distinct regions — the northeast and the frontier west. This is how I describe my sources in my University of Colorado Law Review publication:

“This article relies in part on case files preserved by New York County prosecutors, whose jurisdiction was coextensive with New York City for most of the nineteenth century. The Denver data comes from the scrapbooks of police detective Sam Howe, who kept a record of Denver homicides prior to 1921 in a special book. Most of Howe’s cases can also be found in the records of the Denver and Arapahoe County District courts . . . Impeccable data on American executions compiled by M. Watt Espy and Michael Radelet facilitates discussion of capital punishment in intimate murder cases.”

Although I combined my archival data with analysis of appellate opinions, my focus on previously unexplored primary sources allowed me to say something new. The origins of the mistaken view that I challenge lie in faulty methodology. A narrow focus on published appellate opinions points to a few unrepresentative cases of women who received long prison terms or the death penalty for killing their husbands. In fact, most female defendants were acquitted of murder charges because juries sympathized with their stories of abuse and abandonment. However, because acquittals and lesser-included offense convictions did not result in appeals, this information remained hidden, prior to my research. A comparison between New York and Colorado and their urban centers reveals their remarkably similar treatment of intimate homicide: “Despite vast differences in population and culture, both [states] resolved these cases in a gender-biased way that benefited female defendants.”

Tomorrow, I plan to talk in detail about the criminal-justice response to the killing of abusive men by their female partners in the late nineteenth and early twentieth centuries. Wednesday, we’ll take a look at the male defendants’ cases, and on Thursday, I’ll offer a cultural and legal comparison of the two regions on which my study is based — New York and Colorado. Finally, on Friday, I’ll post some concluding thoughts, including my tentative hypotheses about why domestic violence prevention failed to occur, despite demonstrated societal revulsion toward men who killed their intimates.


Carolyn Ramsey, Guest-Blogging:

I'm delighted to say that University of Colorado law professor Carolyn Ramsey will be guest-blogging this week, about the history of the criminal law's responses to intimate homicide. I invited Prof. Ramsey to do this after reading her Intimate Homicide: Gender and Crime Control, 1880-1920, 77 Univ. Colo. L. Rev. 101 (2006), which I found to be fascinating and eye-opening. I hope you folks find her work as interesting as I did.


Ducking Responsibility:

One of the main commenters who is defending the organ compensation ban posted this item:

[W]e're not "letting them die", anymore than we are "letting die" all the people who die due to DWIs or gun violence because we decide not to completely ban cars or guns. Society is not responsible for those deaths. The illness or accident which damaged their kidneys or hearts or lungs is responsible for the death.

Good heavens — how can this possibly be right? The law makes paying for organs into a federal felony. Everyone involved in the process can be sent to prison. It isn't just that the law steps aside and fails to ban some dangerous-but-useful tool. The law affirmatively steps in to prohibit the main tool that people use to get others to help them (especially when the help comes at some expense to the helper): the payment of compensation.

How can those that back the law then refuse responsibility for this? Perhaps the bans can be defended on the grounds that there's a very important reason behind them, important enough to justify letting people die for want of organs. (I respond to such arguments elsewhere in this chain of posts.) But to say "it's not the law's fault, it's the fault of the disease" makes no moral sense.

If you want analogies, there are plenty. Say the law bars anyone from paying for life-saving abortions; predictably, fewer doctors choose to perform the abortions; as a result, a woman dies because no doctor is available. Would we say that the law isn't responsible for the death, and only the underlying health condition is responsible for the death? We might say that if the matter was simply the government's not paying for such abortions, but not when the government steps in to prohibit all private payment.

Likewise, say the law makes it a federal felony to pay for bodyguard services. A woman who had gotten death threats and who would have wanted to hire a bodyguard gets killed. Would we say that the law isn't responsible for the death, and only the killer is responsible for the death? (I mean, as the commenter meant, morally responsible and not legally responsible via the tort system.) Of course not. Yet given that we see how banning compensation for life-saving actions jeopardizes people's lives, how can we refuse to see that when the life-saving action is the provision of an organ?


Commercial Fishing and Paid Organ Provision:

I'm revising my Medical Self-Defense article, and adding some statistics that I should have added before. I had already pointed out that the risk of providing organs is modest:

Giving a kidney carries a 0.03% risk of death or irreversible coma, a less than 2% risk of complications, and some unknown but not high increase in susceptibility to kidney disease. Giving part of a liver (livers regenerate, so giving part is possible) has been associated with a 0.25% incidence of provider death, plus some risk of nonfatal complications. Marrow donation is safe, though temporarily painful.

But I hadn't mentioned the specific occupational danger statistics, which report (see page 13 of this PDF) that working in fishing or logging for a year carries a 0.1% risk of death from occupational hazards. Working for a year as a truck driver or a delivery driver carries a 0.03% risk of death.

So let's think again about the argument that organ sales should be banned because allowing organ sales would unduly pressure poor providers to put their health and their lives at risk. We let people become professional fishermen or loggers, and we'd consider a ban on those occupations to be no service to the poor. Yet these occupations, with their modest return on investment and risk, likely appeal especially to the poor, and thus may (by analogy to the organ argument) unduly pressure poor workers to put their lives at risk.

Why not let people run a comparable risk (somewhat higher for liver providers, somewhat lower for kidney providers, though perhaps offset by the unknown extra risk of kidney disease in the future) to provide organs? Why protect people from their own supposedly foolishly life-threatening decisions when it comes to providing organs, and not when it comes to providing their labor?

Or consider this hypothetical: A fisherman grows tired of working in this dangerous occupation. Each year he saves only (say) $5000 per year, given that his yearly income must be offset by the usual yearly expenses for housing, food, and so on; not a good deal, he concludes. Instead, he'd much prefer to sell a kidney, put the $30,000 aside as savings (or spend it on education for himself or his children) and take a desk job that pays somewhat less than his fishing job but that is quite safe — oh, and incidentally save someone's life in the process.

"I'll probably decrease my risk of death, and I'll certainly save myself a great deal of physical discomfort and make more money," he says. "No, no!," the critics of compensation for organs say. "We must protect you from the risk that you will be unduly pressured into this unwise transaction by the prospect of economic gain. If you simply wanted to stay in a dangerous business like fishing, you'd be free to choose that; but when you try to provide a kidney for money, we have to step in to save you." How can that possibly make sense?

I realize that this particular argument doesn't confront some of the other arguments against compensation for organs, but I've dealt with them (or will deal with them) in other posts. Here I just want to confront the "protect poor pressured providers" argument.


Even More Bad News for Anti-Gun Lobby:

1. Speaker-in-waiting Nancy Pelosi has endorsed John Murtha for Majority Leader, according to The Hill. Murtha is a a southwestern Pennsylvania Democrat with a long-standing A rating from the National Rifle Association. Hoyer is a Maryland Democrat, with a long-standing and well-deserved F rating, although he has sometimes worked to procure federal military contracts for Beretta USA, a firearms manufacturer in his district.

Murtha is, of course, known as a prime advocate of cut-and-run in Iraq strategic redeployment to Okinawa, whereas Hoyer is merely a supporter of cut-and-run a rapid exit from Iraq, but not necessarily to Okinawa. And it is even more obvious that Pelosi's preference for Murtha has much to do with her desire to take revenge on Hoyer (a rival Democratic leader) and absolutely nothing to do with Murtha's pro-gun voting record.

Nevertheless, it the odds have increased that the Senate (with usually pro-gun Harry Reid) and the House (with inflexibly pro-gun John Murtha) will both have Majority Leaders who will be receptive to the argument that the gun control issue is a loser for the Democratic party.

2. The Rocky Mountain News (Nov. 11) chalks up the winners and losers of the 2006 election. First on the list of losers is "Gun control advocates. Democrats see this as a radioactive issue for them, have to wait for now."

3. In The New Republic, Thomas Edsall suggests that pro-gun "pragmatic, culturally conservative, libertarian" Democrats from the Rocky Mountains hold the key to the party's salvation.

4. During election-night blogging on this site, and in a follow-up on National Review Online, I suggested that about half the R to D shifts in the House had involved the election of pro-gun, Blue Dog Democrats, while the other half had involved the replacement of pro-gun Republicans with anti-gun Democrats. Gun Owners of America points out that several seats in which one Republican replaced another Republican (in Michigan, Nebraska, and Ohio), which I had not written about, resulted in a strongly pro-Second Amendment Republican replacing a mediocre Republican. Accordingly, my estimate that the pro-gun side lost a total of 14 votes in the House should be revised to a loss of 12.5.

The loss still leaves intact the pro-Second Amendment majority in the House. More significantly, the fact that fervent gun control advocates Charles Schumer and Rahm Emanuel won a Democratic congressional majority by deliberately recruiting so many pro-gun Democrats suggests that the party has outgrown the mistakes of the Clinton/Columbine era, when party leaders lost the Congress (1994) and then the Presidency (2000) on the mistaken belief that gun control was a popular issue.

UPDATE: Here's the opening of the Monday issue of National Journal's Hotline, which was delivered to subscribers at approximately 12:30 p.m. Eastern Time:

"What signal is Pelosi sending by backing Murtha over Hoyer? It depends on how you choose to view the maj. leader's race. -- Viewed through the prism of Iraq, Pelosi is embracing her party's lefty protest crowd. But on many other issues, from abortion rights to gun control to ANWR, Murtha is decidedly to the right of Hoyer (check out their Nat'l Journalratings ). Pelosi's move could endear her to the Heath Shulers and Brad Ellsworths of the 110th, who are leery of backing the liberal Speaker. It could also help Hoyer among those Blue Dogs, who are itching to say they're bucking Pelosi.
A few commenters on this post, and on some of my previous posts, continue to push that the Democrats' new-found respect for the Second Amendment had nothing to do with their wins on Tuesday, or on their governing plans. National Journal, a well-respected source of the conventional wisdom of Washington, obviously disagrees.


Sunday, November 12, 2006

Is the Solicitor General Really a General?: In last week's oral argument that I noted yesterday, Justice Stevens referred to Solicitor General Paul Clement as "General Clement," and at least a few commenters wondered if it is correct to refer to the SG as a "General."

  There's a literature on this question, actually. I think Michael Herz has it right in this article on the subject: Washington, Patton, Schwartzkopf, and . . . Ashcroft?. Herz argues that Attorneys General and Solicitors General aren't Generals; they're Attorneys and Solicitors. So calling Clement "General Clement" is wrong, I think. I vaguely recall seeing the opposite argument somewhere (perhaps in The Green Bag a few years ago?), but I can't seem to find it. Perhaps some Readers General can jog my memory?

  UPDATE: The online etymology dictionary suggests that the unusual subject-first, adjective-second order of the phrase owes to its french origins:
Attorney general first recorded 1533 in sense of "legal officer of the state" (1292 in Anglo-Fr.), from Fr., hence the odd plural (subject first, adjective second).

Sunday Song Lyric: Live's Ed Kowalczyk believes "Dance With You" off of the band's "The Distance to Here" album is possibly most beautiful song he's ever written, and he may be right. In any event, it is a favorite of Redheadlaw7 (now Mrs. Non-Volokh). In honor of her, here's a taste:
The stillness in your eyes
Convinces me that I
I don't know a thing
And I been around the world and I've
Tasted all the wines
A half a billion times
Came sickened to your shores
You show me what this life is for

I wanna dance with you
I see a world where people live and die with grace
The karmic ocean dried up and leave no trace
I wanna dance with you
I see a sky full of the stars that change our minds
And lead us back to a world we would not face
The full lyrics are here. Also, You Tube has a live video of the song from an October 20 concert in Sydney, Australia, and this Buffy clip that used the song.

A federalism chicken comes home to roost - The Commerce Clause and Partial Birth Abortion:

It is interesting that, as Orin Kerr notes in his recent post on the partial birth abortion case, liberal Supreme Court justices Ruth Bader Ginsburg and John Paul Stevens are suggesting that the 2003 federal law banning partial birth abortions may fall outside the bounds of Congress' power under the Commerce Clause. This is an example of the ways in which broad interpretations of the Commerce Clause - long supported by most liberal jurists and legal scholars - can be used to justify federal laws that liberals abhor.

It is particularly ironic that Justice Stevens would ask "how could the Commerce Clause justify application [of the partial birth abortion ban] to a free clinic? I don't understand." The text of the Commerce Clause gives Congress the power to regulate "commerce . . . among the several states." Free abortions provided to residents of the same state where the clinic is located are neither commercial nor interstate. So the text of the Constitution provides at least some support for Justice Stevens' skepticism.

Unfortunately, Stevens' own previous jurisprudence does not. Stevens is the author the Court's majority opinion in Gonzalez v. Raich, which held that the Commerce Clause gives Congress virtually unlimited power to regulate "economic activity," broadly defined to include any action that involves the "production, consumption, or distribution of commodities." Since abortion (whether free or not) necessarily involves the use ("consumption") of medical supplies, it clearly falls within Stevens' definition of economic activity in Raich. Indeed, Raich itself held that the mere possession of marijuana for medical purposes is "economic activity," even in a case where the marijuana st issue (much like the hypothetical abortion in Stevens' question) had been provided to the users for free. Moreover, even if free abortion clinics are not engaged in "economic activity," they could still be regulated under Raich so long as Congress could "rationally" suppose that such regulation of "noneconomic" activity was need as part of a broader regulatory program (in this case the policy of banning partial birth abortions by paid providers). For readers unversed in in the high-falutin' terminology of constitutional law, the word "rationally" in this context basically means that there is some theoretically conceivable argument to support Congress' reasoning, even if that argument is almost certainly wrong.

There are other ways in which the federal partial birth ban may be justified under Raich's interpretation of the Commerce Clause. I provide a more detailed analysis of the ways in which that case largely gutted limits on federal Commerce Clause authority in this article.

In the same piece, I also noted that the federal partial birth ban is just one of many recent examples of conservatives using broad interpretations of federal power to advance their policy objectives. The article also cites several liberal legal scholars and commentators (such as Harvard Law School Professor David Barron, pundit Franklin Foer, and some gay rights advocates) who have begun to rethink the desirability of backing virtually unlimited federal power as a result of these developments.

The Democrats' recapture of Congress in the recent election may put a damper on such rethinking. But given the narrowness of the new Democratic majorities, the moderate to conservative nature of many of the new Democratic congressmen and senators, and the possibility that the Republicans will recoup their losses in 2008 or 2010, it may not totally end it. Unlimited federal power can gore liberal Democratic oxen as readily as conservative Republican ones.

UPDATE: To avoid confusion, I should note that Solicitor General Paul Clement was right when he responded to Justice Ginsburg's questioning by noting that the federalism issue had not been raised by the parties to the case. Nor did it factor into the lower court's decision. Thus, it would be understandable if the Court ignored federalism issues in reaching its decision. However, if (as is highly likely) the Court upholds the partial birth ban against challenges based on privacy rights, the federalism issue could well come up in future litigation.

Related Posts (on one page):

  1. A federalism chicken comes home to roost - The Commerce Clause and Partial Birth Abortion:
  2. Federalism and the Abortion Case: