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Saturday, December 16, 2006

A Good Start for the Democrats:

Washington Post:

Republican leaders left behind just enough spending authority to keep the government operating through mid-February, less than halfway through the 2007 fiscal year that began Oct. 1. Democrats have signaled that when they take control of Congress in January they will extend that funding authority for the remainder of the year based largely on the previous year's spending levels, which will result in many cuts in programs.

"A lot of people will be left short," Rep. David R. Obey said.

The Democrats also will do something that is certain to anger many lawmakers but cheer critics of excessive government spending: They will wipe out thousands of lawmakers' pet projects, or earmarks, that have been a source of great controversy on Capitol Hill. In the past, lawmakers have peppered individual spending bills with earmarks benefiting special interests. But the funding resolution the Democrats intend to pass in lieu of spending bills will be devoid of earmarks.

22 Comments

The Economics of DC Dating:

Julian Sanchez and Heather debate the important question of whether most DC men are "vanilla pansies that are scared to approach a woman in a bar." Some DC men might take offense at the mere mention of the possibility that most of us are "vanilla pansies." I, on the other hand, very much hope that it's true. The higher the percentage of vanilla pansies among my male competitors on the DC dating scene, the better the market outlook for me! I am much more concerned about news items such as the fact that this guy is back on the dating market, since he would be an extremely tough customer to beat out. Fortunately, he doesn't spend much time in DC (I hope). The more general point here is that anything that reduces the real or imagined average quality of men in a dating market actually benefits single men in that area and harms the women.

On a slightly more serious note, I doubt that "vanilla pansies" are really a major problem on the DC dating scene. At least in the middle and upper classes, a high percentage of DC residents are involved in politics. Politics is very much a "people business" that rewards outgoing personalities with strong social skills. Pansies (and also shrinking violets:)) are unlikely to be attracted to politics in disproportionate numbers and if they do enter the field, generally don't survive in it for very long. The women of DC are far more likely to be suffer from the attentions of overly aggressive political types than from an excess of pansies.

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Tom Tancredo and Taiwan:

My latest media column for the Rocky Mountain News/Denver Post criticizes Colorado media for failing to cover Colorado Representative Tom Tancredo's exemplary work in support of a strong U.S. policy in defense of Taiwan's democracy and independence.

14 Comments

Hey, It's For Charity!:

Those of us who write for the VC blog got an interesting offer the other day from the folks setting up a new online karaoke site at singshot.com the other day: If we recorded and posted one of our own karaoke performances, they'd donate $500 bucks to a charity of our choice. What a deal! My fellow conspirators seems to have let their pride and good taste get in the way, but not me! Here's my song -- a not-as-inspired-as-the-original-but not altogether-terrible version of the great Dusty Springfield hit I Only Want to Be with You.
And wait, there's more! If any VC readers go to the site and record something of their own, Singshot will add another $1 to their contribution. [To get the credit, pu "VC Blog" in the tag attached to your recording before you save it on the site]. Come on folks! It's really easy, takes a few minutes, it actually is fun, and it's a good cause [my designated charity being the Kinhaven Music School, PO Box 585, Bethlehem PA 18016 - a truly wonderful music-making institution for young kids].

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Why the Texas ten percent plan is worse than traditional affirmative action:

In 1996, US Court of Appeals for the Fifth Circuit held, in Hopwood v. Texas, that the use of racial preferences to achieve "diversity" in college admissions is unconstitutional. In response, the Texas state legislature adopted the "Ten Percent Plan," a "race-neutral" way to achieve the desired proportion of minority students Texas' state universities without resorting to explicit consideration of race in admissions. The ten percent plan gives any high school student who is in the top 10% in his high school class automatic admission to any Texas state university, regardless of standardized test scores, the content of the classes he took, the strength of his high school, extracurricular activities, and other considerations.

The Ten percent plan was endorsed by then-Texas governor George W. Bush and has since been touted by the Bush Administration and others as a superior alternative to traditional affirmative action plans that rely open racial preferences; similar plans were later enacted in California and Florida. As this recent New York Times article points out, the ten percent plan succeeded in returning the percentages of African-American and Hispanic students in Texas state universities to roughly their pre-Hopwood levels - largely because many minority students attend schools where blacks or Hispanics are in the overwhelming majority. Unfortunately, however, the ten percent plan has negative side-effects and perverse incentives that are considerably worse than those of traditional affirmative action, including racial quotas.

First, it often leads universities to admit students that are probably inferior to those they would have chosen otherwise:

But the formula has also had unintended consequences . . .; it has become the tail that wagged the dog, university officials suggest. Seventy-one percent of the 6,864 Texans in the [UT Austin flagship campus] freshman class are top 10 percenters, compared with 41 percent in the first year the formula was used. That steady growth has frustrated college officials who have seen their flexibility to admit high school class presidents, high SAT scorers, science fair winners, immigrant strivers, artists and the like narrow.

“At some point you have to ask yourself, do you really want to admit your whole class on a single criteria,” said Bruce Walker, the admissions director at Austin. “It doesn’t give you the opportunity to recognize other kinds of merit.”

To be sure, this result could happen with traditional racial preferences as well. However, the ten percent plan affects a great many more admissions decisions than even the most rigid old-style affirmative action systems do. Rarely, if ever, do traditional affirmative action plans determine the admission of more than 15-20% of a school's student body. By contrast, at the University of Texas at Austin, over 70% of the student body was admitted under the ten percent plan. While some of these students would surely have gotten in anyway, it is highly likely that the ten percent plan leads to much larger sacrifices of academic merit than do racial preferences similar to those used at most other academic institutions.

Second, and probably much worse, the article notes that the formula creates perverse incentives for students to try to game the system by transferring to weaker schools or taking easier classes. While neither the article nor other evidence I have seen provides precise data on the numbers of students who do this, the effect may well be large. When I lived in Texas in 2001-2002, I met quite a few people with high school-age children who had switched to weaker schools in order to take advantage of the plan, or were considering doing so. Obviously, there is no similar perverse incentive created by traditional affirmative action. With a system of racial quotas or "plus factors," both white and minority high school students still have incentives to go to strong schools, in order to maximize their college admissions chances.

Third, the tradeoffs inherent in the ten percent plan are less transparent to both students and the general public than those involved in racial quotas. As a result, it is more likely that harmful effects will remain unmonitored and undetected. If public universities are going to strive for racial diversity, the costs and benefits of doing so should be as transparent as possible.

Finally, the ten percent plan also has the effect of disadvantaging high-achieving minority students who go to strong schools and - in part for that reason - fall short of the top ten percent in their class. Not only are these students disfavored relative to minority students attending weaker schools, they are also disfavored compared to whites in weaker schools as well:

[T]he formula has meant that the university may neglect desirable black and Hispanic students, as well as white students, who attend lustrous high schools but may not finish in the top 10. Marcus Price, a black finance major, for example, graduated from the High School for Engineering Professions in Houston, a competitive magnet school, with a 3.4 grade point average that included three A.P. courses. But with so many college-bound students to compete with, he ranked only in the top 20th percentile.

“I thought it was funny that you could go to a less competitive school, score a total of 800 or 900 on your SATs and get into U.T. at Austin as long as you were in the top 10 percent,” said Mr. Price, who scored 1200 on his SATs.

Some, perhaps including President Bush, would argue that the ten percent plan is still preferable to traditional affirmative action because racial preferences are intrinsically wrong, regardless of consequences. Perhaps they are. But if it is morally wrong to aim for a given racial balance in a state university student body by using explicit racial preferences, why is it not equally wrong to intentionally try to achieve the same effect through indirect, facially "neutral" means? In the days of Jim Crow, southern states often used facially neutral policies such as literacy tests, poll taxes, and peonage laws to disadvantage blacks. Few today would argue that these policies were somehow morally superior to those Jim Crow laws that discriminated against blacks through explicit racial classifications. If, as critics of affirmative action claim, explicit affirmative action preferences are morally wrong for the same reason that Jim Crow laws were wrong, then "facially neutral" affirmative action systems such as the Texas ten percent are wrong for the same reasons that the facially neutral means of propping up Jim Crow were.

If we want to ensure that some set percentage of university admissions slots go to particular minority groups, far better to do so through traditional affirmative action, than by means of the Texas ten percent plan.

UPDATE: I would like to briefly respond to three points raised by commenters. First, many claim that it's not possible for high school students in Texas to game the system by switching to weaker schools because of the distances involved. Texas is indeed a large state, but much of the population lives in several large cities (Houston, Dallas, San Antonio, etc.) where there are many high schools close together, and gaming the system more than possible.

Second, some claim (in contrast to the first group) that this kind of gaming would be a good thing because it might move good students to weak schools and thereby improve education for students trapped in the latter. This argument would be more compelling if it were not for the extensive empirical evidence against it. For example, numerous studies such as David Armor's Forced Justice (1992) show that efforts to bus in stronger students to poorly performing inner city schools had little or no impact on education quality. Merely introducing a relatively small percentage of superior students into a poorly performing students is unlikely to have a significant impact on those students already there. There are many better ways to improve education for those students trapped in the worst public schools, most notably school choice.

Third, several people claim that it is contradictory that I argue that the negative impact of the ten percent plan might go "undetected" yet simultaneously note several negative effects that clearly have been detected. I was guilty of a loose use of terminology. Because the ten percent plan is more opaque than traditional affirmative action, the general public (which lacks the time and incentive to follow policy issues closely) is less likely to notice its perverse effects than those of old-fashioned AA. That doesn't prevent their being noticed by experts.

NOTE: in 2001-2002, I clerked for Judge Jerry E. Smith, the Fifth Circuit judge who wrote the court's opinion in Hopwood five years earlier. I don't think this has any real connection to the merits of the ten percent plan, but I mention it to forestall the likely claim that my criticism of the ten percent plan is somehow inappropriate because I am "hiding" this fact.

89 Comments

Friday, December 15, 2006

Government Display of Christmas Trees:

The Seattle airport rabbi and Christmas tree story raises the question: Would it violate the Establishment Clause for the government to put up a Christmas tree alone, with no accompanying menorah or similar gesture towards ecumenicalism? A Slate piece suggests (though perhaps somewhat ambiguously) that allowing such stand-alone Christmas trees would involve "overturn[ing] the status quo" set by the Supreme Court's Allegheny County v. Greater Pittsburgh ACLU decision:

Consider, for example, the latest brouhaha: the Seattle-Tacoma airport's decision to take down Christmas trees rather than put up a menorah as well. After a Lubavitcher rabbi pointed out that the public display of Christian symbols violated the First Amendment, the right-wing Christmas Warriors flooded him with "hundreds of hate mail messages" that were part of "a surge of anti-Semitism," according to the Anti-Defamation League. Pressured, the rabbi relented and the trees were put back, foregoing any parallel acknowledgment of Hanukkah.

The Christmas extremists can claim a yarmulke for their wall. But let the record show that they, not the rabbi, were seeking to overturn the status quo. For more than 17 years, the law of the land -- i.e., the Constitution as interpreted by the Supreme Court -- has held that public holiday displays must be fundamentally secular. To erect nativity scenes in public places, the high court held in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter (1989), is to impermissibly endorse Christianity. Yet the Court also held that governments may "celebrate the season" through joint displays of Christmas trees and menorahs, since doing so acknowledges, as Justice Harry Blackmun wrote, that "Christmas and Chanukah are part of the same winter holiday season, which has attained a secular status in our society." Far from a victory for hard-line secularism, the 1989 ruling struck a moderate compromise between the ACLU's desire that no religious displays be permitted and the Christianists' belief that a city government can proclaim glory to the Christ child.

But Justice Blackmun's and O'Connor's controlling opinions in Allegheny expressly said that "when the city's tree stands alone in front of the City-County Building, it is not considered an endorsement of Christian faith" (Blackmun) and "[a] Christmas tree displayed in front of city hall, in my view, cannot fairly be understood as conveying government endorsement of Christianity" (O'Connor), because the Christmas tree was "not itself a religious symbol." Add to that the votes of Chief Justice Rehnquist and Justices White, Scalia, and Kennedy, who would have no problem with public display of religious symbols, and you get a Court majority for the proposition that public displays of Christmas trees don't violate the Establishment Clause (at least unless there's accompanied with something else that's more overtly religious). The six Justices also went further and said that the Christmas tree is permissible even when accompanied by a menorah; but under their reasoning, a Christmas tree standing alone would be fine, too.

I think that's right. The Christmas tree does not itself have religious meaning (as opposed to a creche, which does); and while it is associated with Christmas, so are lights on trees and eggnog, and so the Easter Bunny and egg hunts are associated with Easter. Such association does not make the tree send a message of endorsement of Christianity, just as putting lights on other trees during the Christmas seasoning or having the Easter Bunny appear at a government-run event doesn't send such a message.

But even if the Court's judgment on this was wrong, it was still a judgment of the majority of the Court the last time the Court visited the question. As a legal matter, then, government display of Christmas trees does not "impermissibly endorse Christianity," and allowing such displays preserves, rather than overturning, the legal status quo.

89 Comments

California Death Penalty Development: Judge Jeremy Fogel of the Northern District of California issued a Memorandum of Intended Decision this afternoon concluding that the current implementation of the death penalty in California is unconstitutional. According to Judge Fogel, the Constitution regulates the procedures used to carry out an execution via lethal injection, including such matters as the lighting, design, and crowdedness of the room in which the execution occurs; the recordkeeping procedures used during executions; the procedures for screening of members of the execution team; and the training and oversight of the team. California's current practices are inadequate under this standard, Judge Fogel indicated, as they create an undue risk of an Eighth Amendment violation during an execution. As this only a "Memorandum of Intended Decision," not a final decision itself, Judge Fogel gave the state of California 30 days to respond. The memorandum specifically asks the state to inform the Court whether the state plans to change its procedures in light of the memorandum.

  This issue presumably is headed for the Supreme Court eventually, and it looks like Judge Fogel's case may be the one that gets there with the most complete record. Stay tuned. Hat tip: Howard.
27 Comments

[Fernando Tesón (guest-blogging), December 15, 2006 at 5:15pm] Trackbacks
More on Political Art:

Thank you for the very interesting comments.

I stand corrected on political art being mostly on the left. I object to ALL political art.

My claim is not that political art is socially worthless. Rather, it is this: political art cannot count as evidence for the political position it tries to advance. I happen to believe that political positions should be supported by argument, not by force, deceit, or emotion. (Some have blasted me for this, but it is my view...) A work of art is not an argument.

And the issue is not merely theoretical. I have seen many young people in my own native country, Argentina, join political violence, their revolutionary conviction greatly strengthened and fueled by protest songs and other politically committed art. They were not only wrong on the merits. They are, sadly, dead.

47 Comments

[Fernando Tesón (guest-blogging), December 15, 2006 at 2:39pm] Trackbacks
Against Political Art:

A noteworthy case of discourse failure is political art. Many people regard art as a legitimate vehicle for political views. Indeed, many have insisted that artists ought to be politically committed. The aesthetic experience may raise people’s political awareness. And, if one believes in moral-political truths, it seems natural to recommend that artists convey those truths in a way people can readily understand. Thanks to the emotional power of beauty, art can, at least sometimes, help noble ideals reach the general public. Many of these works have great artistic value (Picasso's Guernica, for example), and some of them have surely contributed to worthy causes.

However, political art is a special form of discourse failure. Art is a type of concrete imagery, and as such it evokes a “fact” that may activate default theories in the audience. Those willing to challenge the political stances represented by the artifact have to overcome the suggestive power of beauty. Political paintings (say, Diego Rivera’s murals) often suggest causal connections that, for the reasons I indicated in my previous posts, permeate theories that people hold by default. Political art’s appeal to emotion usurps reasoned political argument. If you think big oil is responsible for the evils in the world, make an argument. The movie Syriana will not do. (A related puzzle: why is all political art of the left? We have answers to this too.)

Political satire is an interesting case. One reason it is particularly effective is that it generates an additional cost for those willing to challenge its purported message, for in that case the challenger becomes the “party pooper” who spoils the fun by taking the satire seriously. So comedians like Jon Stewart not only ridicule political figures or views. Whether intentionally or not, they also preempt objections to the intended political message (“Give me a break! Where is your sense of humor?”).

Many people see political art as a healthy form of social criticism. For them, consuming and appreciating political art epitomizes the critical attitude. I disagree. political art hinders critical thinking. It reinforces people’s fundamental default beliefs, and sometimes it does so by questioning their superficial beliefs. Thus, a novel may convince readers that their prior belief in the kindness of the police is wrong, and that in reality the police are henchmen of the ruling class. No doubt these readers may regard this novel as having transformed their beliefs on the matter, and in that sense political art may be seen as challenging their beliefs. At a deeper level, however, the novel may well have appealed to the reader’s default theories, for example by showing the role of the police in making some people rich at the poor’s expense – a zero-sum explanation that is inferior to explanations derived from reliable social science.

54 Comments

More on Judge Pregerson's Opinion in Carrington v. United States: Over at Sentencing Law & Policy, Doug Berman has an interesting post on Judge Pregerson's opinion Wednesday in Carrington v. United States, the case I blogged about that allowed a trial judge to reopen and resentence two long-final cases. Doug wonders why the Supreme Court might be interested in the case:
  Orin Kerr seems troubled by Carrington and apparently thinks the Supreme Court will be, too. But why? Carrington does not declare Booker retroactive (even though perhaps Booker should be), and it is not clearly unlawful.
  What is unlawful are the constitutionally problematic sentences still being served by the defendants involved in Carrington. The dissenter in Carrington and Orin and others may not be troubled by defendants still serving unconstitutional prison sentences, but what's so wrong with the Ninth Circuit seeking to provide a remedy that is permissible under the law?
  Of course, finality is an important value, but this value is always balanced against other values. If the Ninth Circuit panel in Carrington decides to strike the finality-fairness balance this way after Booker, why should the Supreme Court really care much?
  I think Doug and I agree that the key question is whether Carrington is "permissible under the law." If Doug is right that the decision is permissible under the law, then Carrington is a fine decision and should remain on the books. On the other hand, if Carrington is impermissible under the law, it's a bad decision and should be overturned. So the key question becomes, is Judge Pregerson's decision legally correct?

  In my view, the answer is clearly "no." First, Congress has enacted a statute that sharply limits when judges can modify sentences: 18 U.S.C. 3582(c) states that "[t]he court may not modify a term of imprisonment once it has been imposed" unless one of two exceptions applies. Judge Pregerson's Carrington opinion held, and as far as I can tell no one disputes, that these exceptions don't apply here. That's why Judge Bryan couldn't resentence the defendants himself: Congress has pretty directly said that he lacks that authority.

  Given this statutory ban on resentencing, the only way for Judge Pregerson to allow the resentencing was to use whatever authority the Ninth Circuit has to "recall the mandate" of its prior decision sua sponte (on its own). Recalling the mandate is kind of like calling a do-over, and there is some authority for the view that a federal court of appeals has an inherent power (albeit a limited one) to recall the mandate even after a case has been made final under statutory law. However, it turns out that there's a history between the Ninth Circuit and the Supreme Court over the scope of this power to recall a mandate. That history explains why I think Judge Pregerson's decision is incorrect, and why the Supreme Court is likely to be interested in reviewing Carrington.

  The history begins with a 1997 Ninth Circuit decision, Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997) (en banc). In Thompson, the en banc Ninth Circuit recalled the mandate in a capital habeas case involving a conviction for murder and rape. After a 3-judge panel of the Ninth Circuit had denied the habeas petition and the Supreme Court had denied cert, a majority of active judges on the Ninth Circuit sua sponte "recalled the mandate," found that the petitioner had been denied his Sixth Amendment right to counsel, and granted the habeas petition.

  The en banc opinion by Judge Fletcher (joined by Judge Pregerson) ruled that the circumstances of the case were "extraordinary," permitting the Ninth Circuit to recall its mandate. First, there had been a procedural mix-up among the Ninth Circuit judges that had accidentally blocked a vote on whether to hear the case en banc. Second, the original panel "made fundamental errors of law that, if not corrected, would lead to a miscarriage of justice."

  The Supreme Court granted certiorari and reversed in an opinion by Justice Kennedy. Calderon v. Thompson, 523 U.S. 538 (1998). Justice Kennedy characterized the Ninth Circuit's recalling of its mandate as "a grave abuse of discretion." According to the Supreme Court, this authority was much more limited than the Ninth Circuit believed in light of the tremendous interest in the finality of sentences:
  [T]he State’s interests in finality are all but paramount, without regard to whether the court of appeals predicates the recall on a procedural misunderstanding or some other irregularity occurring prior to its decision. The prisoner has already had extensive review of his claims in federal and state courts. In the absence of a strong showing of "actua[l] innocen[ce]," Murray v. Carrier, supra, at 496, the State’s interests in actual finality outweigh the prisoner’s interest in obtaining yet another opportunity for review.
  Based on these considerations, we hold the general rule to be that, where a federal court of appeals sua sponte recalls its mandate to revisit the merits of an earlier decision denying habeas corpus relief to a state prisoner, the court abuses its discretion unless it acts to avoid a miscarriage of justice as defined by our habeas corpus jurisprudence. The rule accommodates the need to allow courts to remedy actual injustice while recognizing that, at some point, the State must be allowed to exercise its "sovereign power to punish offenders." . . .
  "[T]he miscarriage of justice exception is concerned with actual as compared to legal innocence." Sawyer, 505 U.S., at 339. We have often emphasized "the narrow scope" of the exception. Id., at 340; accord, Harris v. Reed, 489 U.S. 255, 271 (1989) (O’Connor, J., concurring) ("narrow exception" for the "'extraordinary case'"). "To be credible," a claim of actual innocence must be based on reliable evidence not presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). Given the rarity of such evidence, "'in virtually every case, the allegation of actual innocence has been summarily rejected.'" Ibid.
  Now we can finally come back to Carrington. In my view, the Supreme Court would be likely to grant in Carrington because it seems like a replay of Thompson. It seems difficult to square the Ninth Circuit's vision of its power to recall the mandate articulated in Carrington with the Supreme Court's vision of that power in Calderon v. Thompson. If there is an argument for how Carrington is consistent with Thompson, I am certainly open to it, but it's hard to see what it might be (the federal/state difference might help, but it's not clear how far that can go). Judge Pregerson cites Thompson in passing, but doesn't discuss it or make an attempt to square his decision with the Supreme Court's instructions in that case. Given that, the answer to Doug's fair question — "If the Ninth Circuit panel in Carrington decides to strike the finality-fairness balance this way after Booker, why should the Supreme Court really care much?" — is that the Supreme Court has already set this balance in Thompson, and the Justices probably won't take too kindly to Judge Pregerson's ignoring their prior decision.

  One last thought. It is true, as Doug mentions, that the Ninth Circuit had some arguably creative readings of its power to recall the mandate in United States v. Crawford, a one-page order issued last year in the wake of Booker. However, my understanding is that the Justice Department chose not to file a petition for certiorari in Crawford. We don't know why, of course, but it may just be that amidst the post-Booker fallout the narrow decision in Crawford wasn't worth pursuing. If no petition was filed, then of course the Supreme Court couldn't act. I would guess that the SG's office will take a different view of Carrington: Carrington is much broader than Crawford; it's a full opinion rather than a short order; and more time has passed since Booker was handed down. Given that, I would guess that Judge Pregerson's opinion won't be the last word in the Carrington case.

Related Posts (on one page):

  1. More on Judge Pregerson's Opinion in Carrington v. United States:
  2. Carrington v. United States:
11 Comments

Israeli Court Allows "Targeted Killings":

Earlier this week the Israeli High Court of Justice held that the practice of "targeted killing" of terrorists by the Israeli military is not prohibited by customary international law. As Julian Ku explains on Opinio Juris, the opinion held that international law "does not prohibit all targeted killings of Palestinian terrorists, but that it might prohibit some such killings," and it asserts the right of Israeli courts to review the legality of such actions in the future.

It appears that the Israeli court adopted a position generally in line with that advocated by my colleague Amos Guiora, a veteran of the Israeli Defense Forces and Director of the Case Institute for Global Security Law & Policy. Amos has contended that targeted killings are permissible in certain lmited circumstances as a form of "active self-defense." Specifically, preventative strikes against known terrorists who are preparing for additional attacks, is permissible, provided that such actions are proportional, do not needlessly endanger civilians, and are the result of a process designed to limit the likelihood of mistaken identification of terrorists. This is a controversial view in international law, not least because it rejects the "law enforcement" paradigm for counter-terrorism measures.

It is important to reiterate, however, that the opinion did not give the Israeli military a blank check. Rather, it held that targeted killings as such are not, in and of themselves, contrary to international law, while leaving open the possibility that specific attacks, particularly those that are disproportionate, would violate international law. The LA Times has more on the opinion here.

Related Posts (on one page):

  1. A Moral Code for Counterterrorism:
  2. Israeli Court Allows "Targeted Killings":
25 Comments

"One Muslim Voice on the Holocaust, Unheard":

Cathy Young reports.

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Questions about the Sony Reader:

I wonder if the technologically sophisticated VC readership could answer the following questions about the Sony Reader, which I'm thinking of buying for a non-English speaking relative:

1. Does the Sony Reader have the capacity to download non-English language books? Particularly Russian-language ones.

2. If the answer to 1 is "Yes," is there in fact a significant number of Russian-language books available in a form that is compatible with the reader?

3. With respect even to English-language books, how broad is the range of available titles that can be accessed through the reader? Can, you, for example, get everything that is available through Amazon.com or other similar sites? This question is in case I want to buy one for myself too.

Thanks in advance for your help!

10 Comments

Thursday, December 14, 2006

C-Span Debate on Gun Control:

On Saturday and Monday, C-Span's BookTV will be broadcasting a gun control debate in which I participated. Here are the details:

On Saturday, December 16 at 8:00 am and at 2:30 pm and Monday, December 18 at 1:00 am Gun Control Debate with Arnold Grossman, "One Nation Under Guns" and David Kopel, "Gun Control and Gun Rights"

Description: The Denver Press Club hosts a debate on the issue of gun control. Arnold Grossman, author of "One Nation Under Guns - An Essay on An American Epidemic," argues the pro-gun control case while David Kopel, co-editor of "Gun Control and Gun Rights: A Reader and Guide" speaks for the opposing side. The debate is moderated by Cnythia Hessin, executive producer of Rocky Mountain PBS.

Author Bio: David Kopel is Research Director at the Independence Institute in Golden, Colorado. Arnold Grossman co-founded SAFE Colorado, a bipartisan anti-gun violence group, in 2000, following the Columbine school shootings. Mr. Grossman co-authored "1998" with former Colorado governor Richard Lamm.
I also wrote a lengthy review of a book, in which I argued that it was riddled with factual and legal errors, and that the book unintentionally reveals why the gun control movement in the United States has become such a failure in recent years.

27 Comments

A Common Fallacy about Atheism:

This piece by Boston Globe columnist Jeff Jacoby (whose work I generally like) is an excellent illustration of what is probably the most common fallacy in discussions about atheism - the belief that atheism necessarily leads to moral relativism:

What society loses when it discards Judeo-Christian faith and belief in G-d is something far more difficult to replace: the value system most likely to promote ethical behavior and sustain a decent society. That is because without G-d, the difference between good and evil becomes purely subjective. What makes murder inherently wrong is not that it feels wrong,but that a transcendent Creator to whom we are answerable commands: "Thou shalt not murder...."

Obviously this doesn't mean that religious people are always good, or that religion itself cannot lead to cruelty. Nor does it mean that atheists cannot be beautiful, ethical human beings. Belief in G-d alone does not guarantee goodness. But belief tethered to clear ethical values — Judeo-Christian monotheism — is society's best bet for restraining our worst moral impulses and encouraging our best ones.

The atheist alternative is a world in which right and wrong are ultimately matters of opinion, and in which we are finally accountable to no one but ourselves.

Jacoby's claim that atheism is antithetical to morality is far from unusual. As I note here, survey data shows that 51% of Americans believe that "“[i]t is necessary to believe in God in order to be moral and have good values” (thereby going even farther than Jacoby, who concedes that atheists can be "ethical human beings").

While some atheists are moral relativists, there is no necessary connection between the two beliefs. Atheists, like theists, can have strong commitments to objective views of morality based on reason, tradition, communitarianism, and so on. There is absolutely no reason why atheists can't have "clear ethical values" just as much as theists do. Indeed, most prominent atheist thinkers (consider, for example, Karl Marx or Ayn Rand) argue for very strong non-relativist views of morality. The standard form of the argument that atheism=moral relativism implicitly assumes that belief in a deity is the only possible source of moral values; but that assumption is simply wrong.

In the last paragraph of his column, Jacoby hints at a more moderate defense of the atheism=relativism equation. Perhaps atheists can have nonrelativist views of morality, but the lack of a single divine authority for moral principles leads to disagreement and a reduction in the certainty with which people hold their moral beliefs - thereby causing a widespead perception that "right and wrong are just matters of opinion." Maybe so (though I am skeptical), but theists have exactly the same problem. After all, they disagree amongst themselves about 1) what kind of God or gods exist, and 2) what the relevant deity or deities want us to do. Disagreement over moral issues between different groups of theists is every bit as deep as that between divergent secular views of morality. If the latter could persuade people that right and wrong are matters of opinion, so too could the former. Even if we limit our focus to the "Judeo-Christian" tradition to which Jacoby refers, there is still tremendous disagreement between different groups within the Christian tradition (to say nothing of the deep disagreement between Christians and Jews that the term "Judeo-Christian" is often used to elide).

Finally, it is possible to argue that, even absent any logical connection between atheism and relativism, atheists in fact are empirically more likely to be moral relativists than theists. I have not seen evidence definitely settling this issue either way. But even if the empirical claim is true, it doesn't follow that atheism is dangerous.

This is so for three reasons. First, it could be that the causation runs from moral relativism to atheism rather than the other way around. People attracted to moral relativism may become atheists as a result rather than vice versa. Second, even if the causation runs in the direction that critics of atheism posit, the harm caused by an increasing prevalence of moral relativism must be weighed against the harm caused by non-relativist, but deeply flawed views of morality. I would rather live in a society dominated by selfish moral relativists than one dominated by nonrelativist believers in Nazism, Communism, or radical Islamism. Whether increasing moral relativism is harmful depends on what values people give up to become relativist.

Finally, even if increasing moral relativism is indeed socially dangerous, there may be ways of persuading atheist moral relativists to give up moral relativism without also giving up atheism. Just as religious groups often successfully persuade theists to convert from one religion to another, it may be that some moral relativist atheists can be persuaded to become moral objectivists. Indeed, to the extent that becoming an atheist does cause people to become moral relativists, it may be because of the widespread prevalence of views of like Jacoby's. Some who conclude that God does not exist may also come to believe that there is no objective morality because they (like Jacoby) wrongly assume that the latter is a necessary implication of the former.

Thus, those who worry about the alleged trend towards moral relativism might be better advised to oppose it by emphasizing that moral objectivism is compatible with a wide range of views on religion, including atheism.

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It's Civil Unions in New Jersey (for now):

The state assembly opted to give gay couples civil unions, rather than marriage. Expect another round of litigation in the state courts arguing that the bill does not go far enough.

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Another Victory for Religious Speech Rights:

Yet another case, O.T. v. Frenchtown Elementary School Dist. Bd. of Ed., 2006 WL 3579215 (D.N.J. Dec. 11), finds that the government acted unconstitutionally in excluding a private religious speaker from a government-run program. Here, the school district was running an after-school talent show, which wasn't part of the school curriculum. The show was apparently open to all "G-rated" acts, and the context strongly suggests that the acts were seen by the audience as the performer's act, not the school's. Yet the school excluded O.T. from singing Awesome God (which I take is this song) on the grounds that the lyrics constituted religious proselytizing, and that allowing the lyrics would violate the Establishment Clause.

The court disagreed. The program, the court said, was a designated public forum for student expression; and excluding a song because it conveyed a message of advocacy for the singer's religious beliefs was viewpoint-based, and thus presumptively unconstitutional. And the court rejected the school's argument that this presumption was rebutted because allowing the song would have violated the Establishment Clause: The song would have been seen as the student's own speech, not the school's speech, and thus wouldn't be an unconstitutional endorsement of religion by the government.

It seems to me the court got it quite right. I suspect it also seems this way to the Department of Justice and to the New Jersey ACLU, both of which filed amicus briefs on behalf of the plaintiff (here's the ACLU brief).

Thanks to Allen Asch (here, in his capacity as operator of ACLU Fights for Christians) for the pointer.

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Fascinating First Amendment / Terrorism Case Now Before the Supreme Court:

My former boss, Judge Kozinski, dissented from denial of rehearing en banc in this case (U.S. v. Afshari), and I found his dissent quite persuasive; one of the defendants has petitioned for certiorari (Rahmani v. U.S. is the name of that matter), and I hope the Court agrees to hear the case.

For those who want a sense of what's going on, here's an excerpt from Judge Kozinski's dissent (some paragraph breaks added); I don't know why I didn't blog about it at the time, but better late than never.

It goes without saying that the United States government may prohibit donations to terrorist organizations.... [M]oney is fungible; if an organization engages in terrorism, it can channel money donated to it for humanitarian and advocacy purposes to promote its grisly agenda. At the same time, however, giving money to a political organization that is not engaged in terrorist activities is constitutionally protected. The determination of whether or not an organization is engaged in terrorism is therefore crucial, because it distinguishes activities that can be criminalized from those that are protected by the First Amendment.

This case concerns the manner in which this distinction is drawn. Because designating an organization as terrorist cuts off the First Amendment rights of individuals wishing to donate to that organization, the designation must meet certain constitutional standards. The Supreme Court has twice spoken to the question of how the government may go about turning what would otherwise be protected First Amendment speech into criminal conduct, the first time in Freedman v. Maryland, 380 U.S. 51 (1965), and the second time in McKinney v. Alabama, 424 U.S. 669 (1976). In both cases, the Court laid out strict rules that the government must follow, yet the designation in this case complies neither with Freedman nor with McKinney.

The net result is that Rahmani is being criminally prosecuted, and almost certainly will be convicted, for contributing to an organization that has been designated as terrorist with none of the protections that are constitutionally required for such a designation. Worse, Rahmani will in all likelihood spend many years in prison for contributing to an organization whose designation the D.C. Circuit has held does not even meet the requirements of due process. Because I believe that the prosecution in this case runs contrary to two of our defining traditions — that of free and open expression, and that of justice and fair play — I respectfully dissent from the court’s failure to correct the panel’s errors by taking this case en banc....

It is firmly established that monetary contributions to political organizations are a form of “speech” protected by the First Amendment ..... [G]iving money to a designated terrorist organization is not protected speech. But if the organization is not a designated terrorist organization, then monetary contributions to it are protected by the First Amendment — maybe not to the same degree as pure speech, but protected nonetheless. A terrorist designation is thus a type of prior restraint on speech, because it criminalizes monetary contributions that would otherwise be protected by the First Amendment.

The panel dismisses Rahmani’s First Amendment arguments with conclusory statements that the money here is being given to a terrorist organization, and is therefore a completely unprotected form of expression.... But this begs the question. The crux of the case — the issue the panel has elided in each iteration of its opinion — is the process by which the designation was made.

If the designation process does not comply with constitutional standards, then the designation is invalid and Rahmani’s donations are protected by the First Amendment. In order to determine whether that process was constitutional, we must rely on the guidance of Freedman v. Maryland, 380 U.S. 51 (1965), and McKinney v. Alabama, 424 U.S. 669 (1976).

1. “[A]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Freedman, 380 U.S. at 57. In Freedman, the Supreme Court detailed the “procedural safeguards” that must accompany prior restraints on speech, setting a high hurdle for the government to clear before a restraint can be held constitutional. Freedman concluded that “only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, [thus] only a procedure requiring a judicial determination suffices to impose a valid final restraint.” Id. (emphasis added). The panel ignores Freedman entirely, upholding a prior restraint on speech that contains not a single one of Freedman’s procedural safeguards....

For more, see the rest of Judge Kozinski's dissent, or the petition for certiorari, the government's brief in opposition, or the petitioners' reply, all available on Rahmani's lawyer's site. The site also includes amicus briefs in support of the petition from The Constitution Project (cofiled by Bruce Fein), and from Congressmen Bob Filner and Tom Tancredo on behalf of the Iran Human Rights and Democracy Caucus of the U.S. House of Representatives.

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Letting Witness Testify Veiled But Discounting the Testimony:

Several comments on the veiled witness thread suggested that the judge should have let the Muslim woman plaintiff testify velied, but discounted her testimony given his (and the other litigant's) inability to judge her demeanor. This alternative, the argument would go, does indeed put the woman at a disadvantage -- but it puts her at less of a disadvantage than dismissing her whole case would, and so it is the less restrictive means of serving the government interest in accurate factfinding. (I assume here, together with the legal system, that looking at a witness's face does advance accurate factfinding; that is certainly contestable as a factual matter, but it is a fundamental assumption of our legal system, and not one that I think the judge can disregard here.)

I at first thought that this wouldn't be feasible, and I'm still not sure that it would be, because it's not quite clear to me how the judge would implement this discounting of her testimony. I take it that he shouldn't just assume that she's lying about everything. Should he assume that she's lying -- or at least uncertain or evasive (demeanor evidence is supposed to be a cue not just to outright lies, but to these matters as well) -- about all those facts that are controverted by the other side? Only about some of those facts? If so, which ones? (To give some more concrete details, one news account reports that Muhammad "was contesting a $2,750 (£1,470) charge from a car hire company for damage to a vehicle she said was caused by thieves," so I take it the issue is whether the damage was indeed caused by thieves, assuming that the contract with the car rental company made her not liable for such damage.)

On the other hand, perhaps this isn't really that far different from a judge's dealing with a person whose face is naturally hard to read (perhaps because the person suffers from some neurological condition that gives him a flat affect). Presumably a judge would try to do as best he can in trying to figure out whether the person was telling the truth; couldn't he do the same here? (Would this suggest that the judge actually shouldn't discount the veiled witness's testimony at all?)

In any case, this struck me as an interesting matter, so I thought I'd put up a post about it and see what others have to say. Naturally, if the case were litigated solely on the testimony of others, or on documentary evidence, the matter wouldn't come up; but I assume that this issue arose chiefly because this small claims case, like other small claims cases, did rely heavily on the plaintiff's own testimony.

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A Whole New Paradigm: I was an early adopter with MP3 players with a 20GB Archos Jukebox followed by an Ipod. I ripped and burned all my CDs and made a favorites list of my all-time favs. Eventually I ruined all my all-time favs by getting tired of them. Then I shuffled my library and eventually got tired of the rest of my music as well. I don't take the time to research new music and find downloading to and syncing with a PC to be an annoyance. I can do it, but am usually too busy. So I end up listening to my Ipod less and less. I don't even use it often enough for it to break.

Then I had an idea for a gadget I wish someone would invent. Suppose we had a "wireless" Ipod-type device that would be programed by someone who knew music. You wouldn't know what they were going to play in advanced and would rely on their expertise to find the right mix. Maybe the device could have different streams or "channels" with different styles of music or even comedy. We could call this device something cool like "radio." How would you pay for it? Commercials would completely destroy the concept, so it would have to be by subscription. $10-12 per month seems about right but only if the sound is CD quality.

But there is still a problem. With this "radio" device you don't know what is playing unless there is an announcer to tell you and that destroys the enjoyment of the music. Maybe there could be a read out of song and artist, just like on my Ipod. But there is even a bigger problem. Unlike the Ipod, you don't get to "save" the new music to make into a favorites. Suppose you could save the stream to memory? Better yet, suppose you could save a song after you start listening to it if you like it, like my Tivo? Alternatively you could record a stream for a period of time for when you cannot receive the wireless signal and when you play it back, saving only the songs you like to your playlists. Maybe you could add your own MP3s from your PC to your favorites and mix them with the music you downloaded from the wireless stream. Wouldn't this be awesome?

But wait! This amazing device and service had already been invented. It is the XM Pioneer Inno, and it is smaller and lighter than my 15GB IPOD or my new Treo 680. It's marketing slogan is "hear it, click it, save it." It also works with music bought on a PC from Napster but I won't be using that feature. Because it is a satellite radio, it does not work indoors without an external antenna (which I have connected to the included home base station attached to my home stereo). But I discovered that in DC (where XM is based) there are lots of ground repeaters so it works inside my pocket when I am outside, as well as inside some airports (e.g. Logan). Plus my subscription gives me free access to XM Radio Online so I can easily listen in my office or home on my PC. The price I paid for all this goodness? $199 after rebate from Amazon.com (now it is $225) + a subscription of course & the cost of a car kit. When in the car dock it has a built-in FM modulator to play through the car audio system.

Check out the on-line demo. It is a great gift for the boomer in your life who likes new music but is too busy to follow the music scene, who does not want to go through the hassle of locating and downloading music, or who resents paying $.99 per song. It's a whole new paradigm.

(civil comments only please. Feel free to post recommendations of other really cool gift ideas that people might not have heard about yet.)
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Second-Guessing a Claimant's Religious Beliefs:

A commenter noted that the judge in the veiled litigant-witness case seemed to be second-guessing the claimant's religious beliefs in some measure. A judge can't reject a claimant's religious objection to some law because he thinks the claimant's objection is irrational, not broadly held by her coreligionists, or an unsound interpretation of her scriptures. The judge could hold that, as a matter of law, no religious exemptions are available (either because the state takes a general no exemptions view, or because denying the exemption is the least restrictive way of serving a compelling government interest). The judge could also find as a matter of fact that the claimant is insincere in her claimed religious belief; that's often a troublesome form of inquiry, but necessary for any religious exemptions regime to work. But he can't say, for instance, that this Muslim claimant should lose because most Muslims don't hold the views that this claimant says she holds.

On the other hand, I think that a judge may probe the claimant's beliefs by bringing up attitudes that the claimant's coreligionists hold, and to see if the claimant might ultimately acknowledge that she too would go along with those views. (I say "I think" because I've seen no caselaw on the subject, so this is my sense of where the broader precedents tend to point.) The line between cultural traditions and religious mandates is often unclear, and even some religious believers might at first confuse the two. Occasionally, some probing will lead the believer to sincerely acknowledge that something that she at first thought was religiously forbidden is not actually forbidden, but just unfamiliar or distasteful.

If the believer sincerely comes around to this view -- which is to say expresses a willingness to accommodate the government's interests -- the result could be a win-win situation: In this case, the court could decide the case on the merits, and the woman could testify without feeling that she's violating her religious obligations. Conversely, I don't think that a judge has an obligation to just stop questioning the moment the religious claimant raises a religious objection, and make a decision based on the claimant's initial formulation of her objection (which may be the broadest possible formulation, and broader than what the objector herself would come to after some conversation and reflection). It's true that this sort of discussion might sometimes lead to the claimant feel unduly pressured, or might lead to the judge impermissibly rejecting an objection because he finds it irrational or uncommon. But on balance, it seems that this sort of probing of the witness's beliefs is permissible.

Of course, if the believer continues to assert that she has a religious objection, because she doesn't share other Muslims' less restrictive views about the veil, then the judge has to take her beliefs as she sincerely describes them to be (unless the judge concludes that she's lying). That's what I read the judge to have done here. He tried to persuade her to accommodate the legal system's position, by explaining the rationale for the position and by pointing out that other Muslims are willing to accommodate it. But when she insisted that her religion forbade her from removing her veil, he denied the exemption request on the grounds that granting it would unduly undermine the factfinding process.

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David Duke, "Academic":

Earlier this week, Reuters reported on David Duke's participation in the Holocaust revisionism conference in Tehran. Particularly curious about Reuter's report was it's description of Duke as: "U.S. academic David Duke, a former Louisiana Republican Representative." Yet, as Jonah Goldberg observed, "it's not like he was in the U.S. Congress and it ain't like he has tenure somewhere." So what gives?

I perused Duke's website (not something I recommend) and found no mention of any "academic" pursuits, let alone employment in an academic field, other than a vague claim that he "teaches in Eastern Europe." (Teaches what? Holocaust revisionism?) Duke does have a Ph.D in History from the Ukrainian Interregional Academy of Personnel Management (MAUP), but I thought it took more than an advanced degree to make one an "academic."

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Female Judges for Female Muslim Litigants?

Some commenters on the veils in court thread asked what I thought about the veiled Muslim woman's suggestion that the case be tried in from of a woman judge. I'm pretty sure that this won't work as a general matter: In many cases, witnesses have to testify before juries, and there are obvious problems with insisting on all-woman juries as well as woman judges. But even if this proposal is limited to trials before judges, it still won't work.

First, the litigants and lawyers also generally have a right (at least setting aside cases where the witness's life may be in danger) to see the witness's demeanor; and often the litigants and lawyers will be men. And, second, I think the court system has an independent and sufficiently strong interest in treating all judges (and jurors) equally without regard to sex. I realize that some sex-based accommodations are justified under exceptions to antidiscrimination rules, for instance when a woman guard or police officer is used to do pat-down searches and especially body cavity searches of women, and a male guard or officer is used for searches of men. But it seems to me that imposing similar sex classifications for the judges -- who actually preside over cases, and who in nonjury trials decide the facts -- would pose more serious (albeit chiefly symbolic) problems for the legal system, problems that the system can and should resist acquiring.

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Senator Tim Johnson:

First, best wishes for a speedy and complete recovery to Sen. Johnson (D-SD).

Second, I've heard someone ask whether — if Sen. Johnson unfortunately proves to be incapacitated — the current Senate majority could remove him from office under the Constitution's provision that "[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members" (art. I, cl. 5, § 1). The answer is no, under Powell v. McCormack, 395 U.S. 486 (1969): "[I]n judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution," namely "age, citizenship, and residence." In judging the elections and returns each House is of course also allowed to decide whether the person got a majority of the vote. But the clause does not authorize exclusion for misconduct (the next clause, which provides that "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member," does so, though it requires a 2/3 vote rather than a majority) or for perceived incapacity.

(Thanks to Hugh Brady for pointing this out.)

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Transcript in Case That Was Dismissed Because Plaintiff Muslim Woman Refused to Unveil To Testify:

This case was in the news in mid-October, but I just got a scanned version of the transcript, and I think it's much worth reading. I have a PDF here, but I thought I'd include the full text:

Ginnah Muhammad d/b/a Sisters of Second Chance v. Enterprise Rent-A-Car, Small Claims Hearing before Judge Paul J. Paruk, Hamtramck, Michigan, Oct. 11, 2006:

THE COURT: Hi, good morning, everybody. I am going to handle a small claims matter first and then I'll do a couple of landlord-tenant cases. Is it Ginnnah Muhammad and Enterprise Rent-A-Car? Who is who? I need one person from Enterprise. Come on up and stand over here on the right-hand side, please, for me.

Are you Ginnnah Muhammad?

[MUHAMMAD]: Yes, sir.

THE COURT: You need to stand over there. Ms. Muhammad, did my court officer talk with you about taking your veil off?

[MUHAMMAD]: Yes, sir.

THE COURT: Okay, and what is your suggestion or what are your thoughts on that?

[MUHAMMAD]: I said, "No, I can't."

THE COURT: Well, let me explain to you why I think you have to do it and then you tell me why you don't have to do it and then we'll try and make a decision as to how to proceed.

[MUHAMMAD]: Yes, sir.

THE COURT: One of the things that I need to do as I am listening to testimony is I need to see your face and I need to see what's going on and unless you take that off, I can't see your face and I can't tell whether you're telling me the truth or not and I can't see certain things about your demeanor and temperament that I need to see in a court of law, okay, so you tell me why is it that you don't want to take your veil off.

[MUHAMMAD]: Well, first of all, I'm a practicing Muslim and this is my way of life and I believe in the Holy Koran and God is first in my life. I don't have a problem with taking my veil off if it's a female judge, so I want to know do you have a female that I could be in front of then I have no problem but otherwise, I can't follow that order.

THE COURT: Okay. Well, no, I don't have a female judge. I'm the Judge that's here, okay, and second of all and I mean no disrespect to your religion, but wearing a veil I don't think is a religious thing -

[MUHAMMAD]: Well, that's your preference, sir.

THE COURT: — I think it's a custom thing and –

[MUHAMMAD]: That's your preference.

THE COURT: First of all, hold on. Hold on. It's not my preference. I have no clue about any of this information, okay --

[MUHAMMAD]: That's what I'm saying.

THE COURT: — but this has come up in my courtroom before, and in my courtroom before I have asked practicing Muslims and the practicing Muslims have told me that, "No, Judge, what I wear on top of my head is a religious thing and what I wear across my face is a non-religious thing. It's a custom thing."

[MUHAMMAD]: Well, that's not correct.

THE COURT: Well, this is what they have told me and so that's the way that I am running my courtroom and that's how I have to proceed.

[MUHAMMAD]: And I respect you, Your Honor, and --

THE COURT: Fantastic.

[MUHAMMAD]: — I would like to ask for a change of venue.

THE COURT: Well, you can't have a change of venue. You're the one who decided to file the lawsuit, okay --

[MUHAMMAD]: Yes, sir.

THE COURT: — and so that's where we are today. So you have a couple of options today as far as I am concerned. You can either take it off and you can give me the testimony and after the hearing is all done and over with and if you want to put it back on, I don't have any problems with that but if, in fact, you do not wish to do it, then I cannot go forward with your case and I have to dismiss your case.

[MUHAMMAD]: Thank you, sir. You have a great day.

THE COURT: Okay. Well, first of all tell me what you wish to do.

[MUHAMMAD]: I wish to respect my religion and so I will not take off my clothes.

THE COURT: Well, it's not taking off your clothes. All I am trying to do is ask you to take off the part that's covering your face so I can see your face and I can hear you and listen to you when you testify, and then you can put the veil back on. That's all I am asking to do, ma'am.

[MUHAMMAD]: Well, Your Honor, with all due respect, this is part of my clothes, so I can't remove my clothing when I'm in court.

THE COURT: Okay.

[MUHAMMAD]: Thank you.

THE COURT: You're welcome, ma'am.

Okay. Enterprise, case is dismissed.

My sense is that the judge reached the right result, and reached it the right way. Being unable to testify in court without violating one's religious beliefs is indeed a very serious burden on religious believers: If this situation became widespread, members of that religious group would be easy marks for a variety of predators.

At the same time, the factfinder's ability to observe a witness's face when she is testifying is generally seen by our legal system as important to assessing the witness's candor. Perhaps people overestimate their ability to judge truthfulness based on facial expressions. But our legal system largely rests on the assumption that factfinders are indeed able to helpfully evaluate the witness's demeanor. So long as that's true, then it seems to me unfair to the other side to carve out an exemption from the witness's duty to show her face in court.

Note that Michigan courts have interpreted the state constitution as mandating religious exemptions from generally applicable laws when (1) the law substantially burdens a religious observer's practice, unless (2) the law is the least restrictive means of serving a compelling government interest. My view is that there is a substantial burden here, but that requiring testimony with the witness's face exposed is indeed the least restrictive means of serving a compelling interest.

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Supreme Court Economic Review:

The new Washington & Lee Law School Journals Ranking is out and I'm pleased to note that the Supreme Court Economic Review ranks second among law and economics journals according to their methodology (the rankings use a citation-based methodology, as I understand it). We trail only JLS and are ranked ahead of, among others, JLE, ALER, and JLEO.

Submission and other information are available here. Ilya and I are now the editors of the journal so SCER's ranking is sure to decline precipitously in coming years, but in the meantime, if you have a peer-review worthy law and economics paper we hope you will consider submitting it to us.

I couldn't get a direct link to the ratings output to work--if you want to see the whole list it appears you need to run the search under the "Subjects Box" and then click the dates you want.

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Monastic annals:

For research for a paper I'm working on, I got a book of Monastic Annals from the library. It's an 1869 volume containing the annals from the Osney monastery and from the Worcester priory. The part I was looking for, in the Worcester priory annals, said the following:

(show)

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The Secrets of Exam Grading: Over at Concurring Opinions, Dan Solove reveals to the world the secrets of how law professors grade exams. Definitely worth checking out.
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Wednesday, December 13, 2006

Who's Number 2? All I care to know about the Bowl Championship Series (BCS) is that it destroyed the tradition of post-season bowl games, especially the only one I really cared about: the Rose Bowl in which the winner of the Big Ten is supposed to play the winner of the Pac 10. Unfortunately, the tradition also includes underdog Pac 10 teams smoking the Big Ten powerhouse of the year, but that is beside the point. The only other rival for recent mindless trashing of a century of priceless affection and good will is Federated Stores replacing Marshall Field's with Macy's (see here), but that is also besides the point. So what is the point? The point is this column, Who's Number 2? about the controversial choice of Florida instead of Michigan to play Ohio State for the national championship. I found this analysis interesting:
But this year's debate over the merits of the BCS has exposed a more basic flaw, the faulty premise that underlies the entire system. The BCS was created in 1998 with the stated goal of of pitting the nation's top two football teams against each other in a championship game. Michigan partisans, then, are outraged that their team isn't getting another chance to take on Ohio State. The Wolverines are the second-best team in the country, they say. Shouldn't that guarantee them a spot in the title game?

No. The fact that the Wolverines are probably the second-best team in the country doesn't mean they've earned the right to play in the national championship game. In fact, it means the exact opposite: Michigan's No. 2 status is why they shouldn't be playing for the title.

Playoff systems are designed to determine, in a fair manner, which is the single best team in a particular sport. Their purpose is not to pit the two finest teams against each other in a season-ending game. The Yankees and Red Sox do not play annually in the World Series. The Indianapolis Colts will never be given a chance to play the New England Patriots in the Super Bowl. When the two best college basketball teams in the country face off, as they routinely do, in a Final Four semifinal or even in the round of eight, does anyone think that the loser deserves a rematch?

Take this example: Does anyone think the Seattle Seahawks were the No. 2 team in the NFL last year? No. Likewise, will anyone think the NFC champion who makes it to this year's Super Bowl is the second-best team in football? Of course not. Will the best team in the NFL still win the Super Bowl? Yes. Even if it's an NFC team! . . .

Do we know if Florida is the second-best team in the country? Of course not. Here's what we do know: Michigan is not the best. How do we know that? By the traditional criterion: They scored fewer points in a football game than Ohio State did. The only team that has the "right" to play in the BCS championship game is the best team, Ohio State. And the only teams that should be scratched without question are teams that have already been determined to be "not the best," like Michigan.
(civil comments only, including those by Michigan fans.)
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Crisco Cops in Cleveland:

Ohio's statewide smoking ban took effect this week. Now, the Cleveland Plain Dealer reports, the Cleveland City Council is endorsing a ban on trans-fats.

Related Posts (on one page):

  1. Universal Cuts the Trans-Fats:
  2. Crisco Cops in Cleveland:
  3. No Trans-Fats in NYC:
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Carrington v. United States: A lot of people have talked about the Supreme Court's small docket; Judge Harry Pregerson of the Ninth Circuit is actually doing something about it. He handed down an opinion today in Carrington v. United States that has "Destination: One First Street" written all over it.

  This consolidated case involves two defendants, Carrington and Tillitz. Carrington was sentenced in 1990, and Tillitz in 1998, both by Judge Robert Bryan, a district court judge in Seattle who, like many trial judges, really didn't like the federal Sentencing Guidelines that at the time were binding law. At the sentencing hearings for both defendants, Judge Bryan expressed the view that the Guidelines were bad. In 1990, he said that they were "bad law" because they diminished his "authority" to sentence as he saw fit, and in the 1998 hearing he added that he thought the Guidelines were unconstitutional (for reasons not explicit).

  After the Supreme Court ruled in Booker that the Guidelines were not mandatory, each defendant filed a motion before Judge Bryan requesting a new sentencing hearing without the binding effect of the Guidelines. Judge Bryan denied relief, but then sent the cases to the Ninth Circuit with an unusually personal opinion asking the Ninth Circuit to let him resentence these two defendants. Judge Bryan wrote to the Ninth Circuit:
  Trial judges, more than anything, want to do the right thing. We understand our obligation to follow the law, but deeply—and even desperately—hope that the law will lead to justice. If we are part of an injustice, we want to set it right, even if it involves a great deal of extra work. To quote Gerry Spence: "[S]ometimes a judge doesn't know how to get justice. . . . [T]he judge has to just sit up there and watch justice fail right in front of him, right in his own courtroom, and he doesn't know what to do about it, and it makes him feel sad. . . . Sometimes he even gets angry about it." Gerry H. Spence, Of Murder and Madness: A True Story, 490 (1983). This judge, sad and a little angry, would welcome an opportunity to resentence these defendants to a constitutional and legal sentence.
  In the decision handed down today, Judges Pregerson and Noonan (with Callahan dissenting) ruled that Judge Bryan's feelings about these cases created "extraordinary circumstances" that should allow Judge Bryan to reopen the cases and resentence the defendants without the sentencing guidelines. Specifically, Judge Bryan had expressed "frustration" at the guidelines at the original sentencing, and also had made an "impassioned plea" — even quoting famed trial lawyer Gerry Spence! — to be able to resentence the defendants in his 2005 opinion. According to Judge Pregerson, this combination was sufficient to reopen the old cases and permit resentencing:
  These two cases have weighed on Judge Bryan’s conscience eight years and sixteen years, respectively, after the original sentences were imposed. They compelled him to the point that he would sua sponte request that this court recall its mandates and that he would voluntarily assume the additional responsibility involved in re-sentencing these defendants. We believe that the number of cases in which a district court will feel so strongly about the need to resentence is small, making these cases truly extraordinary.
  Our interest in the finality of judgment is not so strong that we would not allow a district court judge the opportunity to remedy what the judge considers to be an "injustice" and to re-sentence a defendant to a sentence that is just and proper.
  I can understand why Judge Bryan wants to resentence these defendants, and I can understand why Judge Pregerson would want to let him do so. But there are lots and lots of cases like this in the pipeline, and whether they should be reopened would seem to a question of whether Booker is retroactive rather than whether a trial judge's opinions are strongly-enough expressed to make that particular sentencing "extraordinary." Surely it can't be the law that a defendant is entitled to resentencing decades later if the trial judge really wants to resentence him.

  George Will recently commented that "[t]here should be two Supreme Courts, one to reverse the 9th U.S. Circuit Court of Appeals, the other to hear all other cases." With the one Supreme Court running low on business these days, I'm sure they will appreciate the chance to take a closer look at this one (assuming the full Ninth Circuit doesn't get there first).

  Thanks to Howard for the link. (Update: I have fiddled with the end of the post a bit in response to comments.)
40 Comments

"Plagiarism and 'Atonement'":

I had an op-ed on this little scandalette in yesterday's Wall Street Journal, and the Journal people were kind enough to let me post it here:

Two nurses, both aspiring novelists, helped tend British soldiers during World War II. Briony, the protagonist of Ian McEwan’s award-winning novel “Atonement,” is fictional. The late Lucilla Andrews is real: She became an author, pioneering romantic “hospital fiction,” and also wrote a memoir of her war years.

Therein lies the latest plagiarism scandalette to hit the news, sparked by an article in the British press. To be a credible character in a historical novel, Briony had to do the things wartime nurses did, and see the things they saw. It is thus no surprise that Mr. McEwan read Andrews’s book when researching his own; and several passages from his book strongly resemble passages from Andrews’s memoir.

“Our ‘nursing’ seldom involved more than dabbing gentian violet on ringworm, aquaflavine emulsion on cuts and scratches, lead lotion on bruises and sprains,” wrote Andrews (to give one example). “In the way of medical treatments, she had already dabbed gentian violet on ringworm, aquaflavine emulsion on a cut, and painted lead lotion on a bruise. But mostly she was a maid,” wrote Mr. McEwan.

Plagiarism? Legally actionable? Ethically reprehensible? Bad manners? Or good research, needed to produce accurate historical fiction?

Plagiarism is easy to condemn but often hard to define. This is partly because the legal rules differ sharply from the ethical ones, and the ethical rules in scholarship, journalism and fiction differ from each other. And it is partly because the rules for using the facts uncovered by writers of history—whether memoirists, historians or contemporaneous journalists—must be different from the rules for using the original phrases that the writers created.

Let’s start with the law. It generally bans not plagiarism as such, but rather copyright infringement. (Trademark law might play a role in extreme plagiarism cases, but not in the typical ones.) And copyright infringement is both broader and narrower than what most people see as “plagiarism.”

For instance, an author can be held liable under copyright law even when he credits the original source from which he copies. The law concerns itself more with protecting authors’ ability to profit from their works than with ensuring credit where credit is due. So if I translate Mr. McEwan’s novel into Russian without his permission, trumpeting Mr. McEwan’s authorship and saying that I am merely the translator, I am a copyright infringer, though not a plagiarist.

On the other hand, an author is not liable for copying the facts that others have discovered, regardless of whether he gives credit. Copyright law doesn’t give authors exclusive rights to facts, because such a monopoly would undermine debate, scholarship and literature. If I write a scholarly legal article that uses without attribution historical facts uncovered by another scholar, my failure to attribute is a serious ethical breach—but not copyright infringement.

So on to professional ethics, which properly differs depending on the profession. Academics have the most stringent obligations. If I write an academic work using, without attribution, facts uncovered by another historian, I commit two sins: First, I falsely claim originality for my own work. Second, I wrongly deny a scholar credit that is important to the scholar’s reputation. The academic must therefore scrupulously attribute those facts that others have uncovered, and the long and heavily footnoted format of academic books and articles makes this easy.

But the rules for newspaper articles that mention historical matters are different. Such articles usually don’t claim originality of historical research; no reader would assume that snippets of history in an article about modern-day Iraq stem from the journalist’s own archival research. The articles do not generally deny historians due professional credit: Scholars get professional respect chiefly based on other scholars’ use of their work, not based on citations by reporters. And because space is short, and good journalism often relies on multiple historical sources, newspaper articles can’t be expected to acknowledge each historian whose work the journalist used.

The rules for novels are in between. Novelists are similar to journalists, but they do have space at the end of the book to briefly acknowledge the historical works on which they rely, without distracting from the novel’s flow. If you’ve relied substantially on another’s work, acknowledging this is the kind thing to do. Omitting the acknowledgment probably isn’t unethical; it’s not a lie, or the denial of the credit needed for success in the original author’s profession. But it isn’t very nice.

Yet what about copying not just facts, but also another author’s words, either literally or in a close paraphrase? Would a general acknowledgment at the end of the book be enough to justify this? Or is such copying impermissible, at least unless you expressly note it using quotation marks, or by writing “as Lucilla Andrews said”? In academic work, the answer is simple: Quote the original, and insert a footnote at the place you quote it. But what about a novel?

A historical novel, to be accurate, must borrow those words needed to accurately reproduce the historical facts, even when the facts were uncovered by others. If nurses treated ringworm by dabbing gentian violet on it, that’s what they did, and novelists must be able to say so. Nor can a novelist note the borrowing using quotation marks and footnotes, as they would interrupt the novel’s flow. Writers who strive for factual accuracy must thus remain free to closely paraphrase the factual accounts of others.

On the other hand, when the historian or memoirist depicted the facts in a colorful way that she herself created, the particular words shouldn’t be copied, at least without express acknowledgment. A historical novelist is responsible for creating his own colorful descriptions.

So where does this leave Mr. McEwan? Likely not guilty on any of the counts, if the account in the newspaper that first broke the story (the Nov. 26 Daily Mail) is thorough. Mr. McEwan borrowed facts, and those words that accurately described the facts. He is not guilty of copyright infringement, or of taking another’s original expression without specific notation. And while he did rely on Andrews’s autobiography, his acknowledgments page noted being “indebted” to Andrews and her book. Any such acknowledgment could always be made more prominent; but it appears to have been prominent enough.

More broadly, we should recognize that not all use of another’s words requires detailed acknowledgment. Words represent facts; and facts, once revealed, are there to be used, including in novelists’ unfootnoted prose.

19 Comments

Reading the Tea Leaves: People who try to predict what the Supreme Court will do often say that they are "reading the tea leaves." But what does it mean to read tea leaves? Fortunately, a website hosted by the tea industry has the answer.
13 Comments

Fighting the E-Mail Scammers: I found this pretty amusing (hat tip The Influence Peddler):
We all know those Nigerian E-mail scams — we need your help securing $100 million, all we need is an American bank account and a small fee. Most of us, being normal people, delete them. Robert Hickam, aka Barrister Jubril, is not a normal person. He replies. This is his story.
My favorite "project" so far is
The one that started it all. But Body by Jake is also pretty funny too.

Please note that responding to scammers can be a very risky business. I would not do it myself. Another scammer baiting website offers the following warning (along with useful tips and tricks)..
WARNING

Please remember that these people are CRIMINALS and should be treated as such. Under no circumstances must you enter into any communications with these people unless you feel you are adequately prepared to deal with them.

Under NO CIRCUMSTANCES give them ANY real private information about yourself. These guys may appear dumb and clueless, but I suspect it wouldn't be so funny if you were to come face-to-face with one of them, although I'll be the first to admit the chances of this happening are astronomical - unless of course you are dumb enough to fly over to meet them in person, in which case you need to be sectioned ASAP!

The tips below are for INFORMATION ONLY. 419eater.com cannot be held responsible for what you decide to do with the information. If you are unsure of what you are doing please LEAVE WELL ALONE!
But these websites allow you to enjoy the sport of scammer baiting while sitting safely on the sidelines.

(civil comments only please)

Update: By coincidence, the following new thematic twist on scamming managed to evade the GMail antispam filter:

Greetings,
With due respect, pardon me for this letter. This is a genuine matter of utmost importance and immense mutual benefit which must be kept highly confidential. It is with genuine interest and trust that I have contacted you.

I am Captain Smith Scott of the US Marine Force on Monitoring and Peace keeping mission in Baghdad, Iraq. On the 20th day of November 2006, we were alerted on the sudden presence of some Terrorists camping in a suburb not too far from Karbala here in Iraq. After immediate intervention, we captured three (3) of the Terrorists, twenty-six (26) were killed leaving seven (7) injured.

In the process of torture they confessed being rebels for late Ayman al-Zawahiri and took us to a cave in Karbala which served as their camp. Here we recovered several guns, bombs and other Ammunitions including some boxes among which two contains suspected nuclear weapons, one filled with hard drugs (cocaine) and the other four to my amazement contain some US Dollars amounting to $10.2M. After I and two of my junior intelligent officers counted them, I however instructed them to keep this in high secrecy.

I am in keen need of a “Reliable" and "Trustworthy” person who would receive, secure and protect these boxes containing the US Dollars for me until my assignment elapses here in Iraq. I assure and promise you will not regret this deal. However feel free to negotiate what you wish to have as your percentage in this business. Assure me of you keeping this in utmost secrecy to protect my job with the US Monitoring and Peace Keeping mission. I will be waiting to hear from you as soon as possible to proceed.

If you are interested to work with me in good faith and honesty, get back to me. Endeavor to let me know your decision rather than keep me waiting.

Thanks in anticipation of a favorable response.

Sincere regards,
Captain Smith Scott.
US MARINE FORCE

21 Comments

The Ninth Amendment Means What it Says: Whenever I blog about the Ninth Amendment, there are always respondents offering contrary interpretations. In response to my Rule of Law column, In RE: Life or Death, in Saturday's Wall Street Journal, several commenters disputed the relevance of the original meaning of Ninth Amendment to a federal regulation restricting access to experimental drugs to terminally ill patients. So did two contributors to National Review On-Line, Ed Whelan and Matthew Franck. While their interpretations are not unreasonable, I believe they do not line up with the available evidence. Ed relies on Tom McAffee's entry in The Heritage Guide to the Constitution.

Resolving this dispute over original meaning highlights the limitations of blogging and the need for long-form legal scholarship. The competing models of original meaning must be carefully defined and then comprehensively compared with the available evidence of original meaning to see which model or models is supported and which is undercut by the available evidence. There I do consider McAffee's interpretation and show how it is directly contradicted by the evidence.

Fortunately, I have done just this is a newly published article in the Texas Law Review, The Ninth Amendment: It Means What it Says. You can download it here. Here is the abstract:
Although the Ninth Amendment appears on its face to protect unenumerated individual rights of the same sort as those that were enumerated in the Bill of Rights, courts and scholars have long deprived it of any relevance to constitutional adjudication. With the growing interest in originalist methods of interpretation since the 1980s, however, this situation has changed. In the past twenty years, five originalist models of the Ninth Amendment have been propounded by scholars: the state law rights model, the residual rights model, the individual natural rights model, the collective rights model, and the federalism model. This Article examines thirteen crucial pieces of historical evidence that either directly contradict the state law and residual rights models, undercut the collective rights model, or strongly support the individual natural rights and federalism models. Evaluating the five models in light of this evidence establishes that the Ninth Amendment actually meant at the time of its enactment what it appears now to say: the unenumerated (natural) rights that people possessed prior to the formation of government, and which they retain afterwords, should be treated in the same manner as those (natural) rights that were enumerated in the Bill of Rights. In short, the Amendment is what it appears to be: a meaningful check on federal power and a significant guarantee of individual liberty.
I will add one cautionary note to avoid confusion. The article primarily concerns the original meaning of the text. It is not directly about judicial review. Unsurprisingly, none of the amendments in the Bill of Rights directly mentions judicial review, although the Ninth Amendment comes very close, given that it provides a rule of construction ("shall not be construed") that, presumably, is directed at all branches and levels of government, including the courts. If you are interested in the issue of judicial review you should look at my piece, The Original Meaning of the Judicial Power.

(civil comments only please)

Related Posts (on one page):

  1. The Ninth Amendment Means What it Says:
  2. Judicial Deference & the Rights to Life and Health:
63 Comments

Tuesday, December 12, 2006

4-Year-Old Sexually Harassing a Teacher's Aide:

The Waco Tribune-Herald reports:

[A] Nov. 13 letter from La Vega Independent School District stated [DaMarcus Blackwell's] son, who was 4 years old at the time, was involved in “inappropriate physical behavior interpreted as sexual contact and/or sexual harassment” after the boy hugged a teacher’s aide and “rubbed his face in the chest of (the) female employee” on Nov. 10.

The letter also stated Blackwell’s son, who Blackwell requested not be named in this story for privacy reasons, spent the day in in-school suspension (ISS) as punishment for the incident.

Blackwell has since filed a complaint with the district.

In turn, the district changed the offense to “inappropriate physical contact” and removed references of sexual contact or sexual harassment from the boy’s file, according to a subsequent letter from the district.

Still, Blackwell said the change isn’t enough....

44 Comments

The Way Government Works!?:

If you're one of those people who think that libertarians are just greedy, cruel-hearted, selfish people who hate the poor, and you just can't fathom how they think, you should read this article from Sunday's Washington Post (hat tip: Barone blog via Instapundit). The article details how the dairy lobby ganged up on an entrepreneur to who undercut their prices, and put him out of business.

When I read an article like this, I think, "yes, that's a typical example of how the government works." It's more or less the lens through which I, and I'm sure most libertarians, view the government; social Democrats of my acquaintance seem to have a generally much more benign perspective on government activity, focusing on the "good" that government does in providing aid to the needy and whatnot. (And, if they focus on a story like the Post story at all, they will see it primarily as about the need for campaign finance reform, not as a story about how laws are made in a democracy.)

My point is not to start a debate over which perspective is closer to the truth, but simply to suggest that whether when one thinks of government one thinks of, say, the government preventing grandma from starving by providing her with Social Security, or of the government forcing poor consumers to pay extra for milk to benefit millionaire farmers is almost certainly a good predictor of where one's political sympathies lie. And it has nothing to do with hating, or loving, the poor.

In my own case, growing up amidst the incredible corruption, legal and illegal, of New York City government and politics [one example: neighborhood teenagers from upper-middle-class families who got $12 an hour City jobs supposedly reserved as "job training" for "underprivileged teenagers in the late 1970s, when the city had just emerged from near bankruptcy, because their parents helped out the local Democratic Party] had a significant impact on my perspective on the proper role of government. Perhaps if I had been raised elsewhere, or if my family had benefited from this corruption, as so many real estate developers, attorneys (by getting assigned to be trustees by courts, etc.), and many others did, my outlook would have developed differently.

136 Comments

That Car Gets Worse Mileage than You Thought:

The Environmental Protection Agency has revised the formula for calculating official fuel mileage ratings to try and make them more representative of actual performance, the New York Times reports. The changes are intended to account for how car owners actually use their vehicles, as this effects fuel economy. The result is lower estimated miles-per-gallon for 2008 vehicles.

he system was last adjusted in 1984, when the E.P.A. cut the city values by 10 percent and the highway values by 22 percent. This one cuts the estimate of highway mileage another 8 percent, on average, and city mileage up to another 25 percent beyond the 1984 cut. Generally, the new formula narrows the gap between small cars and bigger vehicles, with small-car fuel economy estimates falling by more than the estimates for sport utility vehicles and other larger vehicles.

Hybrid vehicles will take some of the biggest hits, according to the agency, because the new standards include use of heaters and air-conditioners. Most gas-electric hybrids shut down their engines at low speeds, and run on electric batteries, but if the vehicle occupants have turned on the air-conditioner or heater, the engine may not shut down.

Despite what the EPA's best efforts, it remains the case that "actual mileage may vary."

8 Comments

This precious stone:

In Richard II, Act 2, Scene 1, Shakespeare has John of Gaunt say:

This blessed plot, this earth, this realm, this England,
. . .
Is now leased out, I die pronouncing it,
Like to a tenement or pelting farm:
England, bound in with the triumphant sea
Whose rocky shore beats back the envious siege
Of watery Neptune, is now bound in with shame,
With inky blots and rotten parchment bonds....

John of Gaunt continues:

Why, cousin, wert thou regent of the world,
It were a shame to let this land by lease;
But for thy world enjoying but this land,
Is it not more than shame to shame it so?
Landlord of England art thou now, not king....

Does anyone know what program of leasing John of Gaunt is referring to?

27 Comments

Tremendous Victory for the Second Amendment in Ohio:

A few minutes ago, the Ohio Senate voted 21-12 to override Republican Governor Bob Taft's veto of a bill to reform Ohio's gun laws. The Ohio House had previously voted 71-21 to override the veto of House Bill 347. Because both houses achieved the necessary 3/5 majority, the bill will become law in 90 days.

Today's vote is the first time that the Ohio legislature has overridden any veto since 1986, when a line-item budget veto was overridden. It is the first time since 1977 that a veto of an ordinary bill has been overridden.

The bill makes a variety of changes to Ohio's Shall Issue law for concealed handgun licenses. It explicitly prohibits local governments from creating no-carry zones, except in places where state law already forbids carryings. The bill also removes the requirement that concealed carry permitees must, when driving, keep the handgun in plain view in the car, or in a locked container.

Even more significantly, the bill eliminates over 80 anti-gun local ordinances, including bans on cosmetically-incorrect self-loading firearms (so-called "assault weapons") in Cleveland, Columbus, Dayton, and Cincinnati. Like the vast majority of states, Ohio does not have an "assault weapon" ban, but Ohio has had more cities with local bans than has any other non-ban state.

As I detailed in a 2003 Issue Backgrounder for the Independence Institute, almost all states have some form of preemption law which restricts or prohibits local gun laws. The strong, ccomprehensive preemption law enacted in Ohio is the model used in about half of the states with preemption.

Some other features of the bill:

The bill begins: "The individual right to keep and bear arms, being a fundamental individual right that predates the United States Constitution and Ohio Constitution, and being a constitutionally protected right in every part of Ohio..."

The bill bans all local gun control laws which do not duplicate state or federal law. Litigants who bring a successful suit under the bill are entitled to attorney's fees.

Localites may still enact zoning laws which: 1. Ban gun stores in residential or agricultural areas. 2. Impose laws about hours of store operation, as long as those same laws are imposed on other non-gun stores.

In practical effect, the Ohio bill is the most significant roll-back of gun control that has ever been enacted by a state. Preemption laws swept the country in the 1980s, after Morton Grove, Illinois, banned handguns. In most state legislatures, the bills were intended to prevent future local gun bans, since there were few local bans that were in effect. I am not aware of any other state where a preemption law has wiped out so many local ordinances which were already on the books.

Among the Senators voting for the override was Democrat Marc Dann, the Attorney General-elect of Ohio. I knew Marc when he ran that Gary Hart campaign in Michigan in 1983-84, for which I was a volunteer. He is a good man with limitless energy.

75 Comments

My draft paper,

"Privatization and the Law and Economics of Political Advocacy," was recently listed on the list of Top Ten recently listed papers in labor law, as well as Top Ten recently listed papers in labor economics (public policy and regulation subsection). (I know what you're thinking: Labor??? But the paper is heavily about public-sector unions, so it has a substantial overlap with labor policy.) Here's the abstract:

A common argument against privatization is that private providers, motivated by self-interest, will advocate changes in substantive policy. In this Article, Professor Volokh evaluates this argument, using, as a case study, the argument against prison privatization based on the possibility that the private prison industry will distort the criminal law by advocating incarceration.

This "political influence" argument applies at least as well to public provision: Government agencies, too, lobby for changes in substantive law. In the prison industry, for instance, it is unclear whether private firms advocate incarceration to any significant extent, but public guard unions are known to do so actively.

Moreover, adding the "extra voice" of the private sector will not necessarily increase either the amount of pro-incarceration advocacy or its effectiveness. Prison privatization may well reduce the political power of the pro-incarceration forces: Because advocacy is a "public good" for the industry, as the number of independent actors increases, the largest actor's advocacy decreases (since it no longer captures the full benefit of its advocacy) and the smaller actors free-ride off the largest actor's contribution. Under some plausible assumptions, privatization decreases advocacy, and under different plausible assumptions, the net effect of privatization on advocacy is ambiguous.

The argument that prison privatization distorts criminal law by fostering pro-incarceration advocacy is thus unconvincing without a fuller explanation of the mechanics of advocacy. The use of the political influence argument in other privatization contexts may also be theoretically unsound, to the extent it does not consider whether privatization reduces preexisting levels of public sector advocacy.

Download it while it's hot! And, if you're so inclined, please give me feedback for later drafts.

UPDATE: In all, I'm on the Top Ten papers in:

as well as the Top Ten recently listed papers in:

3 Comments

Does a 1686 Charter Create a Right to Jet Ski in the Hamptons?: In 1686, the charter that King James II gave to settlers of the eastern tip of Long Island gave inhabitants of the area the right to "enjoy without hindrance" recreational activities like "fishing, hawking, hunting and fowling." 320 years later, jet-skiing enthusiast John Lagana is arguing that this term of the charter makes it illegal for the town of East Hampton, New York to ban jet skis. The New York Times has the story here.

  I have absolutely no background in this area, but I would imagine that the Declaration of Independence severs any binding effect of contractual conditions in such charters: the Declaration states that "these United Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do." I would think that this means that the state and its municipalities are not required to follow the terms of the King's charter (assuming it applies here, which is at best uncertain).

  Are any VC readers familiar with this area of law? If so, chime in in the comment thread.

  Hat tip: Above the Law.
42 Comments

[Fernando Tesón (guest-blogging), December 12, 2006 at 9:32am] Trackbacks
Moral Deliberation:

Thank you for the many excellent commments.

I would like to address one theme in particular. Some have suggested that public deliberation can still be successful because many political issues are moral in nature, so ignorance about social theory (e.g., economics) doesn't matter as much as I claim it does. This is a very popular view among political philosophers such as Rawls and Gutmann-Thompson, for whom the main political disagreements are moral in nature.

This view is also wrong, I believe, and we devote a chapter in the book to show why. Most (but not all) social disagreements are empirical, not moral. In fact, a major form of discourse failure is the attempt to overmoralize politics. Many people, especially politicians, try to take the high moral ground in order to conceal the fact that their proposal is counterproductive. For example, when you point to supporters of the minimum wage that it causes umemployment, they reply that the minimum wage is required for moral reasons (say, to avoid exploitation).

Similarly, someone who publicly defends protectionism often treats it as a moral matter: "we must save the jobs of our workers," thus concealing the fact that millions of consumers and poor foreign producers will be hurt. Unfortunately, scholars are not above this either. We call this move The Moral Turn, and it is a major form of discourse failure. It is Kantianism gone awry. It is also lazy, because the supposed morality of the position exempts the speaker from complex causal inquiry.

Yet some political disagreements are genuinely moral (abortion for example.) We propose The Display Test: a position is genuinely moral when the speaker can accept, without embarrassment, its bad consequences. For example, I am prepared to publicly accept, without embarrassment, that criminal defendants should have a number of rights, even if someone shows me that implementing those rights increases crime. If the speaker cannot concede without embarrassment the bad consequences of her proposal, then she is perpetrating discourse failure.

62 Comments

Monday, December 11, 2006

Your Money or Your Land II - The Pacific Legal Foundation Amicus Brief in Didden v. Village of Port Chester:

Recently, I blogged about the amicus brief I filed on behalf of myself and seven other legal scholars urging the Supreme Court to hear the case of Didden v. Village of Port Chester. Didden is a Second Circuit decision that upheld the taking of property that was condemned because the owners refused to pay a private developer the $800,000 he demanded as the price for avoiding the use of eminent domain.

The Pacific Legal Foundation, a prominent public interest law firm, has now also filed an amicus brief in the case, also urging the Supremes to hear it. Unlike our brief, which focuses on the question of whether or not this kind of pretextual condemnation is permissible under the Public Use Clause of the Fifth Amendment, the PLF brief focuses on the separate question of whether the Constitution permits the government to use its regulatory powers to engage in "exactions" that force property owners to pay money to either the government or private parties as the price of retaining their rights. Both issues are important, and hopefully both will be considered by the Court.

For a helpful short synopsis of the exaction issue raised by Didden, see this post by PLF attorney and leading eminent domain expert Tim Sandefur, author of the PLF amicus brief.

Related Posts (on one page):

  1. Your Money or Your Land II - The Pacific Legal Foundation Amicus Brief in Didden v. Village of Port Chester:
  2. Your Money or Your Land: Didden v. Village of Port Chester - An important Post-Kelo eminent domain case:
26 Comments

Victim of Partisan Persecution--Not:

Regular readers of this blog know that the ABA Council of the Section of Legal Education, which is responsible for establishing accreditation standards for American law schools, has been under attack on a variety of fronts. First, last Winter the Council pushed through hastily- and ill-considered "diversity" standards, that invited law schools to both violate the law and to admit students unlikely to succeed in law school and on the bar. Second, the American Law Deans Association, led primarily by deans of the more "academic" law schools, has criticized the ABA's micromanaging of law schools, such as its insistence that librarians, clinical faculty, and legal writing faculty receive tenure or job security akin to tenure. Finally, legal education innovators such as the Massachusetts School of Law accuse the Council of using accreditation standards to prevent upstarts from finding ways to lower the cost of legal education, at the expense of bloated law school bureaucracy and underworked professors.

However, judging by a story in the Chronicle of Higher Education, the Council may be dismissing much of this criticism as simply "payback" for the ABA's stands against Bush Administration policy.

William R. Rakes, chairman of the accrediting council, told the Education Department panel that he was now suffering for many of the public stands that the bar association has taken in opposition to the Bush administration.

"I am aware there have been disagreements with the administration over judicial appointments and certain administration policies," said Mr. Rakes, a lawyer in Roanoke, Va. He pointed out, however, that the bar has no oversight of his council, "and we have no input into the public positions they take."

Mr. Rakes has made a lot of impressive noises about improving the accreditation process, and indeed potentially reconceiving it from scratch. I therefore sincerely hope this statement, which was obviously taken out of a much longer series of remarks, does not reflect his general attitude toward the criticism the Council has received.

Because I've written on the subject, I've heard many complaints about the ABA's accreditation standards from deans, professors, and others, and I've never heard any of the critics relating their position in any way to the ABA's political stances on separate, unrelated matters outside the Council's purview. Playing the political martyr card, if that's what Rakes indeed did, may or may not be good political strategy, but it certainly won't clean up the mess the Council on Legal Education has made of the accreditation process.

15 Comments

State Constitutional Rights to Bear Arms:

I'll be on Cam Edwards & Company (NRAnews.com) tonight; it's also on Sirius Channel 144, likely some time around 10 PM Pacific. I'm mostly discussing state constitutional rights to bear arms; my forthcoming short Texas Review of Law & Politics article on them is here.

1 Comments

[Fernando Tesón (guest-blogging), December 11, 2006 at 12:09pm] Trackbacks
Deliberative Failure:

It is pleasure to be invited to blog at the V.C. Thanks to Eugene and Ilya for thinking of me. I would like to talk about political deliberation. According to an influential literature that cuts across philosophy, political science, and law, the moral legitimacy of laws is enhanced when it is preceded by robust public deliberation. Of course, deliberation is not a sufficient condition of legitimacy (you need right process as well) but, in a democracy, those who lose in the political process have less reason to complain if the majority’s decision was preceded by robust deliberation. Proponents of this view, deliberative democrats (DDs, for short) claim that the more the public deliberates, the better the chances are of getting things right. Deliberation, for them, has epistemic virtues.

I think this view is mistaken, and so my co-author and I argue in our recent book. Public deliberation takes us further away from the truth. The reason is that the public is ignorant about social theory. Becoming properly informed is a necessary condition for deliberation having any epistemic value, yet becoming informed is costly (this is why the public is rationally ignorant.) Take tax cuts. As readers of this blog know, tax policy is highly complex: tax cuts often stimulate the economy, but this is not always so. Knowing the exact effect of tax cuts requires knowledge of complex economic propositions which the public cannot be expected to learn. So on one end, the public is rationally ignorant. But on the other end, politicians, knowing this, feed into that ignorance for electoral purposes. That’s why the “debate” over Bush’s tax cuts was never about economics. It was a debate about whether he was trying to help his rich friends. The democrats tried to convince the voter that this was the case, because the voter understands this dynamic of zero-sum interaction: here they go again, the rich taking from the poor. But the government did not make a serious economic argument for the tax cuts either: it tried to convince the voter that he (and not the bureaucrat in Washington) could make a better spending decision. So: the public holds theories by default that are vivid (and often mistaken). Reliable social science, instead, provides opaque explanations that are harder to apprehend. This perverse dynamics produces a phenomenon that we call discourse failure. In public deliberation, people will say things that are traceable to truth-insensitive cognitive processes. Predictably, people will mostly say false things in public. It follows that, contrary to the claim by DDs, public deliberation will not bring us closer to the truth.

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Reinhardt Reversed in Buttons Case: Today the Supreme Court handed down its opinion in Carey v. Musladin, reversing the decision by Judge Reinhardt (surprise!) that had granted federal habeas relief to a murder defendant on the ground that the victim's family wore buttons with pictures of the deceased during the trial. The decision was unanimous as to the result, but there were three very short opinions concurring in the judgment (by Stevens, Souter, and Kennedy) in addition to the brief majority opinion by Justice Thomas.
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Housing Market Update: Are Prices Finding a Bottom? And Housing Bleg:

Tolls Brothers builders last week reported that the D.C.-area housing market, which was the first to collapse, seems to be finding a bottom; my wife and I have noticed that houses in Arlington suddenly seem to be selling, at least if they are priced right; and data from the MRIS shows sales in Northern Virginia picking up, although there are still fewer sales than there are new homes coming on the market.

Does this mean that prices, at least in the D.C. area, are near a nominal bottom? Or is this just, as true housing bears suspect, the calm before the storm (aided by a sudden dip in interest rates), just before the market gets flooded with new inventory in Spring 2007? We shall see.

Speaking of the sudden increase in sales, I was all set to rent a single family house walking distance to the Ballson metro, but the day I was going to sign the lease, the owner got an acceptable offer to sell and took it. The house had been on the market for months, but of course a buyer decided to put an offer in just when I was about to sign a lease. We have some other options, but it can't hurt to ask: if any readers know of a three bedroom townohouse or single-family house for rent, walking distance to an Orange line or close-in red line metro, six months to a year lease, looking for very responsible tenants, you can email me at deliot at sign aol dot com

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Climate Forecasts To Be Trimmed?

The UK Telegraph reports that the forthcoming report of the UN's Intergovernmental Panel on Climate Change will report there is greater certainty about the connection between anthropogenic emissions of greenhouse gases and global temperature, while offering a slightly reduced estimate of human impact on global climate.

The UN Intergovernmental Panel on Climate Change says there can be little doubt that humans are responsible for warming the planet, but the organisation has reduced its overall estimate of this effect by 25 per cent.

In a final draft of its fourth assessment report, to be published in February, the panel reports that the level of carbon dioxide in the atmosphere has accelerated in the past five years. It also predicts that temperatures will rise by up to 4.5 C during the next 100 years, bringing more frequent heat waves and storms.

The panel, however, has lowered predictions of how much sea levels will rise in comparison with its last report in 2001.

Climate change sceptics are expected to seize on the revised figures as evidence that action to combat global warming is less urgent.

Scientists insist that the lower estimates for sea levels and the human impact on global warming are simply a refinement due to better data on how climate works rather than a reduction in the risk posed by global warming.

UPDATE: Tim Lambert explains why he thinks the Independent is mistaken.

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Prof. Fernando Tesón Guest-Blogging:

I'm delighted to say that Prof. Fernando R. Tesón, the Tobias Simon Eminent Scholar at Florida State University College of Law, will be guest-blogging this week on the problem of deliberative failure in modern democracies.

Prof. Tesón is, among other things, the author of Humanitarian Intervention; An Inquiry into Law and Morality (3rd ed. 2005), coauthor with Guido Pincione of Rational Choice and Democratic Deliberation: A Theory of Discourse Failure (2006), and one of the few libertarianish international law / foreign relations scholars in the American legal academy.

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Sunday, December 10, 2006

Sarcasm Is Not an Argument: In the comment thread about Judge Sarokin's post on the Padilla case, commenter "Carl Levin" (most definitely not this Carl Levin) tries to use sarcasm to express the view that the people who think Padilla has been treated poorly are ignoring how dangerous he is. I think Levin's comments illustrate a lesson: sarcasm may be fun for its author, but it tends to be a really poor means of persuading someone who does not already agree with you.

  The problem with sarcasm is that it pokes fun at the other side without actually making an argument. If you happen to agree with the speaker's view already, this can be pretty entertaining: you don't need an argument, so you enjoy the affirmation of how smart you are and how dumb the other guy is. But what if you don't already agree? Well, in that case sarcasm doesn't tell you very much except about the nastiness of the speaker. The sarcastic comment rather suspiciously avoids addressing the merits, and is more likely to turn off the undecided than persuade them.

  Let's take a look at Levin's argument, which I have cut and pasted from his comments (not in their entirety, but close). Recall that Judge Sarokin's post expressed concern with the way that Padilla has been treated. Levin responds:
Boy am I glad to see that someone is finally becoming the voice of reason and shouting it from the rooftops. This guy Padilla, you know, he was just misunderstood. His character was defamed because people have been saying that he wanted to detonate a radiological bomb in a big city, and really, nobody has anything solid on him. We should let him go, and give him a job at Los Alamos.

And what's really shameful about his trip to the dentist at taxpayer expense is that he had to wear shackles and goggles. When I go to the dentist at taxpayer expense, I wear loafers and occasionally carry a pair of bifocals, and even a guy who was planning to detonate a radiological device in a big city should be afforded the same kind of care. After all, he's in our custody and the least we can do is make him feel comfortable.

You know, really one of the nicest things in the world that people have ever discovered is how to take a few ounces of radiological waste and pack it on the outside of some conventional explosives and then plant it someplace in a big city, like right next to a fountain or a fire hydrant, or drop it from a small aircraft, detonate it, and force hundreds of thousands of people to evacuate while billions of dollars are spent to clean it up. Why, Padilla could have put one of those right outside the entrance to the NYSE or at the Mercantile Exchange in Chicago and it would have been an incredible gift to all of us. That's why Judge Sarokin is so correct about the abomination about him being "prejudged" as an "enemy combatant."

Yup, just like [critics of the Bush Administration] say. I agree completely. The charges are baseless and even the first charges couldn't be proved. Therefore we should let him go. I'll see you in my moon suit.
  I think it's safe to assume that Levin's view is that Judge Sarokin is not fully recognizing the the threat that Padilla poses; Levin makes that argument by taking on the voice of one who thinks Padilla is not only not a threat at all, but actually "an incredible gift." The hope, I gather, is that we will see how obviously silly it would be to think that, and we will then associate that silliness with the position that Judge Sarokin actually took.

  But imagine that you're undecided of what you think of the Padilla situation. On one hand, you figure Padilla is probably pretty dangerous; on the other hand, you might want some proof of that beyond the President's say-so. In that case, how persuasive is Levin's string of comments? Not very, I would think. The comments poke fun and make the other side look silly, but they don't actually address the debate. My guess is that for a typical undecided reader, sarcasm like that is probably more likely to push them to the other position rather than bring them aboard your own.
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Knowing your Sunnis from your Shiites - Political Ignorance on the House Intelligence Committee:

Incoming House Speaker Nancy Pelosi was almost certainly right to decide against appointing former impeached federal Judge Alcee Hastings as Chairman of the House Intelligence Committee. However, Representative Silvestre Reyes, her new choice for the job, seems remarkably ignorant about the basics of Middle East politics - the central focus of American intelligence efforts in the current conflict. As Jeff Stein shows in this Congressional Quarterly article, Reyes doesn't understand the difference between Sunni and Shiite Muslims, and doesn't know which sect Al Qaeda belongs to:

Al Qaeda is what, I asked, Sunni or Shia?

“Al Qaeda, they have both,” Reyes said. “You’re talking about predominately?”

“Sure,” I said, not knowing what else to say.

“Predominantly — probably Shiite,” he ventured.

He couldn’t have been more wrong.

Al Qaeda is profoundly Sunni. If a Shiite showed up at an al Qaeda club house, they’d slice off his head and use it for a soccer ball.

That’s because the extremist Sunnis who make up al Qaeda consider all Shiites to be heretics.

Later in the article, we learn that Reyes is also unaware of the fact that the Lebanese terrorist group Hezbollah is Shiite (an orientation that underpins their alliance with Shiite Iran, which provides most of their weapons and funding).

As Stein showed in this earlier article, congressional ignorance about the Sunni-Shiite split isn't confined to the Democrats, but is definitely bipartisan. For example, Senator Trent Lott, showing his typical insight and sensitivity, said in September that Sunnis and Shiites "all look the same to me" (quoted in the CQ article). Stein also showed that many Republican members of the Intelligence committee are as much or even more ignorant than Reyes is.

Much of my academic work deals with the dangers of political ignorance in the general public (e.g. here and here). However, the ignorance of elected officials may be just as dangerous.

In both cases, I suspect that the immense size, scope, and complexity of government is part of the problem. As I argued in the two articles linked above, it's hard for the average voter, with his limited time and effort, to keep track of more than a tiny fraction of all the government activity out there. The same seems to be true for the average congressman. It's not hard to understand the basics of the Sunni-Shiite split. However, a congressman who has to spend his time doling out pork to dozens of different constituencies, dealing with massive omnibus spending bills covering every subject under the sun, adding to the equally massive Federal Register of regulations, and overseeing hundreds of different federal agencies, can easily overlook the need to learn basics of Middle East politics. Indeed, members of Congress (even those who sit on the Intelligence Committee) probably have a much greater incentive to be knowledgeable about pork in their districts than about Middle East politics. Knowing about the former is more likely to be important to their reelection prospects.

There is no easy cure for political ignorance in Congress. I suspect that reducing the size and scope of government would help a lot by enabling Congressmen to focus on a narrower range of issues that they would then have time to study in greater depth. In the meantime, however, I hope that both Democratic and Republican leaders will try to appoint people to the Intelligence Committee who have at least a minimal knowledge of the people our intelligence agencies are supposed to be studying. A person who doesn't know that Al Qaeda is Sunni shouldn't be allowed anywhere near the Committee, much less be appointed Chairman.

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Demographics of VC Readers:

The Quantcast website has an interesting profile of the demographics of VC readers here. Hat tip: Tom Smith.

I. Findings that don't surprise me.

VC readers are disproportionately male, relatively to the internet average.

VC readers are disproportionately highly educated (people with graduate degrees).

II. Findings that do surprise me.

The relatively high percentage of Hispanic readers (25-30% more than the internet average).

The comparatively low percentage of white and Asian readers (below average in both cases).

The age profile of readers is older than I would have expected (age 45-54 is the best represented demographic).

III. Data that I wish Quantcast had, but doesn't.

It would be very interesting to know the ideological breakdown of the readership. Social science research shows that most people prefer to read commentary from viewpoints they agree with, and prefer to avoid that which comes from other parts of the political spectrum. That would predict that we have a mostly libertarian and fusionist/conservative readership. On the other hand, at least judging by the comments, the VC may have a larger proportion of liberal and leftist readers than most libertarian and conservative websites do. However, judging the overall readership by the commenters is a tricky business because commenters may be unrepresentative of the readership as a whole for a wide variety of reasons. For example, people who disagree with a post may be more likely to comment on it than those who agree.

It would be helpful to have the absolute numbers for many of Quantcast's categories, rather than just percentages relative to the "average" website.

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Judge Sarokin Joins the Blogosphere: H. Lee Sarokin served as a United States District Judge for the District of New Jersey from 1979 to 1994, and was a Judge on the U.S. Court of Appeals for the Third Circuit from 1994 until he retired in 1996. And more importantly for our purposes, he has just started a blog, appropriately named X-Judge. His first post, The Constitution and a Trip to the Dentist, is here.

  Hat tip: Former Sarokin clerk Eric Muller.
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Judicial Deference & the Rights to Life and Health: Yesterday, I had an op-ed entitled In Re: Life or Death in the Wall Street Journal on the issue of judicial deference (available here for 7 days). It addresses the following question: When the fundamental rights of life and health are at stake, should judges defer to Congress or to "the people themselves"? This issue is raised in two pending lawsuits involving the decisions of patients and their state-licensed physicians, who are supported in their decisions by either the results of Phase I clinical trials for safety or by a substantial body of medical authority. Here is an excerpt describing the cases.
Much discussion of "judicial restraint" or deference overlooks a crucial question: deference to whom — the legislature or the individual? This fundamental question is posed by two potentially landmark cases.

In Abigail Alliance v. von Eschenbach, a three judge panel of the D.C. Circuit Court of Appeals ruled that, when a drug passed Phase I trials establishing its safety, a terminally ill patient has a right to try the drug before its efficacy is established, provided the patient has no other FDA-approved drug available for treatment. However, two weeks ago the circuit granted the government's motion for an en banc rehearing before all the members of the court. . . .

The natural rights to life and health are also at stake in the "partial birth abortion" cases that were argued to the Supreme Court in October. The Eighth and Ninth Circuit Courts of Appeals both held the federal ban on partial birth abortion was unconstitutional because it lacked an exception for the health of the mother. While this procedure is highly controversial when performed late term, the ban applied throughout the entire pregnancy. Moreover, the statute allows even late term use of the procedure to protect the woman's life (the very same right to life at issue in Abigail Alliance).
Guess which form of judicial deference I favor.

(Civil comments only please.)

Related Posts (on one page):

  1. The Ninth Amendment Means What it Says:
  2. Judicial Deference & the Rights to Life and Health:
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