Saturday, December 2, 2006

Oral argument in Maryland marriage case:

It'll happen Monday starting at 10 a.m. Eastern. You can watch it here. The briefs, including the amicus briefs, are available here.

Opinion in Montgomery County Predatory Lending Case:

Thanks to a helpful reader, who pointed me to the opinion in the Montgomery County Predatory Lending case that I mentioned yesterday.

The opinion and related materials are available here.

The law firm of Buckley Kolar has also posted it on their web site and will be providing follow up commentary in their Infobytes newsletter next week.


Friday, December 1, 2006

State Constitutional Right to Keep and Bear Arms Provisions, Past and Present:

I include all 44 states' provisions, dating from 1776 to 1998, sorted by state, categorized by type, and sorted by date, in this short article that's forthcoming in the Texas Review of Law & Politics. It's mostly reference material with little analysis, but it hadn't been assembled before in an Official Source. But since the two Web pages that I put together on this have been cited in several law review articles, I figured that they were useful — and that publishing them in a law review could get still more people to notice them and use them.


Harper v. Poway Unified School District and the Supreme Court:

The Court just agreed to hear one Ninth Circuit high school student free speech case, Morse v. Frederick ("Bong Hits 4 Jesus"). What does this mean for the other Ninth Circuit high school student free speech case, Harper v. Poway Unified School Dist. ("Homosexuality is Shameful")?

I think Harper will likely be held until the Court decides Morse, and if there's some uncertainty about whether the Harper Ninth Circuit decision is right given the Court's ruling in Morse, the Court will then "GVR" -- Grant, Vacate, and Remand for reconsideration in light of the new precedent. Last Monday, the Court denied "[t]he motion of petitioners to expedite consideration of the petition for a writ of certiorari," but I suspect this just reflects the Court's decision to actually slow down consideration of the petition until after Morse is decided.


4 Votes 4 Bong Hits 4 Jesus:

SCOTUSblog reports. (Recall that it takes four Justices' votes to agree to hear a case.)


"The Fact That Citizens Have a Constitutional Right To Bear Arms":

My post below about yesterday's Washington Supreme Court case reminded me that a week before the Kentucky Supreme Court expressed the same view:

Moreover, the statute provides that personal property is merely subject to forfeiture, meaning that the Commonwealth's argument in favor of automatic forfeiture [of the firearms] cannot be correct, especially in light of the fact that citizens have a constitutional right to bear arms and a right to due process of law. [Footnote: Ky. Const. §§ 1(7), 11; U.S. Const. amend. II, V, and XIV.]

Brewer v. Commonwealth, 2006 WL 3386645, *3 & n.5 (Nov. 22, 2006).

I should note that the dominant view in state courts remains that the Second Amendment is not applicable to the states, whether or not it secures an individual right. See Brewer v. State, 2006 WL 3345162, *2 (Ga. Nov. 20, 2006). The Court had indeed so held in the late 1800s, at a time when it was holding that most of the other Bill of Rights provisions don't apply to the states, even via the Bill of Rights. The leading case on this is United States v. Cruikshank, a 1875 case that held that neither the First nor the Second Amendments applied to the states; the Court reversed course on this in the 1920s and 1930s as to the First Amendment, but it hasn't revisited this question since 1900 as to the Second Amendment.


"Citizens Have a Constitutional Right To Bear Arms Under Both the Federal and State Constitutions":

So says the Washington Supreme Court, State v. Williams, 2006 WL 3438188 (decided yesterday), and uses this as a justification for interpreting a state ban on possessing short-barreled shotguns as requiring knowledge that the shotgun was indeed shorter than the statutory limit. Here's the relevant excerpt from the three-Justice plurality:

[W]e are ... concerned that possessing a firearm can be innocent conduct. Citizens have a constitutional right to bear arms under both the federal and state constitutions. U.S. Const. amend. II; Wash. Const. art. I, § 24. A person may lawfully own a shotgun so long as the barrel length is more than 18 inches in length and has an overall length of less than 26 inches. RCW 9.41.190 precludes possession of a short-barreled shotgun. Moreover, the statute also criminalizes possession of a short-barreled rifle and a machine gun. The factor concerned with innocent conduct is particularly important in the case of a machine gun, which can be altered in ways not easily observable. If strict liability is imposed, a person could innocently come into the possession of a shotgun, rifle, or weapon meeting the definition of a machine gun but then be subject to imprisonment, despite ignorance of the gun's characteristics, if the barrel turns out to be shorter than allowed by law or the weapon has been altered, making it a machine gun. The legislature likely did not intend to imprison persons for such seemingly innocent conduct.

The four-Justice dissent agrees entirely on this point:

These holdings involve a particularly sensitive and limited area of regulation, since both the United States and Washington State Constitutions protect a "right ... to bear arms ...." U.S. Const. amend. II; Wash. Const. art. I, § 24.... The majority's recognition that the State must prove a defendant knows the characteristics that make a firearm illegal means that knowledge of the characteristics that make the firearm illegal is an essential element of the crime....

The plurality and the dissent disagree on whether the failure to instruct the jury about the defendant's required mental state was harmless in this case, but they agree that the Second Amendment protects the right to bear arms, and that this counsels against reading the statute as imposing strict liability.

As you can see, neither opinion explained much about why it was accepting the individual rights view of the Second Amendment, but just cited the Second Amendment and the Washington right-to-bear-arms provision.

UPDATE: I originally quoted the plurality without noting that it was a plurality, and didn't mention the dissent; my mistake — thanks to commenter marksleen for pointing out. I've corrected the post accordingly, and the bottom-line remains the same: A majority of the Washington Supreme Court treated the Second Amendment as securing an individual right to bear arms.

Related Posts (on one page):

  1. Pennsylvania Supreme Court Treats Second Amendment as Involving an Individual Right:
  2. "The Fact That Citizens Have a Constitutional Right To Bear Arms":
  3. "Citizens Have a Constitutional Right To Bear Arms Under Both the Federal and State Constitutions":

"The Religion of Peace and Mercy":

Here's what Iranian Grand Ayatollah Mohammed Fazel Lankarani — "one of the dozen or so Grand Ayatollahs in Iran, who has a large following" — wrote on Sept. 16, 2006, responding to the Pope's speech (the one in which the Pope quoted a Byzantine emperor who wrote, "Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached"):

We can easily prove for [the Pope] that Islam is the religion of peace and mercy. One of Quran's most glorious verses is the verse 12 of Al-An'am chapter which says[, ']He has ordained mercy on Himself[']. Pope Benedict XVI should spend several years to understand this verse.

His statements about Jihad, holy war, emanate from his lack of knowledge and understanding from the reality of Jihad. Obviously he has erroneously taken the Islamic Jihad for what the US government has created and named as 'terrorism'. We wonder why he who is considering himself leader of a divine religion denies God's will outright under the pretext of intellect and logic.

Now here's what Grand Ayatollah Lankarani did a few days ago, with regard to a writer who reprinted the Mohammed cartoons; I quote the BBC account:

One of Iran's most senior clergymen [Grand Ayatollah Mohammed Fazel Lankarani] has issued a fatwa on an Azeri writer said to have insulted the Prophet Muhammad.

The call on Muslims to murder Rafiq Tagi, who writes for Azerbaijan's Senet newspaper, echoes the Iranian fatwa against Indian writer Salman Rushdie....

The Iranian media is reporting that Grand Ayatollah Lankarani's followers inside the republic of Azerbaijan wrote to him asking for advice about what they called "the apostate writer".

They accuse the Azeri writer of portraying Christianity as superior to Islam and Europe as superior to the Middle East.

They allege that he has ridiculed all the sanctities of Islam and done it knowingly, fully aware of the consequences of his action....

I'm sure there are many Muslims whose Islam is a religion of peace and mercy. But I feel comfortable saying that Grand Ayatollah Lankarani's version of Islam is not.

I thank Ali Eteraz, who is organizing a Muslim remonstrance against Lankarani's fatwa, and to InstaPundit, who linked to Eteraz's work, for the pointers to the Grand Ayatollah's statements.

UPDATE: I initially thought that the fatwa was issued because of several actions on the writer's part, but rereading the article makes me doubt that, and suspect that it might have been based just on reprinting the Mohammad cartoons; I've therefore deleted the "among other things" before "reprinted the Mohammed cartoons." If any of you have more precise information on this, please let me know.


Defence and Defense:

I've been looking at some 1800s American legal sources, and I noticed that many still used "defence" well into the second half of the century. At some point, though, "defense" became the universal American term. Do any of you know why the "-ce" shifted to an "-se"? Did the "-our" / "-or" shift and the dropping of "-me" on "programme" and the like happen for the same reason? If the latter shift was part of a spelling simplification movement, why the "-ce" / "-se" change, which isn't really a simplification?


Words from the Becket Fund,

a leading Religion Clauses public interest firm that is usually seen as coming from the Right, though they represent a wide range of litigants:

"Requiring somebody to take an oath of office on a religious text that's not his" violates the Constitution, said Kevin Hasson, president of The Becket Fund for Religious Liberty.

Andrea Stone, USA Today, Dec. 1, 2006.


"Where's the ACLU?"

A commenter on the "Creat[ing] an Atmosphere Where Students Do Not Feel Represented" thread asks, "Where's the ACLU? Right, nowhere." He then goes on to say, "Where's the ACLU? Where are the liberals? They are the ones ATTACKING this man."

Well, let's keep this in perspective. First, the ACLU's litigation arm can't do anything about this — we're talking here about a proposal to enact a student government rule. Once it's enacted, it might be challengeable, though perhaps even then the challenge would have to wait until the rule is enforced. But when it's just being talked about, neither the ACLU nor anyone else can sue.

Second, recall that I only got wind of this controversy at Boise State because Clayton Cramer e-mailed me about it. It's at least within the realm of possibility, it seems to me, that Cramer didn't e-mail the ACLU, that the ACLU's staff doesn't read Cramer's blog, and that the ACLU hadn't heard of this through other sources. (My NEXIS search for (sawmiller or "feel represented") and (bsu or boise state) revealed no newspaper references.) Even if the ACLU had heard about this, it might have legitimately concluded that it has other more pressing matters on its plate — but for now, we don't even know that the ACLU people had even heard of this matter.

Third, there's certainly no evidence that the ACLU is one of the "ones attacking this man," which is what the comment seemed to me to imply (though I suppose it's possible that the "They" refers back only to "liberals" and not both to "liberals" and the "ACLU"). And to the extent that the assertion is just a loose way of saying that the ACLU supports campus speech code, that assertion is mistaken. As I noted before, the ACLU has generally opposed campus speech code. In Iota Xi v. GMU, the first federal court of appeals case striking down college speech codes (in 1993), the ACLU of Virginia filed an amicus brief in favor of the plaintiffs, who were punished for putting on a skit in blackface. According to a Nat Hentoff column — and Hentoff has long been a vocal opponent of speech codes — the two earlier district court cases that ultimately struck down campus speech codes, in Michigan and in Wisconsin, were filed by local ACLU affiliates.

In Newsom v. Albemarle County School Bd., a 2003 court of appeals case, the ACLU backed a high school student's right to wear an NRA T-shirt (surely a "non-liberal voice[]"). For another recent example of an ACLU chapter's interceding on behalf of allegedly racially offensive speakers, see here. And the national ACLU's 1994 position statement on the subject condemns campus speech codes; I believe the national ACLU's anti-speech-code policy was adopted in 1991 (though there was a good deal of dissent within the ACLU about it, especially, I'm told, in the California chapters).

I've criticized the ACLU in the past on various matters, and I'm sure I will again; I think they're mistaken on many matters. But unfounded criticism is both itself wrong, and undermines the well-founded kind.

UPDATE: (1) Just to make explicit what I thought was implicit in "Second," but on reflection might not be clear. The ACLU doesn't just litigate but also sometimes speaks out in other ways; "First" is intended to explain why it can't litigate here, and "Second" notes one reason why it might not have spoken up.

(2) Commenter Jonathan Sawmiller -- presumably the fellow involved in the original story -- reports that "the ASBSU Ways and Means Committee indefinitely tabled the proposed Senate Bill #10," so that the restriction being discussed here "shouldn't be appearing in ASBSU code anytime soon."


John Quincy Adams' Oath of Office:

From a Washington Foreign Press Center briefing Donald R. Kennon, Chief Historian at the United States Capitol Historical Society:

There's an interesting thing about John Adams and John Quincy Adams -- they were both very religious men, and John Quincy Adams were so religious that he is one of probably only one or two American presidents who did not take the Oath of Allegiance on a Bible. Now, it's kind of ironic that John Quincy Adams, being such a religious man, would not have used the Bible, but he said that he thought the Bible should be reserved for strictly religious purposes. So he took the Oath of Office on a book of laws, the Constitution and American laws. That's really what he was swearing allegiance to was the Constitution, so he didn't use the Bible.

Thanks to reader Pennywit for the pointer.


Montgomery County Anti-Predatory Lending Law Struck Down:

The Washington Times reports:

A Montgomery County judge yesterday struck down a predatory-lending law, saying it usurped state authority.

Circuit Court Judge Michael D. Mason said the law -- which cites "abusive prepayment penalties" and "excessive points and fees" as two indicators of discriminatory lending against protected classes of individuals -- is unconstitutionally broad.

"No matter how noble the purpose, a 'general' law is beyond the authority of the county to enact and is unconstitutional," he concluded in a 29-page opinion. "As drawn, it has substantial territorial effect beyond the borders of Montgomery County."

I haven't been able to locate the judge's actual opinion, so if someone has a link to it, I'd appreciate it if you would post it in the comments or email it to me and I'll post it as an update.

One issue that has arisen in the Watters v. Wachovia Bank preemption case, and which I addressed in my remarks at AEI the other day (video of the program is available here), is whether the OCC's preemption of state predatory lending laws is reasonable in light of the effect of such laws on the supply of credit to consumers. Apropos of that point, the story notes:

More than 50 local and national mortgage lenders -- including several Wall Street investment banks -- said the law made it too risky to do business in the county and withdrew their services in the weeks leading up to March 8, disrupting home sales and loan refinancings.


Curricular Reform:

Unless I'm missing something, these "new" curricular ideas (whether at Penn or Stanford) seem awfully similar to the system of tracks and specialized upper-year courses that we have had at George Mason since Henry Manne first implemented as Dean here 25 years ago. The idea, as Henry first conceived it, was to enable students to begin specializing in particular areas of law (corporations, IP, etc.) while still in law school, to ease the transition to practice but also to exploit the academic setting to create a more innovative model of lawyering, by enabling an interaction of theory and practice that cannot be done in a law firm practice setting.

Related to this, it appears that Henry also may have been ahead of his time in his innovation of revamping the First Year curriculum to include economics as a mandatory course, thereby providing an introduction to economics, finance, empirical analysis, and other related topics in order to provide the grounding for these upper-level theory/practice courses that would come later. This was based on Henry's recognition of the growing interaction between law and social sciences that everyone else is now catching up to.

So now that Stanford seems to be adopting some elements of the curricular system we've been road-testing at GMU for the past 25 years, I'll venture a few observations on how this has worked here. At GMU, this "new" model of law school education has been successful pedagogically, but a bit less so practically. As will become apparent, some of the practical problems in implementing this at George Mason result from resource constraints, so those will likely be less of a hurdle at more well-endowed institutions. But here's a few observations:

--Few students end up enrolling in and staying with tracks and concentrations: Those students who enroll in tracks generally seem to find them to be an extremely valuable educational experience. The problem is that in order to get through the sequencing of classes in any sort of specialization "pyramid," a student has to decide very early on to specialize. There is thus an important path-dependency that kicks in relatively early. This requires students to know early on in their law school careers what area of law they eventually want to practice. Few students have any idea about this early in their law school careers. I, for instance, didn't become interested in bankruptcy law until I was a second-year summer associate and, in fact, didn't even take the course until my third-year fall (once I found out I was interested in it).

--Generalization and Risk-Diversification: The downside of specializing in law school is the obvious opportunity cost of losing out on a more generalized legal education. Students may want to generalize for any number of reasons: to hedge against changes in the legal economy, to prepare for clerkships (such as by taking some criminal law or fed courts classes one otherwise might not take), to prepare for the bar, to take classes from particularly-gifted professors who teach outside your particular area of interest, or just to prepare for the bar. Many students find the opportunity cost of specialization to be excessive.

--Resource Constraints: Specialization is a highly resource-intensive scheme of legal education because it requires offering a substantial number of very small, specialized, professor-intensive courses. It quickly becomes very expensive and administrative difficulties in equitably allocatin teaching loads (among other issues).

--Classes in Other Disciplines ("Build or Buy"): Stanford's program seems to rely heavily on partnering with other disciplines in the university to provide the context for its 3-D program. I'm skeptical that this will work in any major way, for several reasons. First, there is simply the issue of transaction costs--the difficulties of enrolling in different programs and the inconvenience of simply transporting oneself around campus in time to get to different buildings for different classes. Students may be willing to undertake the transaction costs in order to get some sort of formal degree (MA or PhD) at the end. At UVA, which offered an MA in legal history when I was there, the motivation seemed to be primarily that history classes were easy "A" classes with no final exam, and it is my impression that in general university graduate programs offer much higher grades than law school classes for equal, or often less, work.

Moreover, there is the risk-diversification point mentioned above in spades here, especially for less practical non-legal concentrations (history, philosophy, etc.), although it may turn out to have some appeal for subjects like Finance or Accounting. So the upshot is that unless Stanford Law plans to build or vertically integrate into providing a lot of these courses in-house rather than buying most of them, my prediction would be that few students will take many courses in some sort of informal "concentration" outside the law school unless they are part of a formal degree program.

At GMU, we have brought our first-year economics course in-house, but we contract out for some of the instructors (i.e., we have some econ profs with expertise in law & economics who come to the law school to teach the courses). We also treat the course as a capital investment during the first-year of law school that we can then build on for the rest of the students' law school careers. At GMU, we've also had more flexibility in resolving the transaction costs issues because we have both day and night programs, which allow students and professors more flexibility in terms of scheduling and transporting themselves around.

From this perspective Vanderbilt's law & econ program may turn out to be more successful because most of the program apparently is going to be built in-house, thereby reducing the transaction costs for students and faculty of contracting for these courses.

So my overall impression, drawing on our 25 years of experience at GMU with similar programs, is that these curricular innovations will probably turn out to be more successful pedagogically than practically.

I'm sure there are readers out there who are GMU students and alumni who could provide a useful perspective on all of this as well. We also have some curricular innovations of our own in the works that we will announce sometime in the near future.


Historical Perspective on Curricular Reform: Matt Bodie's post on whether we are experiencing a "new era of law school innovation" in the curriculum reminds me of a very interesting article I recently read: John C. Weistart, The Law School Curriculum: The Process of Reform, 1987 Duke L.J. 317.

  The article begins with a familiar-sounding refrain:
There is an appearance of great ferment in discussions of the American law school and its curriculum. Proposals for reform abound. Some of these criticize the general structure--or lack of structure--in the traditional curriculum. Others suggest that the law school curriculum is deficient for its failure to provide instruction in a particular subject matter or skill. Economics, other social sciences, lawyering, mediation, and other litigation avoidance devices are among the new perspectives frequently urged.
  Professor Weistart summarizes the curricular reform movements in previous decades as including the following major trends, borrowing from a list by Murray Schwartz:
(a) the interest in international law in the 1950's and 1960's;
(b) the revival of an interest in the social sciences in the 1960's;
(c) the insistence on 'relevance' in the curriculum in the early 1970's, as reflected in courses such as poverty law and consumer protection;
(d) the Carrington Report of 1971, with its acceptance of the feasibility of a two-year curriculum and a clear demarcation between general and advanced law studies;
(e) responses to the articulated concern for deteriorating professional ethics, including various proposals for instruction in ethics;
(f) the clinical education movement of the 1970's and 1980's, with its proposals for broadened skills training and reduced reliance on appellate case review as the basic methodology of legal education; and,
(g) the law and economics movement of the 1970's and 1980's, which prompted both a reorientation of some traditional courses and the implementation of new advanced offerings.
  He then summarizes some of the proposals floated in the 1980s that were receiving a great deal of attention at law schools at the time:
Several different themes appear in recent proposals. There are a number of suggestions for a more thorough integration of the social sciences. Others urge that greater attention be given to legal theory, including theories of law, rights, and authority. Proposals for a significant expansion of clinical education can be found, including one that would reorient the basic introductory curriculum around clinical methods. Under other proposals, the study of 'values,' both political and cultural, would assume a more explicit role. In addition, there are various specific skills and subject areas that are suggested for inclusion in the modern curriculum. Those that have received the most attention recently include statistics, alternative dispute resolution, and techniques in written and oral communication.
  The recent proposals aren't identical to what was proposed a few decades ago. But it's interesting to see at least some degree of similarity.


Stanford Law Announces Revamped Upper-Level Curriculum: From an announcement made on Tuesday:
  Stanford Law School today announced changes that are transforming the JD into a three-dimensional degree program that combines the study of other disciplines with team-oriented, problem-solving techniques and expanded clinical training that enables students to represent clients and litigate cases—before they graduate. Stanford's innovation is being driven by the new demands on modern lawyers, which are fundamentally different from those present when the law school curriculum was formed.
  Stanford Law School Dean Larry Kramer said the pedagogical changes the school is spearheading are focused on the second and third year curriculum. He hopes Stanford’s reform—which began last year and should be fully implemented by 2009—will provide a model for legal education generally.
  Talk to any lawyer or law school graduate and they will tell you they were increasingly disengaged in their second and third years," Kramer said. "It’s because the second and third year curriculum is for the most part repeating what they did in their first year and adds little of intellectual and professional value. They learn more doctrine, which is certainly valuable, but in a way that is inefficient and progressively less useful. The upper years, as presently configured, are a lost opportunity to teach today’s lawyers things they need to know. Lawyers need to be educated more broadly—with courses beyond the traditional law school curriculum—if they are to serve their clients and society well."
  "Business, medicine, government, education, science, and technology have all grown immensely more specialized," Kramer said. "Legal education must adapt. How can a lawyer truly comprehend and grapple with a complex intellectual property dispute without understanding anything about the technology at issue? What counselor can effectively advise a client about investing in China or India without understanding their particular legal structures, to say nothing of their different cultural expectations and norms?" . . .
  Stanford Law School’s first change has been to make it easy for law students to take courses outside the law school, thus creating a way to add breadth in their education. . . .
  And while the school has long permitted applicants to propose virtually any joint degree, Kramer wants to take joint degrees a step further than other schools by enlarging the number of such programs that enable students to complete the requirements more quickly and at less expense. Specifically, he hopes to formalize more than 20 joint degree masters and PhD programs over the next three years, modeled on the longstanding JD/MBA program. Like the JD/MBA, these programs combine course requirements in ways that greatly reduce the time and money it takes to pursue two distinct degrees, typically saving a full year. Hence, many of the JD/Masters degrees—in such fields as engineering, education, environmental science, and more—can be completed in the same three years it has traditionally taken to earn a JD alone. . . .
  "What we’re doing here no other university has done," said Kramer, "and almost no other university can do, because they don't have the same number and quality of schools and departments. The idea is to utilize the rest of the university to create a more three-dimensional legal education. We realized that the rest of the university is training the people who will become our students' clients. Good lawyers need to understand what their clients do."
  This is very interesting, although I confess it's not entirely clear to me what it means. (A three-dimensional program? Who knew that Stanford has been offering a mere two-dimensional curriculum all this time?). As best I can tell, the real reform here is to decrease the number of required "law" courses in the curriculum so that students can take more courses outside of the law school. Also, the school appears to be adding two new clinics.

  It will be interesting to see how this works in practice. I vaguely recall that when I was a student at Harvard Law a decade ago, students were allowed to take one course every semester outside the law school. Among my friends, one took a Chinese language course, and another took a few courses in American politics over at the Kennedy School of Government. My recollection is that few students took advantage of this option, however; most took all of their classes in the law school. (If I recall correctly, my friends who took classes out of the law school generally viewed them as "free passes" that were nice breaks from the rigor of law school.) Of course, that was back in the 20th Century, when lawyering was different.

  Hat tip: Matt Bodie.

  UPDATE: Over at First Movers, Penn law student Anthony Ciolli argues that "Stanford is pretty much copying the Penn Law School curriculum verbatim and passing it off as 'innovative.'"

Thursday, November 30, 2006

Quote from Chief Justice Roberts, as reported in Washingtonian Magazine, December 2006, page 12:
"I like my wine French, my beer German, my vodka Russian, and my judicial system American."

Federalists and Anti-Federalists or Rats and anti-Rats? - How the winners write the history of the Constitution:

Today was the last day of class for my section of Constitutional Law I; So I thought I would take this opportunity to mention a little-known historical fact that I always make sure to emphasize to my Con Law Students:

We today are so inured to to the idea that the Constitution is a good thing that we forget that many great Americans opposed its ratification, including Patrick Henry and George Mason, after whom George Mason University is named. Others, such as Thomas Jefferson, had serious doubts about it, though they didn't actively oppose it.

History is written by the winners, and rarely is this more true than in the field of Constitutional law, where most of us have forgotten the views of Henry and Mason. Indeed, even the very names by which we call the supporters and opponents of the Constitution ("Federalists" and "anti-Federalists") are the products of winners' history. As Elbridge Gerry - who joined Mason as one of three members of the Constitutional Convention who refused to sign the final document pointed out - these terms were propagandistic labels invented by the supporters of ratification:

MR. GERRY did not like the term National .... It brought to his mind some observations that had taken place in the Conventions at the time they were considering the present constitution. It had been insisted upon by those who were called anti-federalists, that this form of government consolidated the union; .... Those who were called anti-federalists at that time, complained that they were in favor of a federal government, and the others were in favor of a National one; the federalists were for ratifying the constitution as it stood, and the others did not until amendments were made [the Bill of Rights]. Their names then ought not to have been distinguished by federalists and anti-federalists, but rats and anti-rats.

If Gerry's view had prevailed and we came to think of the Federalists and anti-Federalists as Rats and anti-Rats, I suspect that we might have a very different view of constitutional history today! I do not believe that the ratification of the Constitution was a mistake. But the anti-Federalist/anti-rat critique of the Constitution (including George Mason's criticism linked above) is much more compelling than we realize and some of it is relevant even today.

There are, unfortunately, many other issues in constitutional law where the historical winners' propaganda has distorted our viewpoint. Co-blogger David Bernstein has documented an important example in his scholarship on Lochner v. New York, and there is no shortage of other examples.


Powerline on the Delahunty Controversy:

Scott Johnson of Powerline has an interesting post on the controversy; his views are generally consistent with the ones I expressed, though he emphasizes some different points (and is rather harsher on the UM professors who signed the protest leter than I was).

Over at Dorf on Law, Michael Dorf has this interesting post on discouraging laptop use in law school classrooms.

EPA Employees Embrace Action on Climate:

Yesterday Public Employees for Environmental Protection released a "petition" signed by the presidents of 22 union locals of EPA employees calling on Congress to take action on global climate change. The letter, addressed to Congress, reads in part:

The climate changes we are witnessing are those that are largely due to human behavior. Therefore, we ask that a prudent environmental policy be put in place to take every reasonable step to abate and control GHG emissions. The voluntary and incentive-based programs to encourage the reduction in GHG emissions are not enough. We request that Congressional Leaders not only support a vigorous program of enforcement and reduction in GHG emissions, but also support research programs aimed at abating global warming through direct, cost-effective technological intervention (e.g., geo-engineering), while at the same time supporting policies and regulations that reduce GHG emission sources, in line with the principles of the Kyoto Protocol.
PEER says the letter's release was timed to conicide with the oral arguments in Massachusetts v. EPA. Yet other than the general subject matter -- global warming -- the letter has little to do with the case. While the signatories clearly advocate greater action on climate change, they've addressed themselves to Congress, caling for legislative action. Nowhere does the letter suggest that the EPA already has the legal authority to take the sorts of regulatory measures they support. To the contrary, the letter suggests that EPA's primary authority only extends to "voluntary" measures and energy conservation measures, as opposed to mandatory emission controls.

PEER also engages in a bit of overstatement in its effort to sell the story. For instance, PEER's release calls the letter a "petition" signed by "representatives for more than 10,000 U.S. Environmental Protection Agency scientists." Yet the letter itself notes that the signatories represent "over 10,000 United States Environmental Protection Agency (U.S. EPA) environmental engineers, environmental scientists, environmental protection specialists and support staff." Characterizing all of these employees as "scientists" creates a much different impression than does acknowledging that those represented by the sigantories include "support staff" and others without scientific or technical training. Presumably the opinions of agency acientists would carry more weight on the urgency of climate change than that of others.


OLC Alum Hullabaloo (Continued):

UMinn law student Ivan Ludmer has two follow-up posts (here and here) on the controversy over whether Robert Delahunty should teach Constitutional Law at Minnesota next year. Among other things, Ludmer notes that, according to this story in the St. Paul Pioneer Press, UMinn officials were completely unaware of Delahunty's role in the "torture memos" -- and presumably equally unaware about the controversy sparked by his hiring at St. Thomas several years earlier.

Brad Wendel also has a lengthy post at Legal Ethics Forum examining whether one could oppose hiring Delahunty without threatening academic freedom. The answer is yes, Wendel concludes, at least in principle. Among other things, Wendel notes, one could oppose Delahunty's hire on non-ideological grounds insofar as one believes his work "was results-driven to an extent that crossed the line between forceful advocacy of a plausible position and smoke-and-mirrors evasion of legal requirements." [Aside: I don't know Delahunty, buy given his apparent success as a career civil servant at OLC during the Clinton Administration, I wonder whether this would be a fair characterization of his work.]

If this is the proper standard, I wonder about its implications. I have seen many legal documents prepared by federal agency attorneys that clearly "crossed the line between forceful advocacy of a plausible position and smoke-and-mirrors evasion of legal requirements." Granted, these legal opinions rarely, if ever, concern something as sensitive (or morally weighty) as torture and the treatment of detainees, and we may justifiably apply uniquely demanding standards to OLC that we would not apply, say, to the FDA or EPA. Nonetheless, some agency legal work is simply gawd-awful, transparently result-oriented and undertaken with little regard for the relevant legal requirements. Should those who willingly worked on such matters also be excluded from the academy? Or does the seriousness of the subject matter make this a special case? (And, if so, then is not the opposition to Delahunty in some sense "ideological"?)


Dennis Prager and I on the Paula Zahn Show (CNN) Tonight:

Dennis Prager, another guest, and I are scheduled to be on CNN's Paula Zahn Show tonight some time starting around 8:20 Eastern, to talk about oaths of office and religion — or so I'm told; television appearances sometimes get canceled at the last moment.


"Creat[ing] an Atmosphere Where Students Do Not Feel Represented":

The Boise State Arbiter reports:

Senate Bill number 10, titled “Amendment to Article X ASBSU [Associated Students of Boise State University = the BSU Student Government] Senate Rules of Procedures,” was sent to the Internal Committee of Ways and Means. Sen. Cyndi Blue, Sen. Kayla Davis, Sen. Mark Getecha and Sen. Amy Ortmann sponsor it.

Sen. Blue said the bill is a response to how ASBSU is perceived on campus. She said the issue of a conflict of interest has come up continually.

The purpose of Bill Number 10 is to “significantly reduce the confusion caused by having Senators work, intern or be actively involved in organizations or student newspapers.” The amendment to Article 10 of the ASBSU constitution is purposed to add another section.

It states that “a senator of ASBSU may not work, intern, or be actively involved in organizations or student newspapers that create an atmosphere where students do not feel represented.”

For more context, see this Boise Weekly article. According to it, the bill's advocates seem to be particularly irate about student senator Jonathon Sawmiller, who heads the campus College Republicans chapter and writes for the Arbiter. He "first made waves in April, when he wrote an editorial ... [condemning the Latino group MECha by citing its] origins as a militant separatist group in the 1960s, calling the group 'racist Neo-Nazis,' and criticiz[ing] the university for 'funding organizations that call for the overthrow of America.'" He then wrote an Arbiter op-ed called "Protect Marriage From Violence--Vote Yes on HJR2," supporting the proposed anti-same-sex-union state constitutional amendment, "and cit[ing] statistics claiming that partners in same-sex relationships are more prone to domestic abuse, mental illness and suicide."

Then the College Republicans put up a poster, "which wasn't approved by ASBSU, as is required for student organizations," "to support 'Freedom Week,' a commemoration of the fall of the Berlin Wall sponsored by a national conservative student organization."

The poster included drawings of Che Guevara and Ronald Reagan under the title, "Who is the real revolutionary?" It labeled Guevara a "murderer," saying "his ideology murdered 100,000,000 people." Reagan, on the other hand, is identified as a "liberator," with the caption, "His ideology freed 425,574,817 people."

In response, students from BGLAD, the Boise State Cultural Center and other organizations again packed an ASBSU meeting, hoping to combat what was again being called "hate" from the conservative student. Later in the same week, a new unauthorized poster--this time, from an anonymous source--was posted around campus. On this poster, under the title "Abuse of Power," were two pictures. One showed Adolf Hitler, with the quotes "dirty Jews" and "His ideology cost 6 million lives." The other showed Sawmiller in his military fatigues, with the quotes, "Dirty illegal alien," and, "What will his ideology cost our students at Boise State?"

(Sawmiller had been quoted as using the term "dirty illegal aliens" in his April Arbiter editorial, although the opinion editor admitted in a correction that a staff member had added the term "dirty" independent of the author.) ...

ASBSU president Wyatt Parke decided to use his veto power to cancel Freedom Week, telling The Arbiter he "didn't feel like I could endorse a week that had gone so awry." ...

[Sawmiller's] opponents remain steadfast in their belief that his written opinions stretch the boundary between protected free speech and inflammatory hate speech. Several of Sawmiller's fellow senators recently put this sentiment into print: They drafted a bill that, if passed, would dictate that "a senator of ASBSU may not work, intern, or be actively involved in organizations or student newspapers that create an atmosphere where students do not feel represented."

Thanks to Clayton Cramer for the pointer.

UPDATE: Commenter Jonathan Sawmiller reports that "the ASBSU Ways and Means Committee indefinitely tabled the proposed Senate Bill #10, so those words shouldn't be appearing in ASBSU code anytime soon."

Related Posts (on one page):

  1. "Where's the ACLU?"
  2. "Creat[ing] an Atmosphere Where Students Do Not Feel Represented":


The AP reports:

In a novel effort targeting the lifestyle of North Korea's eccentric president, the Bush administration wants to make it tougher for him to buy iPods, plasma televisions, Segway electric scooters and more.

It is Washington's first-ever attempt to use trade penalties as a way of personally aggravating a foreign leader. They target items believed to be favored by Kim Jong Il or presented by him as gifts to the roughly 600 loyalist families who run the communist government....

The ban would extend even to musical instruments and sports equipment. The 5-foot-3 Kim is an enthusiastic basketball fan; Secretary of State Madeleine Albright presented him with a ball signed by Michael Jordan during a rare diplomatic trip in 2000. Kim's former secretary, widely believed to be his new wife, studied piano at North Korea's Pyongyang University of Music and Dance....

Experts said the U.S. luxury sanctions would be the first ever to curtail a specific category of goods not associated with military buildups or weapons designs -- and the first tailored to annoy a foreign leader. They acknowledge that enforcing the ban on black-market trading would be difficult.

"He's got folks who can move around nuclear weapons. If he tells these guys to get him a case of Scotch, they're going to pull it off," said James A. Lewis, a former State Department official who worked on arms controls. "Unless it's too large to fit into the cargo hold of a commercial aircraft, it's going to be tough to restrain him." ...


Smackdown and Dissent from Smackdown:

A very interesting exchange between Seventh Circuit Judges Posner and Easterbrook in the majority, and Judge Evans in the dissent, about what courts should do about certain kinds of procedural errors by lawyers. Beyond the obvious schadenfreude appeal of such things, and the case's utility as a reminder to lawyers to be careful, there's an important question here about what courts should do in such situations; fortunately, both opinions are thoughtful and eminently readable.

POSNER, Circuit Judge [joined by EASTERBROOK, Circuit Judge].... Before [reaching the merits], we remark the confusion in the parties’ briefs concerning the elements of the diversity jurisdiction. The jurisdictional statement in the appellants’ brief states that the federal district court’s jurisdiction was based on diversity of citizenship “and the jurisdictional amount of $75,000.” In fact diversity jurisdiction depends on the jurisdictional amount’s exceeding $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a).

On a completely unrelated note, let me remark the unusual use of the term "remark" in the first sentence quoted above. It's quite legitimate, even to a prescriptivist, but I don't recall ever having seen it.


Ukraine vs. The Ukraine:

A Seventh Circuit opinion remarks on what to call the country (which happens to be where I was born, though it wasn't an independent country back then):

There continues to be confusion over whether to use the article “the” in connection with “Ukraine.” In the briefs, Gutnik’s counsel uses “the Ukraine,” while the government uses “Ukraine.” Likewise, at joint remarks in January 2005, Vice President Cheney used “the Ukraine,” while President Yushchenko, the elected leader of the country, used “Ukraine.” See Press Release, Office of the Vice President, Vice President’s Remarks with Ukrainian President Yushchenko (Jan. 26, 2005) (Villa Decius, Krakow, Poland). We will use Ukraine, which is not only correct but is also preferred by Ukrainians themselves, see Associated Press, Terminology of Nationalism, N.Y. Times, Dec. 3, 1991, at A10, and is the grammatically consistent choice, see Andrew Gregorovich, Ukraine or “The Ukraine”?, FORUM Ukrainian Review No. 90, Spring/Summer 1994.

I say "The Ukraine," because that's how I learned it; I take it Cheney learned it this way, too. Interestingly, though Russian doesn't have articles such as "the," there's a similar controversy there — for most areas, you'd say something is in the area ("v Pol'she, v Angl'ii," "v" meaning "in"), but for the Ukraine, you'd say something is on it ("na Ukrain'e," "na" meaning "on"), or at least that's how you said it when I was growing up during the Soviet era. Nor was it just a country vs. area-in-a-country distinction; you'd say "v Litv'e," or "v B'elorussii," but "na Ukrain'e").

My sense is that this was because "Ukraina" wasn't just a place name, but also retained part of its non-place-name origins, in the sense of "borderland." It might also explain why Russians are quite comfortable with the "na Ukrain'e" / "the Ukraine" usage, and (as best I can tell) many Ukrainians prefer "v Ukrain'e" / "Ukraine" usage, which focuses more on the country as a country like any other rather than just the borderland of Greater Russia. I'll probably keep saying "the Ukraine," perhaps because I'm culturally much more Russian than Ukrainian (I'm still more American than Russian, but that's less relevant here), but my sense is that the tide is turning against it overtime, just as "the Lebanon" and "the Sudan" have in the past.


Solum & Bennett Debate Originalism: The Northwestern Law Review has a new online debate format called Colloquy. Former-NU Law dean Bob Bennett has a very interesting "Dialogue on Originalism" with University of Illinois law professor Larry Solum of Legal Theory Blog here. This exchange is a highly accessible way to grasp the difference between original framers intent originalism, and original public meaning originalism. There is no way to summarize the substance of the exchange here, but here is a tease:
Unlike Professor Bennett, I believe that theories of constitutional meaning deeply implicate the philosophy of language—or to put it more prosaically, interpretation and meaning, like love and marriage, go together like a horse and carriage. How can we answer the question, "What does the constitution mean?," without a theory of meaning? Such a theory provides the criteria by which the rightness or wrongness of answers to questions of constitutional meaning can be judged. And even when these questions are answered without an explicit theory, it will always be the case that some implicit theory will be doing work behind the scenes. And once the implicit theory is made explicit, it may turn out to be wrong, confused, or even self-contradictory. . . .

There is a larger point to be made about this exchange. The formulators of early versions of originalism made a mistake that is very much like the mistake that Professor Bennett has made in this exchange. They formulated a theory of constitutional meaning that could not work, because it was inconsistent with fairly elementary truths about meaning in general: the early originalists made serious philosophical errors. Original-meaning originalism—which focuses on the public meaning of the text (which I have called "clause meaning")—avoids those mistakes. Of course, original-meaning originalism does not have the same "normative punch" that early originalists mistakenly attributed to intentionalism. Jack Balkin has made that point clearly and forcefully in his recent work. In my experience, many constitutional theorists haven't yet grasped that there has been a sort of Copernican revolution in constitutional theory. Many constitutional scholars assume that "originalism" means "intentionalism," and that talk about "original public meaning" is just a minor and insignificant tweak in originalist theory. Moreover, there is an implicit assumption that the "new originalism" is intended to serve the same political agenda as the "old originalism." These assumptions are simplistic and, for the most part, false. Original-meaning originalism is not a close cousin of intentionalism—it is a completely different theory. And the political agendas of the new originalists are as diverse as the political views of Randy Barnett and Jack Balkin—hardly identical to those of Robert Bork or Raoul Berger.
Read the whole thing.

(civil comments only please)

NYT loses in SCOTUS on reporters' privilege: From BeldarBlog: The Supreme Court has refused to stay the Second Circuit's denial of a claim of reporter's privilege asserted by the New York Times. Here is the Second Circuit's description of the case:
After the attacks on the World Trade Center and the Pentagon on September 11, 2001, the federal government launched or intensified investigations into the funding of terrorist activities by organizations raising money in the United States. In the course of those investigations, the government developed a plan to freeze the assets and/or search the premises of two foundations. Two New York Times reporters [Philip Shenon and Judith Miller] learned of these plans, and, on the eve of each of the government's actions, called each foundation for comment on the upcoming government freeze and/or searches.

The government, believing that the reporters' calls endangered the agents executing the searches and alerted the targets, allowing them to take steps mitigating the effect of the freeze and searches, began a grand jury investigation into the disclosure of its plans regarding the foundations. It sought the cooperation of the Times and its reporters, including access to the Times' phone records. Cooperation was refused, and the government threatened to obtain the phone records from third party providers of phone services. The Times then brought the present action seeking a declaratory judgment that phone records of its reporters in the hands of third party telephone providers are shielded from a grand jury subpoena by reporter's privileges protecting the identity of confidential sources arising out of both the common law and the First Amendment.
The Second Circuit rejected this claim. The Times asked Justice Ginsburg to stay the Second Circuit's mandate. She referred the NYT's request to the full Supreme Court, which refused that request, without any dissents.

(civil comments only please)

More Reax to Mass v. EPA Argument:

Here are some more reactions and analyses of yesterday's oral argument in Massachusetts v. EPA:

If that's not enough, Howard rounds up some of the news covereage here. I hope to post more of my own thoughts later today.

UPDATE: Here are some more:


Boycotting SSRN?: Over at The Laboratorium, James Grimmelmann explains why he is no longer posting his papers to the Social Science Research Network (aka, SSRN). "Despite being a system supposedly designed to encourage the spread of scholarship," he writes, SSRN "has made a striking series of decisions that cut against open access."
  I simply do not trust it to put the interests of scholarship ahead of its own. I don’t know what other ugly surprises are lurking ahead, but I’m not eager to find out the hard way. I don’t want my papers held hostage there, and I don’t want to make things any harder on my readers than absolutely necessary. I will not post any more papers to SSRN, and I will not direct readers to my past papers archived there.
  I largely share James's concerns. I'm not quite ready to pull the plug and stop posting to SSRN, but I have certainly thought about it. I'm particularly eager to see if SSRN will end its mandatory watermarking practice, which was introduced as an "experiment" and I hope is a short-lived one.

Wednesday, November 29, 2006


I often find that resumes of students who are looking for jobs as lawyers, judicial clerks, or summer associates note in passing that the person knows Microsoft Office Suite, WordPerfect, LEXIS and WESTLAW, or some such.

I've long thought this sort of entry is a (mild) minus rather than a plus. (1) While knowing these applications is indeed valuable, you're going to be hired for your legal knowledge and not your word processing skills or even your knowledge of LEXIS and WESTLAW. (2) Most applicants are expected to know these things, so if you don't mention them, no-one will assume that you somehow never learned them. (3) More importantly, drawing attention to these lower-status skills subtly draws attention away from your higher-status credentials. (I speak here of the way the world and its pecking orders actually work, not the way they should.)

Am I right, or is this just an idiosyncratic reaction of mine?


Justice Arthur Goldberg Swore His Oath of Office on the Hebrew Bible:

Just thought I'd note that apropos my response to Dennis Prager.

Prager wrote that "for all of American history, Jews elected to public office have taken their oath on the Bible, even though they do not believe in the New Testament," and I realize that a Justice isn't an elected official. Nonetheless, Justices and elected officials are bound by the same oath-or-affirmation provision of the Constitution, and all federal officeholders are equally protected by the Religious Test Clause.


What the Koran Says Vs. What an Individual Muslim Is Likely To Do:

Commenter Cato, on the oaths thread, insists that Carthage must be destroyed, and also writes:

What if your religious book upon which an oath is taken requires the oath taker to lie, at least in certain cases?

Certain pundits maintain that the Koran REQUIRES Muslims to lie to non-Muslims about their intentions, particularly the intention of imposing sharia law.

I can't speak to the relevant text of the Koran, or to what certain pundits mantain. But say that the Koran does indeed say so in the text.

The fact is that many ancient religious writings seem to on their face mandate various things that we'd find quite troubling, and that most modern adherents of the religion would find quite troubling. Consider Leviticus, which says that the following (among others) "shall be surely put to death": "[E]very one that curseth his father or his mother"; adulterers; male homosexuals; and "he that blasphemeth the name of the LORD." Should we disqualify Jews, as well as Christians who purport to still see the Old Testament as largely authoritative, from high government office, on the grounds that they seem committed to massive violations of the First and Eighth Amendments?

Of course not, because we in fact know that even quite devout Jews and Christians don't really read these provisions as in fact mandating the putting to death of people who do the prohibited things. They may have textual reasons for their beliefs or extratextual. But in any case, our experience tells us that looking in isolation at particular passages in a person's holy books -- or considering the practices of extremists who ostensibly belong to the same faith as the person -- gives us little information about the person's actual lived beliefs, and what the person is actually likely to do. It seems to me quite likely that precisely the same is true about Muslims.

If you have reason to think that a particular person is especially likely to lie, that's of course reason to doubt his word, or to vote against him. But looking at some passage in the Koran doesn't tell us much about this.


Religious organizations have no common purpose:

New development in the Georgetown Apostles case -- the D.C. zoning administrator says the Apostles are a "fraternity," not a "religious organization," because (at least as the WaPo reports) the dictionary says a fraternity is "a group associated for a common purpose, interest or pleasure."

I don't know, that reasoning seems pretty bootylicious to me....

Related Posts (on one page):

  1. Religious organizations have no common purpose:
  2. Tax evasion:
  3. The Georgetown "Apostles":

Virginia Appellate Court Sides With Vermont Court in Dispute Over Lesbian's Parental Rights:

The Virginia Court of Appeals issued an opinion yesterday in Miller-Jenkins v. Miller-Jenkins, the case on which the Vermont Supreme Court ruled in August. Here's a brief summary of the facts from the Vermont Supreme Court opinion:

Lisa and Janet lived together in Virginia for several years in the late 1990's. In December 2000, the parties traveled to Vermont and entered into a civil union. In 2001, while Lisa and Janet were still a couple, Lisa began to receive artificial insemination from sperm provided by an anonymous donor. Janet participated in the decision that Lisa become impregnated and helped select the anonymous donor. In April 2002, Lisa gave birth to IMJ, with Janet present in the delivery room. Lisa, Janet, and IMJ lived in Virginia until IMJ was approximately four months old and then moved together to Vermont around August of 2002. The parties lived together with IMJ in Vermont until the fall of 2003, when they decided to separate. After the separation, in September 2003, Lisa moved to Virginia with IMJ.


(1) "On November 24, 2003, Lisa filed a petition to dissolve the civil union in the Vermont family court in Rutland. In her complaint, Lisa listed IMJ as the 'biological or adoptive child[]of the civil union.' Lisa requested that the court award her custodial rights and award Janet parent-child contact. The family court ... on June 17, 2004 ... awarded Lisa temporary legal and physical responsibility for IMJ, and awarded Janet [visitation and a right to daily telephone contact] ...."

(2) After Lisa eventually started denying Janet her visitation and contact rights, a Virginia court in which Lisa filed an action to establish IMJ's parentage backed her up, holding that "any claims of Janet to parental status were 'based on rights under Vermont's civil union laws that are null and void under Va. Code § 20-45.3,'" that Lisa was the "sole biological and natural parent," and that Janet had no "claims of parentage or visitation rights over" IMJ.

(3) The Vermont court, on the other hand, found Lisa guilty of contempt of court for violating the Vermont order, and refused to adhere to the Virginia order (which was issued after the initial Vermont order).

(4) The Vermont Supreme Court upheld the Vermont court's ruling.


(5) The Virginia Court of Appeals sided with the Vermont courts, and concluded that "the PKPA [Parental Kidnapping Prevention Act] prevented [the Virginia court's] exercise of jurisdiction and required it to give full faith and credit to the custody and visitation orders of the Vermont court." It also agreed with the Vermont Supreme Court that the Defense of Marriage Act doesn't preclude the Vermont order:

DOMA allows a state to deny recognition to same-sex marriage entered into in another state. This case does not place before us the question whether Virginia recognizes the civil union entered into by the parties in Vermont. Rather, the only question before us is whether, considering the PKPA, Virginia can deny full faith and credit to the orders of the Vermont court regarding IMJ's custody and visitation. It cannot. The law of Vermont granted the Vermont court jurisdiction to render those decisions. By filing her complaint in Vermont, Lisa invoked the jurisdiction of the Vermont court. She placed herself and the child before that court and laid before it the assertions and prayers that formed the bases of its orders. By operation of the PKPA, her choice of forum precluded the courts of this Commonwealth from entertaining countervailing assertions and prayers.

Related Posts (on one page):

  1. Virginia Appellate Court Sides With Vermont Court in Dispute Over Lesbian's Parental Rights:
  2. Conflict Between Vermont Courts and Virginia Courts in Dispute Over Lesbian's Parental Rights:

Multiculturalism, Dennis Prager, Keith Ellison, and Me:

I criticize Dennis Prager's Tuesday column in today's National Review Online. Here's the introduction:

The U.S. Constitution is a multiculturalist document. Not in all senses, of course: It tries to forge a common national culture as well as tolerating other cultures. But it is indeed multiculturalist in important ways. We shouldn’t forget that when we’re tempted to categorically condemn supposedly multiculturalist changes to our constitutional practices.

Consider what Dennis Prager — whose work I often much like -— wrote in his most recent column:

Keith Ellison, D-Minn., the first Muslim elected to the United States Congress, has announced that he will not take his oath of office on the Bible, but on the bible of Islam, the Koran.

He should not be allowed to do so — not because of any American hostility to the Koran, but because the act undermines American civilization.

First, it is an act of hubris that perfectly exemplifies multiculturalist activism — my culture trumps America’s culture. What Ellison and his Muslim and leftist supporters are saying is that it is of no consequence what America holds as its holiest book; all that matters is what any individual holds to be his holiest book.

Forgive me, but America should not give a hoot what Keith Ellison’s favorite book is. Insofar as a member of Congress taking an oath to serve America and uphold its values is concerned, America is interested in only one book, the Bible. If you are incapable of taking an oath on that book, don’t serve in Congress. In your personal life, we will fight for your right to prefer any other book. We will even fight for your right to publish cartoons mocking our Bible. But, Mr. Ellison, America, not you, decides on what book its public servants take their oath.

This argument both mistakes the purpose of the oath, and misunderstands the Constitution. In fact, it calls for the violation of some of the Constitution’s multiculturalist provisions....

To read the rest, go here.

Thanks to my UCLA colleague Stephen Bainbridge, who alerted me to Prager's column and who has written more along these lines.


Early Reax to Mass v. EPA Argument:

Here is the AP's initial write-up, and Lyle Denniston has this early analysis on SCOTUSBlog. The AP reports Justice Alito and Chief Justice Roberts seemed particularly hostile to the petitioning states' arguments. Denniston concurs, and suggests that Justice Kennedy's vote will likely determine whether the petitioners have standing. Now it's time for the Georgetown program on C-Span. More later . . .

UPDATE: The Georgetown event is worth a watch. I was not at the oral argument, and have not yet read the transcript, but I have a few thoughts in response to the panel. First, I agree with the panelists (and Lyle Denniston) that the standing issue is likely to split the Court, and that Justice Kennedy is likely to control this issue. Recall that he wrote the controlling concurrence that narrowed Justice Scalia's majority opinion in Lujan v. Defenders of Wildlife.

Second, I think that the Brown & Williamson argument is stronger than most of the Georgetown panelists. For nearly thirty years, Congress has acted as if the Clean Air Act does not grant EPA any authority to regulate greenhouse gases as such. Until the Clinton Administration, this was the unbroken approach of the EPA as well (as well as the opinion of prominent Clean Air Act experts). Two EPA general counsels, Jonathan Cannon and Gary Guzy, wrote memos to the contrary, but the Bush Administration's conclusion that the EPA lacks such authority was the first time the agency expressed a view as part of a notice-and-comment rulemaking. The Cannon and Guzy memos, by contrast, were written in response to Congressional inquiries (and Congress responded with appropriations riders barring the use of any funds to regulate greenhouse gases). Further, the overall structure of the Clean Air Act is a poor fit with greenhouse gas regulation. By this, I do not mean simply that it would be "inefficient," but that it would not work. Certain provisions that could be triggered by a finding that greenhouse gases are pollutants under the Act make no sense if applied to globally dispersed pollutants with global effects. In sum, if the FDA did not have the authority to regulate tobacco, as the Court found in Brown & Williamson, I think there is a strong argument that the EPA lacks the authority.

As I've noted before, I think the petitioners are on much stronger ground when they argue that, if the EPA has authority to regulate greenhouse gases, it did not decline to regulate in a permissible fashion. As several of the Georgetown panelists argued, the EPA is not allowed to argue, as it did, that it declined to find that greenhouse gases can be reasonably anticipated to harm public health (the "endangerment" finding) because it does not wish to adopt the climate policies that the Clean Air Act would then require. The way the law is written, if the EPA concludes that greenhouse gases can be "reasonably anticipated" to have a given effect, they must initiate regulatory action.

One way for the EPA to win this portion of the argument is for the Court to conclude that the EPA should be given more leeway in declining to act on a petition filed with the agency, but I still think this argument is hard to square with the arguments EPA provided in the Federal Register. Moreover, the EPA's refusal to find "endangerment" is also difficult to defend given other things that the EPA and other agencies have done and said on climate change. Thus, even if the petitioners win a narrow victory, and the issue is sent back to the EPA for another try, the EPA would have a difficult time sustaining its refusal to regulate on remand.

I'll have more once I've read the transcript.


A Lame Defense of the Opposition to Professor Delahunty:

As co-blogger Jonathan reports, nine members of the University of Minnesota Law School faculty have signed a letter criticizing the law school's decision to hire Professor Delahunty to teach constitutional law as a visiting professor for one semester. Here is a representative excerpt of what they say [I rearranged the ordering of the pargraphs, but that doesn't affect the substance]:

[W]e believe that is necessary for us to disassociate ourselves from the decision of the Co-Deans of the University of Minnesota Law School to hire Robert Delahunty to teach Constitutional Law for the Spring term of 2007. We believe that in making the decision in this particular case the Co-Deans had been unaware of the grave institutional implications of hiring Mr. Delahunty and we call on them to rectify the situation. We can only assume that the Law School would not have hired Enron officials to teach accounting to our students. Nor should we hire, even if on a temporary basis, a lawyer so directly implicated in what many in the international community regard as war crimes....

In connection with his government service, and entirely outside any academic function, Mr. Delahanuty co-authored a secret (but later leaked) memo with John Yoo, in which they concluded that the "neither the federal War Crimes Act nor the Geneva Conventions would apply to the detention conditions in Guantanamo Bay, Cuba, or to trial by military commission of al Qaeda or Taliban prisoners. We also conclude that customary international law has no binding legal effect on either the President or the military because it is not federal law, as recognized by the Constitution." The memo also concluded that U.S. soldiers could not be tried for violations of the laws of war in Afghanistan because such international laws had "no binding legal effect on either the President or the military."

This memo, part of the now notorious "Torture Memos," facilitated the eventual torture of detainees not only in Guantanamo but in Abu Ghraib and elsewhere. The Delahunty-Yoo memo gave the US Administration and its agents the legal blanket to conduct such acts, which are in clear violation of international law, with virtual impunity....

We thus call on our Co-Deans to reconsider their decision to hire Mr. Delahunty as a temporary hire to teach constitutional law at the University of Minnesota Law School and to accommodate students who may have concerns about taking a mandatory course from such an individual.

Thus, in essence, the professors in question are calling for Professor Delahunty to be blackballed not just from Minnesota but from the legal academy; assumedly, the same objections they have to him teaching at Minnesota would apply to any self-respecting law school; one would assume that no such law school would hire "Enron officials" to teach accounting.

And what did Delahunty do to deserve this obloquy? Despite the rhetoric of his being "directly implicated in what many in the international community regard as war crimes," and the implication that he engaged in illegal activities like the Enron accountants, what he did was give his employer, the President of the United States, legal advice. The professors present no evidence that Delahunty's advice was not the sincere expression of his legal analysis of the relevant issues. So let's (safely) assume that Delahunty was indeed sincere. He is asked by the President to advise him on whether various treaties, statutes, and international customary law apply to conflicts with a non-governmental actor such as Al Qaeda, and whether the president may in any event have certain inherent constitutional powers regardless. He concludes that the statutes, treaties, etc., don't apply, and the president has a rather free hand. What is he supposed to do at that point? Give what he deems to be inaccurate, but politically correct, advice to the President? Wouldn't that be a gross violation of his professional obligations, and professional ethics? Very strange that the authors of the letter should claim that their opposition to Delahunty is grounded in "legal ethics." Is it ethical to give what you think is bad legal advice to your client?

The letter adds "that in Hamdan v. Rumsfeld, the U.S. Supreme Court rejected the conclusions of the Yoo-Delahunty memo and relied on the Geneva Conventions, in holding that the procedures adopted by the military commission for trying Al Qaeda and Taliban detainees did not meet the requirements of international law." That's a bit of a distortion, because, as I recall, the Court actually held that the UCMJ, a statute, was meant to incorporate the protections of the Conventions for such detainees, not that the Geneva Conventions themselves were necessarily otherwise binding and self-executing in these circumstances. But in any event, there were three dissenting Justices in Hamdan, and there would have been four if Chief Justice Roberts had not had to recuse himself. This should make it rather clear that Delahunty's views were well within the realm of a reasonable interpretation of the legal sources before him. Or are Justices Thomas, Alito, Scalia, and Roberts all to be considered "directly implicated in what many in the international community regard as war crimes," and have no moral standing above Enron officials?

It should be rather obvious that law schools should not have a policy of refraining from hiring individuals whose views on international law happen to not coincide with what "many in the international community" happen to believe, regardless of whether those views were expressed in academic journals, in blog posts, or (and perhaps especially) in serving one's client while in government service. And indeed, the professors' letter [or, more precisely, the remedies for Delahunty's secular heresy advocated in the letter] arguably violates the University of Minnesota's own policy on academic freedom, which states that "Academic Freedom is the freedom to discuss all relevant matters in the classroom, to explore all avenues of scholarship, research and creative expression and to speak or write as a public citizen without institutional discipline or restraint."

Unfortunately, Delahunty's situation is not unique; from the scuttlebut I've heard, at least one "guru" of international law has explicitly based his opposition to faculty candidates at other law schools (at least when asked) on his/her distaste for their "conservative" perspective. The willingness, nay, eagerness, of some law professors to excommunicate any legal scholar who dissents from the conventional wisdom (at least among academics) regarding the scope of Executive Power in the War on Terror, and the role international customary and treaty law should play in domestic constitutional and statutory interpretation, is troubling indeed.

UPDATE: Note that Delahunty is not being attacked for the "torture memos," but for one particular memo he co-authored with John Yoo, arguing about whether the U.S. is obligated to give not state actors like Al Qaeda the same protections as members of a foreign state's military. The memo can be found here. I think anyone who reads this memo and concludes that the Yoo-Delahunty position is so clearly mistaken that it's facial proof of bad faith or incompetence (as some commenters have suggested) is reading it with a jaundiced eye. I tend to be skeptical of OLC opinions myself, because the Office seems to me to generally be trying to present the best legal arguments for what the president wants to do, rather than giving fully objective legal advice (and so I've been told by OLC alums). But (a) I don't expect career civil servants asked to help out on a case to follow that philosophy; (b) arguing that this is unethical would mean that law schools should never hire any OLC alums, at least if they worked on opinions related to foreign policy (what exactly was the LEGAL justification for attacking Serbia and killing hundreds of Serbians?, or for invading Haiti? or Panama?--all more serious, IMHO, than, e.g., the precise form of tribunal facing Al Qaeda detainees); and (c) the Yoo-Delahunty position received substantial support in the D.C. Circuit and the Supreme Court, suggesting that these were indeed serious arguments. And, as a commenter on another thread notes, the memorandum at issue states: "We conclude that these treaties do not protect members of the al Qaeda organization, which as a non-State actor cannot be a party to the international agreements governing war. We further conclude that that these treaties do not apply to the Ta1ian militia. This memorandum expresses no view as to whether the President should decide, as a matter of policy, that the U.S. Armed Forces should adhere to the standards of conduct in those treaties with respect to the treatment of prisoners."


Students Protest Hiring OLC Alum:

Inside Higher Education reports that a group of students and professors at the University of Minnesota Law is upset that University of St. Thomas professor Robert Delahunty is scheduled to teach at Minnesota next semester. Their objections center on Delahunty's tenure at the Office of Legal Counsel, where he was a career civil servant. At OLC, Delahunty participated in drafting controversial memos relating to torture and the treatment of detainees.

“He’s prominent for all the wrong reasons,” said Jon Taylor, a first year law student at Minnesota who has been circulating a petition asking the law school’s dean to reconsider the hire. “I don’t think this is what we’re paying for at a top 20 law program." The law school has about 800 students, and Taylor said that he has gathered close to 70 signatures and expects to reach 100 by Friday.

The controversy stems from a memorandum drafted in 2002 by Delahunty and a Justice Department colleague, John Yoo, a conservative scholar and professor of law at the University of California at Berkeley’s Boalt Hall. Drafted shortly after 9/11, the memo concluded that the Geneva Convention did not cover al-Qaeda suspects captured in Afghanistan, and helped lay the foundation for the Bush administration’s handling of prisoners captured during the war on terror.

Inside Higher Ed also notes that the plan to hire Delhunty has divided the Minnesota faculty. A story in the Minnesota Daily quoted Associate Dean Michael Paulsen in support of Delahunty's visit.

"Robert Delahunty is one of the nation's leading constitutional and international law scholars," Paulsen said. "He's an outstanding teacher."

Some of the controversy comes from a misunderstanding of the facts, Paulsen said. Most likely, many students are not familiar with Delahunty's memo.

Paulsen also said the protests are coming from a few extreme individuals in the Law School.

"That's a gross violation of academic ethics and academic freedom," he said. . . .

"It sometimes happens that even professors are not respecters of academic freedom and get their facts wrong, too," he said.

Nine members of the faculty responded to the plans to hire Delahunty and Paulsen's comments with this letter, concluding:

Our opposition to the hiring of Mr. Delahunty has got absolutely nothing to do with academic freedom but all to do with legal ethics. Mr. Delahunty's role in the Torture memos was not academic and we object to hiring someone of his credentials rather than to anything that he may say in class should he be so hired or concerns about his scholarly research or academic work.

We thus call on our Co-Deans to reconsider their decision to hire Mr. Delahunty as a temporary hire to teach constitutional law at the University of Minnesota Law School and to accomodate students who may have concerns about taking a mandatory course from such an individual.

The student petition organizers explained their opposition in these terms to the Minn. Daily:

"It doesn't have anything to do with academics; we hear he's a fine teacher," Taylor said. "It has more to do with ideology."

Taylor said students and staff were uninformed about the decision, and those active in human rights immediately recognized the name because "amongst human rights violators, he's a pretty prominent leader."

Interestingly enough, the class Delahunty is scheduled to teach is one normally taught by co-conspirator Dale Carpenter.

UPDATE: UMinn law student Ivan Ludmer offered these thoughts on the petition at Joint Strike Weasel. I've also learned that St. Thomas' decision to hire Delahunty was criticized as well.

On the issue of Delahunty's role at OLC, here is what John Yoo wrote about Delahunty in War by Other Means: An Insider's Account of the War on Terror:

When the question of the application of the Geneva Conventions came to OLC, I asked Robert Delahunty to help me with the initial research and drafting of the opinion. Delahunty was one of the three career lawyers in the office who had risen to the level of the Senior Executive Service, the top crust of the civil service. A man in his early fifties, Delahunty had a large white beard, a mane of white hair, a round jovial face, and a hint of an English accent--he often reminded me of a kindly Saint Nick. He had first gone to England to study Greek and Roman philosophy and history, eventually becoming a tenured faculty member at a British university, left to go to Harvard Law School, and joined the Justice Department in the late 1980s. He had drafted many of OLC's opinions on war powers, foreign policy, and presidential-congressional relations under the first Bush and Clinton administrations. He had an encyclopedic knowledge notjust of the law and academic works, but of the real lifeblood of international law--the examples of state practice. To my mind, Delahunty was the very model of the career civil servant who applies his or her long years of experience and knowledge to the benefit of the American people.
As far as I am aware, this is the only discussion of Delahunty in the entire book. In his subsequent discussion of the infamous "torture memos," Yoo does not detail the nature or extent of Delahunty's role.


Quick Take on Mass v. EPA:

This morning I have the "opposing view" column in USA Today arguing that the Court should reject the petitioners' arguments in Massachusetts v. EPA. The editors take the contrary position here. [As an aside, it was quite a challenge to say something meaningful about the case in 350 words. Simplifying the issues is one way to reduce the word count, at the risk of losing precision.]

I will have more to say on the case after today's oral argument, as will others. Today at 12:15, the Georgetown Law Supreme Court Institute and the Georgetown Environmental Law & Policy Institute are sponsoring a high-powered panel to review and analyze the arguments. Participants include Georgetown's own Richard Lazarus and Lisa Heinzerling (the latter of whom wrote the petititoners' primary brief), former EPA general counsel E. Donald Elliott, and Hunton & Williams' Norman Fichthorn, who represented the Utility Air Regulatory Group in the case. The event will be webcast at the link above, and is also scheduled to be broadcast live on C-Span.


Does the Rehabilitation Act Require the Redesign of Federal Currency to Help the Visually Impaired?: Today Judge Robertson of the United States District Court in D.C. ordered the Treasury to redesign federal currency so it can be more easily handled by the blind and visually impaired. (lvHB) I have no background in the relevant area of law, but I thought I would take a quick look at the legal issues. My tentative conclusion: Judge Roberston's opinion doesn't strike me as persuasive.

  The relevant statute is the Rehabilitation Act of 1973, and particular Section 504, codified at 29 U.S.C. 794:
No otherwise qualified individual with a disability in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
  In an opinion by Justice Marshall in Alexander v. Choate, 496 U.S. 287 (1985), the Supreme Court interpreted this to "require[] that an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers." (emphasis added).

  The crux of Judge Robertson's opinion is that designing currency without special accomodations to the visually impaired denies them "meaningful acceess" to the benefit of currency:
[B]lind or visually impaired people cannot make effective use of American currency without help. There was a time when disabled people had no choice but to ask for help – to rely on the "kindness of strangers." It was thought to be their lot. Blind people had to ask strangers to push elevator buttons for them. People in wheelchairs needed Boy Scouts to help them over curbs and up stairs. We have evolved, however, and Congress has made our evolution official, by enacting the Rehabilitation Act, whose stated purpose is "to empower individuals with disabilities to maximize employment, economic self-sufficiency, independence, and inclusion and integration into society." 29 U.S.C. § 701(b)(emphasis added). It can no longer be successfully argued that a blind person has "meaningful access" to currency if she cannot accurately identify paper money without assistance.
  I am totally and completely new to this area, so maybe my take is way off. But Judge Robertson's analysis doesn't seem right to me. The Supreme Court's decision in Choate requires that the government program must provide "meaningful access to the benefit that the grantee offers," not meaningful use of any benefit that originated with the grantee. Going back to the statutory text, the question is whether the disabled person is "denied the benefits of" the federal program. But the visually impaired are not denied the benefits of federal currency, and are not denied meaningful access to currency. They can obtain currency like anyone else, and they can spend it like anyone else. Rather, their use of the currency that is provided under a federal program is more difficult for them than for people with sight. This may be troubling as a policy matter; changing the currency to help the blind may be a good idea. But it's not clear to me that it is needed to give visually impaired persons "meaningful access" to currency.

  Judge Robertson notes one case that seems at least somewhat on his side. He explains:
In United States v. Board of Trustees for University of Alabama, 908 F.2d 740 (11th Cir. 1990), federal regulations requiring the provision of sign-language interpreters for the hearing impaired were upheld, because, "in the case of a deaf student . . . all access to the benefit of some courses is eliminated when no signlanguage interpreter is present." Id. at 748.
  I agree that this case is at least somewhat analogous. Providing sign-language interpreters so deaf students can understand classes is something like providing mechanisms on currency to permit visually impaired individuals to identify currency. At the same time, I think there may be two relevant differences. First, it's unclear from the the 11th Circuit decision whether that court was giving this issue de novo review or Chevron deference. Second, a deaf person who has no interpreter and can't effectively read lips can't actually receive the communication of the class that are the government benefit. Access is effectively denied: The benefit is the class's communication of ideas, and a hearing-impaired student doesn't get that at all without an interpreter. In contrast, the visually impaired person still can obtain currency; he still has access to it. What he lacks is the ability to use the currency and manipulate it as effectively as a person with good vision. This is certainly unfortunate; as I mention above, it may be a good idea to change the currency for that reason. But I'm not sure that this means that the visually impaired person lacks "meaningful access" to the currency.

  Have I missed the legal boat? Am I placing too much emphasis on the distinction between "access" and "use," or on the definition of the government's "benefit"? I look forward to your comments.

Tuesday, November 28, 2006

Federal Subsidies to State and Local Governments and the Militarization of Police:

The widespread use of aggressive no-knock police raids - often criticized here and in Radley Balko's important study - is just part of a broader trend towards the militarization of police departments over the last forty years. In this recent column, law professor Glenn Reynolds (AKA - Instapundit) summarizes some of the negative effects. For me, as a student of federalism, it was interesting to learn that the militarization of police forces was in large part stimulated by federal subsidies to state governments:

Abetting this trend was the federal government’s willingness to make surplus military equipment available to police and sheriffs’ departments. All sorts of hardware is available, from M-16s to body armor to armored personnel carriers and even helicopters. Lots of police departments grabbed the gear and started SWAT teams, even if they had no real need for them. The materiel was free, and it was fun. I don’t blame the police. Heck, if somebody gave me a Bradley Fighting Vehicle to play with, I’d probably start a SWAT team, too—so long as I didn’t have to foot the maintenance bill.

These in-kind federal subsidies in reduce the cost of militarization for police. They also make militarized policing more attractive relative to traditional policing (which does not receive comparable equipment subsidies).

I have repeatedly criticized federal subsidization of state and local governments in much of my academic work, particularly Closing the Pandora’s Box of Federalism: The Case for Judicial Restriction of Federal Subsidies to State Governments, 90 Georgetown Law Journal 461 (2002) (unfortunately not available online to those without Lexis or Westlaw access), and this 2004 article coauthored with John McGinnis. Among the predictable results of federal subsidies to the states are the growth of state public services whose costs (borne in large part by out of state taxpayers) exceed their benefits, and the distortion of local and state government spending priorities by federal mandates. In this case, there is no federal mandate, but local governments end up overmilitarizing their police forces because military-style police equipment is virtually a free good for local governments in cases where it can be acquired for free from the feds, or at prices far below market rates. Once a SWAT team or other paramilitary police unit is established, basic public choice theory suggests that it will become an influential lobby for its own perpetuation or expansion - even if less aggressive police tactics are in fact preferable.

I do not have an easy solution for the general problem of overmilitarized policing. But there is a simple fix for this part of it: the federal government should not provide free or discounted military equipment to state and local police. It should charge market prices for any equipment transferred from the military to local and state governments. Some police forces will still overmilitarize, but the incentive to do so will be reduced if state and local governments have to pay the full cost of militarization.

UPDATE: Radley Balko has more info on the ways in which federal government policy contributes to the militarization of police forces in this new post. Here's a small excerpt:

Taking taxpayer-funded equipment originally bought and designed for use on a foreign aggressor and giving it to local police departments for use against American citizens is a rather egregious violation of the principles of federalism. Literally millions of pieces of military equipment have been transfered from DoD to Mayberry.

I was floored while researching Overkill when, to give just one example, I read about how a sheriff in a rural county in Florida managed to assemble his own air force -- helicopters and private jets -- courtesy of the Pentagon. There are equally shocking examples from all over the country. It would be nice if Congress would enact legislation to end this program. That isn't federal meddling. It's ending an existing, ill-advised federal program.

Related Posts (on one page):

  1. Federal Subsidies to State and Local Governments and the Militarization of Police:
  2. Are the Warrant Documents Released in the Atlanta Case Forgeries?:

Did the medieval English speak French?

This article in Leeds Today, on the forgotten St. Edmund, says they did:

In the wake of the Norman Conquest of 1066, everything connected to the English nation and its culture were suppressed – especially the language, literature, and flags. French became the language of everyday life. . . . [N]ot until the reign of Henry VIII was it in more general use across the country.

This is clearly false, as any medieval English literature textbook will suggest — it's all about The Owl and the Nightingale, King Horn, Chaucer, Gower, Langland, Sir Gawain and the Green Knight, Margery Kempe, Richard Rolle, Malory, etc., etc., etc. — all works in English, not French. O.K., so it doesn't answer the question to refer you to a Middle English handbook — where are all the literature-of-England-in-French handbooks? Still, the point is that this is popular literature.

Moreover, from the medieval experts over at Wikipedia, we see (oomphasis added):

Middle English was one of the five languages current in England. Though never the language of the Roman Catholic Church, which was always Latin, it lost status as a language of courtly life, literature and documentation, being largely supplanted by Anglo-Norman French. It remained, though, the spoken language of the majority, and may be regarded as the only true vernacular language of most English people after about the mid-12th century, with Anglo-Norman becoming, like Latin, a learned tongue of the court. Welsh and Cornish were also used as spoken vernaculars in the far west.

English did not cease to be used in the court: it retained a cartulary function (being the language used in royal charters); nor did it disappear as a language of literary production. Even during what has been called the 'lost' period of English literary history, the late 11th to mid-12th century, Old English texts, especially homilies, saints' lives and grammatical texts, continued to be copied, used and adapted by scribes. From the later 12th and 13th century there survive huge amounts of written material of various forms, from lyrics to saints' lives, devotional manuals to histories, encyclopaedias to poems of moral (and often immoral) discussion and debate, though much of this material remains unstudied, in part because it evades or defies modern, arguably quite restricted, categorisations of literature.

Middle English is more familiar to us as the language of Ricardian Poetry and its followers, the 14th- and 15th-century literature cultures clustered around the West Midlands and around London and East Anglia. This includes the works of William Langland, the Gawain Poet, Geoffrey Chaucer, Lydgate, Gower, Malory, Caxton, and Hoccleve. Perhaps best known, of course, is Chaucer himself in his Canterbury Tales and other shorter poems, where the poet consistently revalues and reinvents older traditions while managing to avoid completely abandoning them.

Later on, the article explains how Norman French influenced English grammar, for instance playing a part in helping English shed its inflected forms. Even so, it says, this change "cannot be attributed simply to the influence of French-speaking layers of the population. English remained, after all, the language of the majority."

Just another reminder that you should beware of what you read in the popular press. (And this is something that it doesn't take that much knowledge to realize is wrong: The regular folks in the whole country started speaking the language of aristocrats? And went back to the previous language 500 years later?) To his credit, the author very graciously admitted his inexpertise.


OED's word of the day

is bootylicious, first documented in 1994. Now I understand meaning #2, "Esp. of a woman, often with reference to the buttocks: sexually attractive, sexy; shapely." But what about meaning #1: "Of rap lyrics: bad, weak. rare"? Is it really an insult for a rapper to tell another rapper that his rhymes were bootylicious? The statements it gives in context seem ambiguous to me. Can someone who knows something about rap clue me in on this?


Canadian University Womyn's Centre Trying To Exclude Pro-Life Groups

from funding and space generally available to other student groups. The university student association vice-president for student services agrees; so does a student association vice-president at another Canadian school.

Anti-abortion speech, the theory goes, is "gender-discriminatory," and debate about abortion upsets some women because it "happen[s] in a space that they thought they were safe and protected, and that respected their rights and freedoms." So reports the A student newspaper at Carleton University in Ottawa:

Sparks flew during question period at a Nov. 21 Carleton University Students’ Association (CUSA) council meeting after a motion that would prevent pro-life groups from assembling on CUSA space was tabled.

The motion -— moved by Katy McIntyre, CUSA vice-president (student services), on behalf of the Womyn’s Centre -— would amend the campus discrimination policy to state that “no CUSA resources, space, recognition or funding be allocated for anti-choice purposes.” ...

According to McIntyre, anti-choice groups are gender-discriminatory and violate CUSA’s safe space practices.

The motion focuses on anti-choice groups because they aim to abolish freedom of choice by criminalizing abortion. McIntyre said this discriminates against women, and that it violates the Canadian Constitution by removing a woman’s right to “life, liberty and security” of person....

McIntyre said she received complaints after Lifeline organized an academic debate on whether or not elective abortion should be made illegal.

“[These women] were upset the debate was happening on campus in a space that they thought they were safe and protected, and that respected their rights and freedoms,” said McIntyre....

Julien de Bellefeuille, Student Federation of the University of Ottawa vice-president (university affairs), said that although his student association does not currently have any policies regulating anti-choice groups, he said the motion is a good idea and something that his school should adopt as well.

CUSA's motion will be formally debated at their next council meeting Dec. 5, during which council will vote to pass the motion....

The newspaper also reported that student organization officials at other schools do not share Ms. McIntyre's and Mr. Bellefeuille's views.

Thanks to Rich Poupard for the pointer.

Related Posts (on one page):

  1. Pro-Life Speech Excluded from General Funding Program at Carleton University (Ontario):
  2. Canadian University Womyn's Centre Trying To Exclude Pro-Life Groups

Justice Breyer's Question: Of all the current Supreme Court Justices, the Justice with the most distinctive style of asking a question is Justice Stephen Breyer. From the transcript of oral argument this morning in a patent case, KSR International v. Teleflex:
JUSTICE BREYER: I can understand, I think, what a teaching is. I take it a teaching is you put all the prior art — that's what I guess that's what Judge Rich explained, which I thought was very enlightening to me in I can't remember the name of the case, Wigmore, Winsmore [ . . .. ] Winslow. You put it all around the room. All right, we've got it all around the room, and I begin to look at it and if I see over that it somehow teaches me to combine these two things, if it says, Breyer, combine this and that, that's a teaching and then it's obvious. Now, maybe it doesn't have the teaching, it just has the suggestion. Maybe it says, we suggest you combine this or that; okay, then it's obvious. But I don't understand, though I've read it about 15 or 20 times now, it though I've read it about 15 or 20 times now, I just don't understand what is meant by the term "motivation."
Classic (although I assume that the repeat of the "15 or 20 times now" phrase is an error in the transcript).

Wealth Without Markets?: Lior Strahilevitz has just posted a really terrific review of Yochai Benkler's new book; Lior's review, Wealth Without Markets?, is forthcoming in the Yale Law Journal. The review is engaging and helpful for a few reasons, but one of them is that Benkler's work can be difficult to follow; a lot of readers have a hard time with it. Strahilevitz provides an accessible summary of Benkler's argument, and then offers a very interesting (and I think persuasive) critique of Benkler's claims.

  From the Introduction:
  In June of 2006, Texas Governor Rick Perry announced a $5 million plan to install night-vision equipped web cams along the state's border with Mexico and launch a web site that would allow virtual minutemen to monitor portions of the border from their homes and workplaces. The web site would provide a toll-free hotline allowing people around the country to notify law enforcement personnel if they spotted suspected illegal immigrants on their computer screens.
  Around the same time, something subtly related happened. Internet blog posters began bemoaning a frightening new phenomenon on Skype, the increasingly successful Voice over Internet Protocol (VoIP) service that allows its users to make free long distance calls to other Skype members across the globe. The phenomenon was telemarketing, and blog commenters began discussing the obvious solution to the problem: setting one's Skype preferences so that the user would only receive calls from a pre-approved list of callers known to the Skype user.
  Both these stories emerged roughly contemporaneously with the appearance of Yochai Benkler’s important and influential book, The Wealth of Networks: How Social Production Transforms Markets and Freedom. That seems appropriate, because the two stories offer the beginnings of a rebuttal to Benkler's eloquent opening argument about the ways in which nonmarket production is transforming our economic and political systems. Benkler tells us that "social production" will make us freer, richer, and happier unless our pesky lawmakers get in its way. But some of the events that accompanied the publication of his book, along with events that preceded it, suggest that law may be the least of social production's worries.
  In this Book Review, I will scrutinize Benkler's claims that social production is transforming our world. Along the way, I will highlight the dangers that social production inevitably faces. Some of these dangers stem from legal rules and interventions, as Benkler anticipates. But basic economic forces and social trends pose far greater threats to the flourishing of communications technology-aided social production. Finally, I will challenge Benkler’s most striking and ambitious claim, his conclusion that social production will lessen the gap between rich and poor.
Good stuff, I think. And don't miss footnote 42.

Something's Terribly Wrong with University Admissions, Judging by This Story:

Liming Luo is a high school senior who is both a math prodigy and received a perfect 2,400 score on her SATs. New York Magazine asked Katherine Cohen, CEO and founder of IvyWise, a school-admissions consulting company, about her [and other students'] prospects for admission to MIT, the college of her choice. The answer:

Her perfect SAT score is truly outstanding but not a free ticket. She is applying to many technical colleges, so she will be competing against a lot of other high-achieving math/science kids (and a lot of other Asian students in particular). While she may be admitted to MIT early, I am not convinced she’s a shoo-in—I’d want to see more evidence that she’s giving back to the community.

Why should Ms. Luo be competing with "other Asian students in particular" as opposed to just "other students?" What does the fact that she's "Asian" have to do with anything? [I understand that this is just Ms. Cohen's opinion, but given that she's paid to read the minds of admissions officers, I think it's same to assume her view reflects their views.] Is there any other industry in the United States, other than higher education, where it would not be scandalous to suggest that one's opportunities will be limited because of one's "Asian" background?

Even for "diversity" fans, why is the category "Asian" relevant? What do Fillipinos, Hmong, Vietnamese, Chinese, Japanese, Indians, Pakistanis [note: coincidentally, I recently picked up a magazine for Indian-Americans, which had an article expressing concern that Indians and other South Asians were being denied admission to prestigious universities for fear the universities would be "too Asian"] and so on have in common? Not religion, not culture, not even "race." There is incredible diversity within the "Asian" population, and the idea that the various subgroups are fungible would be considered the height of Eurocentric arrogance, but for the fact that it's the folks who are most likely to accuse others of Eurocentric arrogance who are behind such ideas.

Beyond the Asian issues, what sense does it make to require Ms. Luo to show that she's "giving back to the community?" She's a math genius, and has a perfect score on her SATs. Her name suggests that she is likely the child of immigrants, maybe an immigrant herself. She has a fair number of extracurriculars, but likely is focusing on developing her academic skills. She'll be giving back by creating wealth and knowledge when she invents the next Google, works on a cure for cancer, wins the Nobel Prize in Chemistry, or becomes a prominent investment banker. And some of those careers will allow her, if she chooses, to donate substantial sums to charity. But what's she supposed to be doing now, neglecting her intellectual pursuits and instead volunteering at a soup kitchen every Sunday? That's a very nice and praiseworthy thing to do, of course, but it would hardly be the most efficient use of her time and talents, and should have nothing to do with whether she's admitted to the school of her choice. The idea that Ms. Luo may not be worthy of admission because she hasn't proven herself sufficiently altruistic is the kind of thing that makes Objectivism look almost reasonable.

UPDATE: Some commenters seem to think that this post suggests that Ms. Luo is "entitled" to admission at MIT because of her test scores. I said no such things. I rather suggested that she should be judged based on her achievements and potential and not (a) whether there are "too many" other "Asians" with a similar admissions profile in the pool; and (b) whether she "has given back to to the community"--the relevance of her test scores is that clearly someone with her abilities is likely to benefit the community more in the long-run by honing her academic and other abilities than by spending time on "community service" for which she has no particular aptitude or interest. Ms. Cohen is looking for evidence that Ms. Luo is demonstratively altruistic, which I don't think should be an admissions criterion (and even if it was a good criterion for admission, it's much too easy to fake, with the advice and aid of consultants such as Ms. Cohen, and for that matter gives an unfair advantage to rich kids, who could afford to be demonstratively altruistic because they don't need part-time jobs, to babysit their siblings, etc.).

Related Posts (on one page):

  1. Something's Terribly Wrong with University Admissions, Judging by This Story:
  2. California Universities "Fill[ing] Their Entire Freshman Classes With Nothing But Asian Americans":

It Is Their Care in All the Ages

to take the buffet and cushion the shock. It is their care that the gear engages; it is their care that the switches lock.

My post about the romance of engineering reminded me of one of my favorite poems, The Sons of Martha. I'd blogged about it in 2002 and again in 2004, so I figured that it was time to do it again, both for its substance and for a reminder that great poetry can be written about many subjects.

The poem is a reference to -- and in some ways a criticism of -- a passage from Luke, chapter 10, verses 38-42:

[38] Now it came to pass, as they went, that he entered into a certain village: and a certain woman named Martha received him into her house.

[39] And she had a sister called Mary, which also sat at Jesus' feet, and heard his word.

[40] But Martha was cumbered about much serving, and came to him, and said, Lord, dost thou not care that my sister hath left me to serve alone? bid her therefore that she help me.

[41] And Jesus answered and said unto her, Martha, Martha, thou art careful and troubled about many things:

[42] But one thing is needful: and Mary hath chosen that good part, which shall not be taken away from her.

The word "careful," of course, means "full of care." Here then is the poem; oddly enough, my favorite parts are the first two lines of each stanza (except the last), but of course you have to read it all:

The Sons of Mary seldom bother, for they have inherited that good part;
But the Sons of Martha favour their Mother of the careful soul and the troubled heart.
And because she lost her temper once, and because she was rude to the Lord her Guest,
Her Sons must wait upon Mary's Sons, world without end, reprieve, or rest.

It is their care in all the ages to take the buffet and cushion the shock.
It is their care that the gear engages; it is their care that the switches lock.
It is their care that the wheels run truly; it is their care to embark and entrain,
Tally, transport, and deliver duly the Sons of Mary by land and main.

They say to mountains "Be ye remov’d." They say to the lesser floods "Be dry."
Under their rods are the rocks reprov’d -- they are not afraid of that which is high.
Then do the hill-tops shake to the summit -- then is the bed of the deep laid bare,
That the Sons of Mary may overcome it, pleasantly sleeping and unaware.

They finger Death at their gloves' end where they piece and repiece the living wires.
He rears against the gates they tend: they feed him hungry behind their fires.
Early at dawn, ere men see clear, they stumble into his terrible stall,
And hale him forth like a haltered steer, and goad and turn him till evenfall.

To these from birth is Belief forbidden; from these till death is Relief afar.
They are concerned with matters hidden -- under the earthline their altars are --
The secret fountains to follow up, waters withdrawn to restore to the mouth,
And gather the floods as in a cup, and pour them again at a city's drouth.

They do not preach that their God will rouse them a little before the nuts work loose.
They do not preach that His Pity allows them to drop their job when they damn-well choose.
As in the thronged and the lighted ways, so in the dark and the desert they stand,
Wary and watchful all their days that their brethren's ways may be long in the land.

Raise ye the stone or cleave the wood to make a path more fair or flat;
Lo, it is black already with the blood some Son of Martha spilled for that!
Not as a ladder from earth to Heaven, not as a witness to any creed,
But simple service simply given to his own kind in their common need.

And the Sons of Mary smile and are bless’d -- they know the Angels are on their side.
They know in them is the Grace confess’d, and for them are the Mercies multiplied.
They sit at the feet -- they hear the Word -- they see how truly the Promise runs.
They have cast their burden upon the Lord, and -- the Lord He lays it on Martha's Sons!


The NYT on Mass v. EPA:

Today's New York Times urges the Supreme Court to force the Environmental Protection Agency to regulate greenhouse gases under the Clean Air Act. It is worth a careful read.

The Bush administration has been on a six-year campaign to expand its powers, often beyond what the Constitution allows. So it is odd to hear it claim that it lacks the power to slow global warming by limiting the emission of harmful gases. But that is just what it will argue to the Supreme Court tomorrow, in what may be the most important environmental case in many years.
This is a fair point about the Bush Administration, but it says little to nothing about the merits of the litigation. Whether or not the Administration is consistent in its assessments of federal regulatory authority should not be at issue.

It is also worth noting that the Administration's claim here — the lack of statutory authority has little to do with claims in other contexts about inherent executive authority under the Constitution. No one in this case claims the EPA has inherent authority under the Constitution to regulate greenhouse gases, nor is anyone claiming that such regulation would be unconstitutional. The issue here, instead, is the nature of Congress' delegation of regulatory authority to the EPA, and it is certainly consistent with various theories of the "unitary executive" to argue, as the Administration does, that this question should be answered by the EPA, and not the courts.

A group of 12 states . . . backed by environmental groups and scientists, say that the Clean Air Act requires the E.P.A. to impose limits on carbon dioxide and other greenhouse gases emitted by new cars. These gases are a major contributor to the “greenhouse effect” that is dangerously heating up the planet.
All true, but only part of the story. The EPA's position is also supported by several state intervenors, scientists, and non-profit public interest groups (not to mention many corporate interests and some labor groups). Nonetheless, the Times simply refers to "the states" throughout the editorial. It would be equally disingenuous for those of us who support the EPA to point to the "Bork Brief" or the "Taft Brief" (authored by noted air pollution law expert Arnold Reitze) and say the EPA is "backed by eminent legal scholars" without noting that there are eminent scholars on the other side as well.

It is also important to underscore that this case is not about the science of climate change. There is no dispute that human emissions of greenhouse gases affect the global climate. Rather, the fundamental issues are whether the Clean Air Act mandates the sort of regulatory action the petitioners seek, and whether these (or any) petitioners are entitled to bring these claims in court. As the Times summarizes the Administration's arguments:

The Bush administration insists that the E.P.A. does not have the power to limit these gases. It argues that they are not “air pollutants” under the Clean Air Act. Alternatively, it contends that the court should dismiss the case because the [petitioning] states do not have “standing,” since they cannot show that they will be specifically harmed by the agency’s failure to regulate greenhouse gases.
This is a fair characterization of the EPA's position, but it is also worth nothing that the EPA is hardly alone in this case. There is a virtual army of respondent-intervenors (here, here, here, and here), some of which make additional arguments worthy of consideration (just as there are many important amici filed on either side, most of which are available here).

Back to the Times:

A plain reading of the Clean Air Act shows that the [petitioning] states are right. The act says that the E.P.A. “shall” set standards for “any air pollutant” that in its judgment causes or contributes to air pollution that “may reasonably be anticipated to endanger public health or welfare.” The word “welfare,” the law says, includes “climate” and “weather.” The E.P.A. makes an array of specious arguments about why the act does not mean what it expressly says. But it has no right to refuse to do what Congress said it “shall” do.
In my view, if it is established that these provisions of the Clean Air Act apply to greenhouse gases as such, and if petitioners have standing to bring these claims — two mighty big "ifs" in my book — then the petitioners have a fairly strong case. The problem is that, even if standing is demonstrated, it is difficult to argue that the relevant provisions of the Clean Air Act have anything to do with global warming. The text of the Clean Air Act, read in its entirety and in historical context, clearly bears this out. Congress has repeatedly considered climate change policy, beginning in 1978, and has repeatedly refused to adopt regulatory measures in favor of non-binding programs of one sort or another.

Moreover, the structure of the Act is incompatible with efforts to address climate-wide concerns. To declare carbon dioxide and other greenhouse gases to be "pollutants" under the Clean Air Act is to require far more than the control of vehicular emissions. Once that threshold determination is made it is child's play to trigger other Clean Air Act provisions. For instance, it would almost certainly place the EPA in the position of trying to set National Ambient Air Quality Standards for greenhouse gases (as a parallel lawsuit, filed by many of the same states in federal district court and temporarily placed on hold, argued). Yet the structure of NAAQS compliance, including localized State Implementation Plans, is wholly incompatible with a climate-wide concern such as global warming. Congress clearly understood this when it last revised the Act, rejecting emission controls on greenhouse gases and adopting special provisions for another global concern (stratospheric ozone depletion). Thus, to mandate the regulation of greenhouse gases is not to force EPA to comply with Congress' command. Rather it is to force actions in Court that have never been adopted in the political process.

Beneath the statutory and standing questions, this is a case about how seriously the government takes global warming.
Not at all. This is a case about what authority Congress delegated to the EPA and the role of the courts in climate policy. The urgency of climate change, or the Administration's fecklessness on this or any other issue, should be of no concern to the Court. As Justice Kennedy noted in Rapanos, “environmental concerns provide no reason to disregard limits in the statutory text." Evaluating the seriousness of a given environmental concern, and what (if anything) should be done about it is the job of Congress and the Executive, not the courts.
The E.P.A.’s decision was based in part on its poorly reasoned conclusion that there was too much “scientific uncertainty” about global warming to worry about it. The government’s claim that the states lack standing also scoffs at global warming, by failing to acknowledge that the states have a strong interest in protecting their land and citizens against coastal flooding and the other kinds of damage that are being projected.
I agree that if one concludes that the Clean Air Act applies to greenhouse gases, than the EPA's arguments for failing to regulate fall flat, but (again) this just begs the prior question. As for the standing arguments, one need not "scoff" at global warming to argue (as I have) that the harms alleged are too generalized and diffuse, and either not "actual or imminent" or insufficiently "concrete and particularized" (or both) to satisfy the requirements of Article III standing. Deciding concerns about global warming are real only begins, rather than ends, the proper standing inquiry.
In a friend-of-the-court brief, climate scientists from the NASA Goddard Institute for Space Studies, Stanford University and other respected institutions warn that “the scientific evidence of the risks, long time lags and irreversibility of climate change argue persuasively for prompt regulatory action.”
So they do. But this is an argument that should be addressed to the political branches — to legislators and treaty negotiators — not to the Court.
The Supreme Court can strike an important blow in defense of the planet simply by ruling that the E.P.A. must start following the law.
The Court clearly has the power to do this, but that does not mean it should. At stake in this case is not merely (or even primarily) whether the federal government will regulate greenhouse gases. Rather, as Ed Warren suggested last week at AEI, the ultimate question for the Court is whether it wishes to place its thumb on the scales of climate policy, or is willing to leave such important policy questions in the political branches where, as a matter of both law and prudence, they belong.

Note: I expect many readers disagree with much that I have said above. I hope we can have a lively and civil exchange on these matters, and I will make my best effort to respond to serious points either today or later in the week. I will also post my thoughts on the oral argument tomorrow once the transcript is released.

UPDATE: In response to some comments below, let me add a note on the Cato Institute brief. First, this is an amicus brief. As such, it is supposed to make new or different arguments than those contained in the briefs of the parties. This (and space constraints) explains why the brief does not engage in an extended textual analysis of the Clean Air Act. This ground is amply covered in the various respondent briefs (of which there are five - EPA, UARG, CO2 Lit Group, Vehicle Mfrs, and Respondent States). We saw no value in duplicating their efforts.

Second, both the folks at Cato and I were interested in taking a step back and addressing the antecedent questions that are more in line with my academic interests and Cato's long-standing interest in separation of powers questions. Thus, the brief focuses on standing and delegation rather than statutory interpretation. When it cames to EPA's authority, we chose to frame the argument in terms of delegation because we believe that courts should be reluctant to assume broad delegations of regulatory authority absent an explicit legislative command. I believe that this argument reinforces and strengthens the arguments presented in other briefs that the Clean Air Act's text, when viewed in its entirety and in context, does not authorize the regulation of CO2.

Third, in reading this and any other brief, it is important to remember that it is an advocacy document, not a treatise. I am unconvinced that Massachusetts v. EPA will be won or lost on textualist grounds. Strict Scalia-esque arguments about the statutory text may be more intellecutally satisfying to some, but it is not necessarily the best way to create and sustain a court majority. Whatever the merits of textualism as an approach to statutory interpretation, there is no majority of strict textualists on the Court.

In conclusion, the lack of more detailed statutory arguments in the Cato amicus brief should not be read as evidence that such arguments do not exist. They are just not the arguments we chose to make.


"Worst of Both Worlds":

Robert Samuelson joins the ranks of those unimpressed with the analysis presented by the Stern Review.

Stern's headlined conclusions are intellectual fictions. They're essentially fabrications to justify an aggressive anti-global-warming agenda. The danger of that is we'd end up with the worst of both worlds: a program that harms the economy without much cutting of greenhouse gases.

Let me throw some messy realities onto Stern's tidy picture. In the global-warming debate, there's a big gap between public rhetoric (which verges on hysteria) and public behavior (which indicates indifference). People say they're worried but don't act that way.

Even many nations that signed on to binding targets under the Kyoto Protocol have failed to make signficiant progress in curtailing their emissions. Samuelson offers three reasons for this:

1) "With today's technologies, we don't know how to cut greenhouse gases in politically and economically acceptable ways."

2) "In rich democracies, policies that might curb greenhouse gases require politicians and the public to act in exceptionally "enlightened" (read: "unrealistic") ways."

3) "Even if rich countries cut emissions, it won't make much difference unless poor countries do likewise—and so far, they've refused because that might jeopardize their economic growth and poverty-reduction efforts."

What then are we to do? Samuelson calls for "more candor" and a greater focus on technology.

Unless we develop cost-effective technologies that break the link between carbon-dioxide emissions and energy use, we can't do much. Anyone serious about global warming must focus on technology—and not just assume it. Otherwise, our practical choices are all bad: costly mandates and controls that harm the economy; or costly mandates and controls that barely affect greenhouse gases. Or, possibly, both.

The problem of generating enough energy to meet the world's future energy needs in an environmentally acceptable manner is a real problem. And, as Ron Bailey points out, one that will not be easily solved. One thing we should resist, however, is a naive faith that government mandarins can guide our way to a "clean" energy future. The history of federal efforts to spur technological advance is totally uninspiring. As Bailey concludes:

history teaches us to scrap the Apollo Project model for technology R&D. Federal bureaucrats are simply not smart enough to pick winning energy technologies. Instead, eliminate all energy subsidies, set a price for carbon, and then let tens of thousands of energy researchers and entrepreneurs develop and test various new technologies in the market. No one knows now how humanity will fuel the 21st century, but Apollo and Manhattan Project-style Federal energy research projects will prove to be a huge waste of time, money and talent.

The problem with this, however, is that there are sizable constituencies for Apollo-style federal spending programs, and a much smaller constituency for sound public policy.


Monday, November 27, 2006

Are the Warrant Documents Released in the Atlanta Case Forgeries?: [N.B. I have rewritten this post after the updates became more important than the original.] Radley Balko links to the warrant and affidavit in the recent Atlanta shooting case, and then links to a story in the Atlanta Journal Constitution suggesting, remarkably, that the warrant documents released by the officials in Atlanta may be a forgery:
  The informant, who said he worked with Atlanta police for four years, also told WAGA-TV that he hadn't been to 933 Neal Street. His identity hidden, he told the TV station that one of the drug officers called him soon after the shooting with instructions.
  Quoting the police officers, the informant told Fox 5 News: " 'This is what you need to do. You need to cover our (rear). ... It's all on you man. ... You need to tell them about this Sam dude.' "

  Pennington said investigators were trying to determine the truth. "I don't know if he went in or not," he said.
  . . . .
  Also, even though the affidavit said that the house was outfitted with surveillance cameras, Pennington said the informant had told internal affairs investigators that police officers had asked him to lie about the cameras. Pennington could not confirm whether the cameras existed.
  To add to that, commenter PersonFromPorlock points out that all four of the Judge's signatures on the warrant and affidavit appear — at least at first blush — to be identical. For that matter, the signatures of the affiant appear to be identical, too. Hmm. It looks that way to me, at least — do readers agree? Perhaps it's just a coincidence — the judge just always signed his/her signature the same way, or the photocopy isn't good enough to reveal the differences. But the signatures look pretty much identical, and at least in my experience I haven't heard of a judge or affiant (or both) using a signature stamp for a warrant. I don't want to go all Memogate here, but I wonder if the signatures might help reveal the document as a forgery? I suspect we'll know soon enough.

  UPDATE: Radley has more on the identical signatures here. A few commenters indicate that electronic signatures are used in at least some jurisdictions; if Fulton County is one of these jurisdictions, then obviously that would explain the signature question innocently enough. It wouldn't explain the AJC story, though.

  ANOTHER UPDATE: Radley confirms that in Atlanta, judges sign warrants with an electronic signature.

Related Posts (on one page):

  1. Federal Subsidies to State and Local Governments and the Militarization of Police:
  2. Are the Warrant Documents Released in the Atlanta Case Forgeries?:

Asking a Sentencing Jury To Send a Message:

Doug Berman (Sentencing Law & Policy) writes:

Thanks to a listserve posting by Eugene Volokh, I learned the Kentucky Supreme Court recently issued an intriguing ruling about arguments to a sentencing jury in Brewer v. Commonwealth, No. 2004-SC-000742-MR (Ky. Nov. 22, 2006) (available here). Specifically, Brewer disapproves of prosecutorial arguments to a sentencing jury that it should "send a message" to the community by imposing a harsh sentence. Here are key passages from the Brewer opinion (with cites omitted):

It is unquestionably the rule in Kentucky that counsel has wide latitude while making opening or closing statements. And it is equally well established that a prosecutor may use his closing argument to attempt to persuade the jurors the matter should not be dealt with lightly. So the Commonwealth's exhortation to the jury to recommend that Appellant be sentenced to the maximum allowable sentence is neither surprising nor improper. But what is troubling is the "send a message" portion of the Commonwealth's argument. Although we disapprove of the comments in question, we find them to be virtually indistinguishable from those we recently found to not constitute palpable error in [prior rulings]....

Lest this opinion be misconstrued, we do find that the Commonwealth's exhortation to this jury to "send a message" to the community was improper. We strongly urge the prosecutors throughout the Commonwealth to use extreme caution in making similar arguments. Indeed, had a timely objection been made, we may have found the Commonwealth's comments to constitute reversible error. But, as in [prior cases], upon a consideration of the overall trial and the context in which the comments in question were made, we do not find that there is a substantial possibility that the Commonwealth's argument seriously affected the overall fairness of the proceedings. Thus, we decline to find that the Commonwealth's comments rise to the level of palpable error.

Eugene wonders exactly what is improper about urging a sentencing jury to "send a message." In addition, I have certainly seen this sort of argument used by many prosecutors in many jurisdictions. Have any other courts held or suggested a "send a message" sentencing argument is improper? On what basis?

(For a link to the opinion, see Doug's post.)

Two important points to keep in mind:

(1) This is an argument made to the jury while it's determining the defendant's sentence, not while it's deciding whether he's guilty. The defendant had already been found guilty; Kentucky is one of the few states in which the jury is also called on to impose a sentence.

(2) Generally, some theories of punishment — deterrence (general and specific) and norm-setting — are all about sending either the public or the defendants a message. Rehabilitation may also be partly about sending a message. The other major theories, retribution and incapacitation, aren't focused on message-sending. Is the Kentucky court implicitly requiring that the prosecution argument stick solely to retribution or incapacitation? Or is the Kentucky court acknowledging the legitimacy of deterrence and norm-setting as theories of punishment, but nonetheless concluding for some reason that the prosecution can't overtly argue to the jury about the message that their sentence would send?


The Economics of Long-Distance Relationships:

Economists Tyler Cowen and Tim Harford provide an important insight into the dynamics of long-distance relationships:

Here's Harford (quoted by Tyler):

Economist Tyler Cowen, a professor at George Mason University, has pointed out that the Alchian-Allen theorem applies to any long-distance relationship.

The theorem, briefly, implies that Australians drink higher-quality Californian wine than Californians, and vice-versa, because it is only worth the transportation costs for the most expensive wine. Similarly, there is no point in travelling to see your boyfriend for a take-away Indian meal and an evening in front of the telly. To justify the trip’s fixed costs, you will require champagne, sparkling conversation and energetic sex. Insist on it.

And Tyler himself:

[To make a long-distance relationship work] you must confront the Alchian and Allen Theorem. The higher the fixed cost, the "higher quality" a trip you will both tend to seek. . . . More concretely, who would fly across the country for a mere kiss on the cheek?

But moving too fast is dangerous and ill-advised. And in the longer run you will each "expect too much" from each visit. Remember the old question: "Are We Having Fun Now?" The quest for continual high-quality excitement is not conducive to casual down time together, which is the glue which binds relationships together in the longer run. The Alchian and Allen Theorem is a potent enemy of the all-important "low expectations" and that alone is one good reason to keep transportation costs low in your life.

In general, I'm not sure that economists are the best people to go to for dating advice (lawprofs are probably even worse). In this case, however, I think that Harford and Tyler have definitely hit the nail on the head. The Alchian-Allen dynamic certainly helps explain the failure of quite a few long-distance relationships I have observed (obviously a scientifically representative sample:)). If only I'd had the benefit of Tyler and Harford's insights at certain earlier points in my life.

I'm far less certain about the validity of Tyler's proposed solution to the problem:

Do something else with part of your trip to the west (east) coast. Lower expectations for the visit. Meet another friend too, or set up some business, or give a paper at a scintillating academic conference. Yes you will have less time with your potential beloved, but the remaining time will get you further toward where you want to be. How much time does one need to fall in love anyway?

Doing two things on your trip almost always further increases the cost, and therefore might actually raise the expected utility needed to make the trip in the first place. Moreover, it will probably reduce the time you get to spend with your significant other from an already dangerously low level; this poses several threats to the viability of the relationship that are probably too obvious to describe in detail. You may not need much time to fall in love, but you do need it to stay in love.

On the other hand, I don't know anyone who has empirically tested what we may call the Cowen Corollary to the Alchian-Allen Theorem. Maybe it actually works! If you run a foundation that funds academic research, perhaps you would like to give George Mason University a grant for the purposes of studying this important issue. Think of the many doomed long-distance relationships that could be saved! Sadly, I don't think that relying on Head Conspirator Eugene's "romance of engineering" is going to solve the problem....

Related Posts (on one page):

  1. It Is Their Care in All the Ages
  2. The Economics of Long-Distance Relationships:
  3. The Romance of Engineering:

The Romance of Engineering:

I loved this Popular Science article on designing a more hurricane-resistant nail, which Orin pointed to below. And if you can't see the romance in this, then you aren't my kind of romantic.


Splitting Summers: I have a question for law students or lawyers who as law firm summer associates "split" the summer, working for half of the summer at one firm and half the summer at a second firm. Here's the question: If you accepted an offer of permanent employment at one of the two firms, did you accept at the firm from the first half of the summer or the firm from the second half of the summer? And why?

  The reason I ask is that many law firms strongly prefer students to join them for the first half of the summer rather than the second half. I would guess they have this preference because they think students are more likely to pick the firm where they spent the first half of the summer. I'm wondering, is this sense accurate? And if it is, why are students more likely to accept offers from the first-half firm?

Does Donating a Kidney Increase Susceptibility to Serious Kidney Disease That Would Itself Require a Transplant?

It turns out that the answer, somewhat to my surprise, seems to be "no." (I had thought there would be some such risk.) See Mary D. Ellison et al., Living Kidney Donors in Need of Kidney Transplants: A Report from Organ Procur. & Transp. Net., 74 Transplantation 1349 (2002) (noting that the best current estimates of the risk of kidney donors’ eventually developing end-stage renal disease “approximate[] the . . . adjusted incident rate for end-stage renal disease in the general U.S. population”); Margaret J. Bia et al., Evaluation of Living Renal Donors, 60 Transplantation 322, 326 (1995) (same).

I stress "seems to," because even though we do have decades of data, the studies have some understandable limitations. But the studies do suggest that there is no such elevated risk, and in any event it appears that even if there is some elevated risk that the studies don't catch, it's unlikely to be very high.

I'll update my article draft accordingly, but since the issue had come up in my posts and the comments to those posts, I'd note it. Recall that transplant operations do involve a roughly 0.03% chance of relatively prompt donor death, and a 2% or less chance of serious complications.


Building A Better Mousetrap turns out to be less useful than designing a better nail. More details about the HurriQuake nail are available here. Thanks to RBIII for the link.

Can You "Possess" a File If You Don't Realize It Exists?: One of the interesting questions raised by the application of traditional contraband concepts to digital files is whether a suspect who views a contraband image using a web broswer but does not realize the image is stored in the browser cache "possesses" that image based only on the presence of the file in the cache. In a decision handed down today, United States v. Kuchinski, involving charges of possessing child pornography images, the Ninth Circuit concluded that the answer is "no":
Where a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography images located in those files, without some other indication of dominion and control over the images. To do so turns abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion and control.
  I think this is correct as a matter of doctrine. If you don't know an image is there, you can't possess it. In most cases this isn't an issue: a suspect who seeks out an image and knowingly retrieves it will be guilty of knowing receipt, and there will usually be some evidence of dominion and control other than presence in the browser cache. But it seems to me that mere presence of a file in the browser cache shouldn't be enough to establish possession of the file. (For more on this issue, see my casebook, pages 224-32.)

  Thanks to Howard for the link.

Virtues and Vices:

I was recently reminded of this Churchill quote (and, yes, it does seem to be a genuine Churchill quote, not just a loose quote that gets attributed to Churchill, Wilde, Twain, Bierce, or Parker):

He has all the virtues I dislike and none of the vices I admire.

Thanks to Sasha for confirming this for me; Churchill apparently said this about Stafford Cripps.


Poem of the Day,

or perhaps of the decade for those of us with small kids -- Kipling's Six Honest Serving Men

I keep six honest serving-men
(They taught me all I knew);
Their names are What and Why and When
And How and Where and Who.
I send them over land and sea,
I send them east and west;
But after they have worked for me,
I give them all a rest.

I let them rest from nine till five,
For I am busy then,
As well as breakfast, lunch, and tea,
For they are hungry men.
But different folk have different views;
I know a person small --
She keeps ten million serving-men,
Who get no rest at all!

She sends 'em abroad on her own affairs,
From the second she opens her eyes --
One million Hows, two million Wheres,
And seven million Whys!


AEI Program on Watters v. Wachovia:

I'll be participating on a panel tomorrow afternoon at 2:00 p.m. at the American Enterprise Institute on the Watters v. Wachovia Bank preemption case.

Info on the program is available here:

Here's the description of the program:

The Bush administration’s efforts to achieve tort reform through regulatory agency preemption has garnered much academic and press coverage. On November 29, 2006, the Supreme Court will hear oral argument in the case of Watters v. Wachovia Bank. At issue is the scope of the National Bank Act and federal regulation, with Wachovia Bank successfully arguing in the Sixth Circuit Court of Appeals that federal regulations preempt Michigan laws regarding Wachovia’s lending activities. The Supreme Court’s decision will be important not just because of its effect on banking regulation, but also because it will serve as a Roberts Court precedent on the question of how much authority federal regulatory agencies such as the Food and Drug Administration and the National Highway Traffic Safety Administration have to decide to preempt state law.

Does federal banking law bar states from regulating the activities of state-chartered subsidiaries of national banks? What should the appropriate scope of the National Bank Act be? Does state regulation of national banks help or hurt consumers? How much deference should be given to federal agencies’ determinations that their regulations preempt state law?

At this AEI event, panelists will discuss the legal, economic, and policy issues involved. The panel will include George Mason University law professor Todd Zywicki, a member of a group of economists, scholars, and law professors who filed an amicus brief; Columbia law professor Thomas W. Merrill, who represents the Center for State Enforcement of Antitrust and Consumer Protection Laws as amicus in this case; attorney Amy Quester, who represents the Center for Responsible Lending as amicus in this case; and O’Melveny & Myers LLP partner Brian Brooks, an attorney who represents banks in class action defenses in court. Ted Frank, director of AEI’s Liability Project, will moderate.


I am told that our program likely will be covered live on C-SPAN 1 tomorrow at 2:00.


California Universities "Fill[ing] Their Entire Freshman Classes With Nothing But Asian Americans":

Which political leader expressed concern about this, and suggested that abolishing race-based admissions could lead to this (in his view unfortunate) result?

I should note that while the concern was hyperbole -- though universities of course could fill their freshman classes with Asian-Americans, race-blind admissions would not lead to such an outcome -- this year for the first time Asians outnumbered any other racial group, including whites, among students admitted to all University of California schools. (This had already been the case as to some schools.)

My reactions:

(1) UC doesn't "look like California." In fact, as simple arithmetic will tell us, when Asians are "overrepresented" this way compared to their fraction of the California college-age population, whites and other racial groups are substantially "underrepresented." Yet that's surely no reason to institute race preferences;

(2) Asian-American culture is obviously doing something right. Others, including whites like me, should do what they can to copy those aspects of Asian-American culture that promote this.

Related Posts (on one page):

  1. Something's Terribly Wrong with University Admissions, Judging by This Story:
  2. California Universities "Fill[ing] Their Entire Freshman Classes With Nothing But Asian Americans":

Mass v. EPA Previews:

There were lots of news stories over the weekend previewing Wednesday's argument in Massachusetts v. EPA, as well as several editorials urging one outcome or another (see, e.g., here and here). One of the better stories was Joel Lang's coverage in the Hartford Courant.

For a basic rundown of the legal issues, one can consult this post by Justin Pidot on Grist. Pidot also authored this longer report surveying the whole field of climate-related litigation.

UPDATE: Lyle Denniston's preview on SCOTUSBlog is also well worth the read.

UPDATE: So, too, is this Dorf on Law post by Jamison Colburn.


The (Politically) Divided Academy.--

David Bernstein notes a response by Daniel Stein and Charlotta Stern to a recent article in Public Opinion Quarterly: "Is the Academy a Liberal Hegemony? The Political Orientations and Educational Values of Professors," by John F. Zipp and Rudy Fenwick. I have not yet looked at the Stein/Stern response, but I have looked at the Zipp/Fenwick article and I found its rhetoric somewhat odd.

Zipp and Fenwick’s first critique of existing studies showing wide disparities in party affiliation among faculty is that one should look at self-reported ideology rather than party, an argument for which they present no persuasive argument.

Zipp and Fenwick’s second critique of the existing studies is in part:

Second, these contentions have ignored much better data and research. The most comprehensive study of the political leanings of professors is Ladd and Lipset's (1975) The Divided Academy, which uses data from the 1969 Carnegie survey as well as a smaller follow-up survey done in 1972. . . . Ladd and Lipset note that liberalism varied appreciably by discipline--the social sciences were the most liberal, while engineering and business were dominated by conservatives . . . .

I just consulted Ladd and Lipset’s 1975 Divided Academy. Ladd and Lipset do not show that conservatives dominate engineering and business (p. 369).

In 1969:
Electrical engineering is 40% left/liberal, 31% middle, and 31% conservative.
Mechanical engineering is 25% left/liberal, 25% middle, and 50% conservative.
Civil engineering is 22% left/liberal, 40% middle, and 38% conservative.
Business is 31% left/liberal, 29% middle, and 40% conservative.

Having about 60% self-described liberals and middle of the road, and about 40% conservatives in engineering and business in 1969 is not what I would call "conservative dominance," especially given the relatively liberal views on particular issues that the 1969 study found that faculty have. One must also remember that these totals include junior colleges, which (at least in later studies) differ considerably from the 4-year colleges and universities that have been the focus of the debate.

Further, it is odd that Zipp and Fenwick would point to Ladd & Lipset’s 1970s writing as evidence against the thesis that “a disproportionate percentage of the faculty is liberal.” When Michael Faia (foreshadowing Zipp and Fenwick) wrote an article on the “Myth of the Liberal Professor,” Ladd and Lipset sliced and diced Faia in “The Myth of the "Conservative" Professor: A Reply to Michael Faia,” Sociology of Education, Vol. 47, No. 2. (Spring, 1974), pp. 203-213. Ladd and lipset point out that the 1969 and 1972 Carnegie data show that professors are much more liberal than the general public, even more on their views on public issues than on their self-described politics.

Related Posts (on one page):

  1. The (Politically) Divided Academy.--
  2. Ideology and the Academy--An Empirical Dispute:


Last week I posted several times on the charitable donation patterns of redistributionists, the subject of one chapter in the book Who Really Cares and a peripheral issue in a paper of mine, Testing Social Dominance: Is Support for Capitalism and Opposition to Income Redistribution Driven by Racism and Intolerance?

This week I will describe some of the main ideas in my paper on the attitudes of income redistributionists and anti-capitalists, a paper that can be downloaded in its entirety at this SSRN page.

In the field of social psychology, it is commonly believed that people support capitalism and oppose greater income redistribution because they are racist or want to dominate other people or groups. Indeed, a study of college students in the United States and secondary students in Sweden found that attitudes supporting capitalism were positively associated with racism and an orientation toward social dominance (Sidanius & Pratto, 1993, cited in my manuscript). In my manuscript I expand and test this thesis using 16 nationally representative General Social Surveys (GSS) conducted by the National Opinion Research Center between 1980 and 2004.

The GSS is the most widely used database in sociology except for the US Census and one of the most used databases in the social sciences. For a discussion of the questions I use to measure traditional racism and redistributionist attitudes, you can download my manuscript from SSRN and examine pages 16-19.

I begin by showing that respondents who express traditionally racist views (on segregation, interracial marriage, and inborn racial abilities) tend to support greater income redistribution. All nine spearman correlations between the three racism variables and the three redistribution variables are significant, with coefficients ranging from .067 to .142.

Next I make two simple scales, one combining the three racism variables into a Racism Scale and the other combining two income redistribution variables that were asked in the same GSS into a Redistribution Scale.

In Chart 1, scores on the 3-item traditional racism scale are compared to scores on the 2-item income redistribution scale. Overall, 42% of the non-Hispanic white population expressed racist responses to any of the three questions. Those who favored income redistribution also tended to express traditionally racist views. In other words, the data are consistent with the hypothesis that those who want the government to equalize incomes tend to be somewhat more traditionally racist than those who don’t favor equalizing incomes.

(Click to enlarge.)

Later in the paper I present the results of full latent variable structural equation models. The latent variable traditional racism (Model 1: r=.27) predicts the latent variable income redistribution. (I also find that the preference against income redistribution is not just the result of income or education; rather, the data are consistent with racism continuing to play a small but significant role in explaining the support for income redistribution.)

The data are broadly inconsistent with the standard belief in the social psychology literature that anti-redistributionist views are positively associated with racism. The results are a problem for the academic assumption that opposing income redistribution indicates hostility toward other groups and a desire to dominate them. Indeed, many social psychologists believe that the link between opposing redistribution and social dominance is so strong and clear that opposing redistribution can be treated as a measure of social dominance orientation.


Sunday, November 26, 2006

"Scalia the Civil Libertarian":

Scott Turow has an interesting article in today's New York Times Magazine on the civil libertarian effect of Justice Scalia's formalist jurisprudence. Here's a taste:

Justice Scalia, especially in the last decade, has frequently taken an expansive view of the Bill of Rights, thus supporting defendants in criminal cases. Scalia is one of the intellectual godfathers of a strand of Supreme Court decisions, crystallized by Apprendi v. New Jersey, that revolutionized sentencing laws. Following a strict interpretation of the Fifth Amendment’s guarantee of due process of law and the Sixth Amendment’s right to trial by jury, Scalia has insisted that any fact used to extend punishment beyond normal statutory limits must be specified and proved to a jury beyond a reasonable doubt. Despite his fevered support for capital punishment, Scalia also joined a court majority in holding that the Constitution requires a death sentence to be decided by a jury, rather than by a judge, effectively setting aside every capital sentence still on direct appeal in five states. . . .

Justice Scalia is led to these seemingly divergent positions by his unyielding adherence to a school of constitutional interpretation called originalism. To Scalia, the Bill of Rights means exactly what it did in 1791, no more, no less. The needs of an evolving society, he says, should be addressed by legislation rather than the courts.

In all of this, Scalia is first and foremost a legal formalist — meaning that to him, the rules are the rules. He did not sign on to the Apprendi cases out of any special sympathy for criminal defendants — indeed, he once wrote an opinion refusing to uphold an acquittal on the grounds that the defendant’s motion for acquittal was filed one day too late. Rather, he was motivated by the assumption that, as he put it in the capital-punishment case, “the right of trial by jury is in perilous decline.” In other words, over the years the right had come to be interpreted more narrowly than in 1791.

Accoridng to Turow, the "looming question" is where this approach will lead Scalia in future war-on-terror cases.


Ideology and the Academy--An Empirical Dispute:

In the most recent issue of Public Opinion Quarterly, an article "Is the Academy a Liberal Hegemony?" by John Zipp and Rudy Fenwick purports to refute "right wing" claims about the ideological profile of professors, in particular work by George Mason economist Daniel Klein and coauthors. In an online interview, they accuse Klein and others of “cherry picking” the data. Klein and Charlotta Stern have written a full reply, which they have submitted to Public Opinion Quarterly.

Klein and Stern write:

[Zipp and Fenwick] attempt to allay concerns about the faculty ideological profile and trends with ‘liberal’ and ‘conservative’ statistics, without owning up to the nature and limitations of such data. They misrepresent our work in a number of ways. They also misrepresent other ‘right-wing’ research, notably Horowitz and Lehrer (2002). They construct a strawman to shift from Democrat:Republican in the humanities and social sciences to self-characterized Liberal:Conservative in the entire faculty, and then use empirics to attack the strawman. After refocusing the contention on all schools (even two-year colleges) and all departments, they never acknowledge the special importance of high-rank schools and of the humanities and social sciences. They omit mention of Rothman, Lichter, and Nevitte (2005) and Klein and Stern (2005b), which shed light on their questions and which run counter to much of their analysis. In the end, the data that Zipp and Fenwick bring to the table in fact support our claims.

It will be interesting to see if the journal accepts Klein & Stern’s reply, but meanwhile readers judge for themselves.

Also of interest, if one takes Zipp and Fenwick's claims at face value, it means that elite universities are hiring conservatives at far lower rates than community colleges. This is inconsistent with claims by some that whatever the ratio of liberals to conservative in academia, that is merely a reflection of liberals being more interested in the field than conservatives. It could mean that conservative applicants for academic jobs are less well-qualified than liberal applicants, that conservative applicants face discrimination and thus their career prospects are limited, or that community colleges have a different mix of faculty than universities, and that such mixes are correlated with ideological differences. Note that none of the explanations are mutually inconsistent.

One interesting issue is whether "Democrat/Republican" is more informative regarding the ideological composition of faculty than "liberal/conservative." On the one hand, some overall "conservative" faculty, especially in the sciences, may register as Democrats because of their discomfort with the Republican's social and (perceived?) anti-scientific agenda. On the other hand, describing oneself as "moderate" or "conservative" is subjective and very much context-dependent; I've met many self-described "moderate" law professors whose views are moderate only compared to their colleagues, whose views are, in general American political terms, on the extreme left.

Related Posts (on one page):

  1. The (Politically) Divided Academy.--
  2. Ideology and the Academy--An Empirical Dispute:

The Power of Positive Drinking:

Wine makers are pleased that evidence demonstrating the health benefits of moderate wine consumption continues to mount. Yet, as the New York Times reports, wine makers can't tell you about it.

The industry has long been handcuffed by state and federal laws that discourage promoting the benefits of wine, with some of those restrictions dating back to the repeal of Prohibition in 1933. . .

“Yes, we’d all like to make hay of this, and we’ll do what we can, but we are very constrained,” said Michael Mondavi, founder and president of Folio Fine Wine Partners, a producer and importer of wines here.

As an industry that is closely regulated by the Alcohol and Tobacco Tax and Trade Bureau, Mr. Mondavi said, “it is blatantly against the law for any alcoholic beverage producers to make any health claim regardless of the facts or the accuracy.”

“Until that regulation is changed or modified in some way so that we can talk about the positive health aspects that are proven,” said Mr. Mondavi, the older son of famed winemaker Robert Mondavi, “we have to sit on our hands and wait for others to pick up the story.”

Ann Althouse notes that winemakers have been reluctant to litigate in defense of positive wine labels or advertising.

Others have not been so passive. Several years ago, the Competitive Enterprise Institute sued the Bureau of Alcohol Tobacco and Firearms for its de facto ban on positive health claims about alcoholic beverages, arguing that consumers would benefit from learning more about the helath benefits of moderate consumption.. (See the details of their case here and here.) The case was dismissed as unripe, but I would not be surprised if CEI took another shot.


Sunday Song Lyric: As Orin noted below, the incomparable Anita O'Day passed away this week. Born Antia Belle Colton, O'Day's long and path-breaking career was marked by important recordings, as well as a series of drug problems (both of which she wrote about in her autobiography, High Times, Hard Times).

Among the songs for which O'Day was known was "And Her Tears Flow Like Wine," which she first recorded in 1944 with Stan Kenton. Here's a taste:

How he loved the old racehorses
He would bet them every day
One day he caught a winner
And the cabbage wasn't hay
He indulged in fancy spending
Ordered rings, cars, and furs
But alas, alack like a stab in the back
She found out they were not hers

And her tears flowed like wine
Yes, her tears flowed like wine
She's a real sad tomato, she's a busted valentine
Cause her mama done told her that a man is darn unkind.

Related Posts (on one page):

  1. Sunday Song Lyric:
  2. Thanks for the Boogie Ride:

Professor Bainbridge is Back: Details here.