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Saturday, December 23, 2006

Why the Libertarian Party is bad for libertarianism:

In this column, Bruce Bartlett explains why the Libertarian Party is bad for the cause of libertarianism. He concludes that the LP "must die for libertarian ideas to succeed." I have held a similar view for years. More precisely, while I think that libertarian ideas can achieve some success even in spite of the LP, they would have more clout without it.

In a "first past the post" electoral system (one where legislative seats go to whichever party has the most votes in a district), third parties cannot achieve any significant success unless their supporters are highly concentrated geographically to a much greater extent than American libertarians are. Although recent studies suggest that 10-15 percent of American voters have significant libertarian leanings, this leverage is not enough to support a viable third party, even if the LP were much better run than it is and actually managed to mobilize a large fraction of these people behind it. This fact dooms LP efforts not only in presidential elections (as Bartlett points out), but also in congressional and most state and local races as well. As Bartlett forcefully argues, the main effect of the LP is diverting the energies of some libertarian activists and donors away from more productive activities.

Some LP defenders argue that even if the Party doesn't have any chance of winning, it can at least help educate the public about libertarian ideas. However, there is little if any evidence that the LP has actually had any success in this task over its 35 year history. Those libertarians who have succeeded in spreading libertarian ideas - people like Milton Friedman, Ayn Rand, and the Cato Institute - have done so without any LP affiliations, and indeed have tried hard to work with the two major parties. Whether fairly or not, the mainstream media and academic world are not going to pay much attention to ideas emanating from a tiny third party that has no chance of winning any elections; therefore, the LP's educative potential is unlikely to be much greater than its electoral potential.

If we had a proportional representation electoral system, like many European countries and Israel, a separate libertarian party would make excellent strategic sense. The party (if better run than the dysfunctional LP) could command 10-15% of the vote, thereby winning roughly that percentage of legislative seats, and would be a potential part of a ruling political coalition. A libertarian party might also make sense if one of the major political parties were on the brink of collapses and the libertarian party stood a chance of taking its place (as the Republican Party displaced the Whig Party in the 1850s). However, in the real world, the US is unlikely to move toward proportional representation and neither major political party is likely to collapse anytime soon. Therefore, the cause of libertarianism will be better off without a separate Libertarian Party.

UPDATE: Several commenters suggest that the LP's lack of success is due more to the poor quality of its candidates and campaign operatives than to the structure of the political system. I agree that many of the LP's leaders have had mediocre political skills, at best. However, this is itself in large part a consequence of electoral structure. Skilled, ambitious politicians and operatives are unlikely to join a party which has no real chance of winning and therefore cannot provide them the prospect of successful political careers. In countries with PR electoral systems, such as Germany, New Zealand, and Switzerland, parties with libertarian ideologies have had leaders as good or better than those of other parties and have enjoyed a measure of electoral success.

82 Comments
Court Voids EPA NAAQS Rule:

On Friday, a unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit invalidated the Environmental Protection Agency’s rules implementing the new 8-hour National Ambient Air Quality Standard (NAAQS) for ozone (aka “smog”). The EPA adopted the 8-hour ozone NAAQS under the Clinton Administration. The controversial standard, upheld by the Supreme Court in Whitman v. American Trucking Associations, tightened the ozone standard from 0.12 parts per million (ppm) to 0.08 ppm, while lengthening the time period over which ozone measurements are averaged from one to eight hours.

In South Coast Air Quality Management District (SCAQMD) v. EPA, various organizations challenged the EPA’s “Phase One” regulations implementing the new NAAQS as being either too lenient or too stringent. In the end, the D.C. circuit agreed with environmentalist organizations that portions of the EPA’s plan were too lenient and constituted impermissible “backsliding” under the CAA. Specifically, the Court found the EPA lacked the discretion to adopt a more permissive timetable for compliance with a revised NAAQs than thatspecifically outlined for the ozone NAAQS in force when the CAA was last amended in 1990 and found that the EPA’s decision to allow states to withdraw provisions of their state air pollution control plans.

The Washington Post covered the decision here.

3 Comments

Friday, December 22, 2006

Was Your Old Team Better?

Some friends and I used to debate which college basketball programs produced the best professional basketball players. The typical argument would center on which school's active almni would produce the best current NBA team. we found this interesting because some caoches and programs have clearly been better, over time, at producing wining college teams than pro-caliber players and vice-versa. Given the difference in the college and pro games, and the number of players at each level, this should be expected.

With the trade of Allen Iverson from the Philadelphia 76ers to the Denver Nuggets, I've been pondering something similar about NBA teams: For which teams is the assembled quality of former, yet still active players better than the current roster? As a Philadelphia fan, this is something of a depressing exercise, as it is relatively easy to assemble a team of former 76ers that would trounce the current team — indeed, this might have been possible even before the Iverson trade. Is this just an artifact of the rate at which players switch teams? Or (as I've contemplated) is the Philly front office just been that bad?

17 Comments
So Long, Southern Appeal:

Stephen "Feddie" Dillard closes up shop at SA.

Taxes in Arlington, VA:

I can't let 2006 end without noting my outrage that my home county of Arlington, Virginia, has seen fit to raise the personal property tax on vehicles from 4.4 to 5% of value. The stated rationale is the need to provide property tax relief. Hello! Property values in Arlington have more than doubled in the past six years, and property taxes have risen along with the increase in values. Arlington has cut the property tax rate a bit, but is still taking in far, far more in property tax revenues than it did just a few years ago. If Arlington couldn't survive on its property tax revenues at the height of the greatest residential real estate boom in area history, I really wonder how the country government going to handle its finances once the decline in residential real estate values starts showing up in property tax assessments.

48 Comments
Did the Public "Accept" Unlimited Federal Commerce Clause Authority?

In a recent post and comments, co-blogger David Bernstein and Judge Michael McConnell debate the question of whether a majority of the public has "accepted" the nearly unlimited federal power to engage in "economic" regulation reflected in cases such as Wickard v. Filburn and, most recently, Gonzales v. Raich, and whether they would have been willing to support a constitutional amendment giving Congress virtually unlimitede regulatory authority. It so happens that I presented some data on this question in a 2003 article in the William & Mary Law Review. The data strongly suggests that, during the New Deal era when the transition to the modern view of the Commerce Clause took place, the majority of the public opposed unlimited congressional power of this type. Here's an excerpt (citations available in the article itself):

In 1936-37, Gallup conducted three surveys asking respondents whether they supported a constitutional amendment to give Congress expanded power to regulate industry and agriculture,the fundamental question at issue in New Deal constitutional change. In a January 1936 survey, Gallup asked: “Would you favor or oppose an amendment to the Constitution transferring to the Federal Government the power to regulate agriculture and industry?” Forty-three percent of respondents answered “yes,” while a strong majority of 57 percent said “no.” In a similarquestion asked in December 1936, Gallup surveyed respondents as to the issue of : “Would you favor an amendment to the Constitution giving Congress the power to regulate agriculture,commerce, industry, and labor?” Once again, a majority (51%) said “no,” while 42% answered yes and seven percent expressed no opinion....

In March 1937, Gallup asked if respondents would “favor an amendment to the Constitution giving congress greater power to regulate industry and agriculture.” This question differs from the previous two in that it posits a potentially much more modest increase in federal regulatory power. Instead of asking about giving Congress “the power to regulate” industry and agriculture, which implies complete power over these subjects, it merely suggests granting Congress regulatory power “greater” than that which it currently possesses. Not surprisingly, this more modest grant of power was supported by a much higher percentage of respondents than the broader one. Fifty-eight percent of respondents in the March 1937 survey said that they favored the proposed amendment, while 42 percent said that they were opposed. Nonetheless, as Barry Cushman points out, it is significant that 42 percent may have opposed any broad increase in federal regulatory authority at all. This suggests that much of the opposition to increased federal power expressed in the two 1936 surveys was quite deeply rooted.

(pp. 625-26 of the published version of the article).

I should emphasize that there is no doubt that the majority of the public in the 1930s favored increasing federal regulatory authority beyond pre-New Deal levels. But that, of course, is not the same thing as favoring virtually unlimited federal power over "economic" affairs.

What about public opinion since the 1930s? We cannot know for sure, since to my knowledge there is no recent polling data directly on point. Nonetheless, since at least the 1960s, majorities have consistently said that the federal government has too much power. Most recently, in polls conducted during this fall's elections, 54% said that government is "doing too much" that should be left to individuals and businesses, while only 37% said that government is doing too little. Such views are not logically incompatible with a belief that the Constitution should be interpreted to give Congress virtually unlimited power to regulate "economic" activity. For example, voters might believe that Congress has this power, even though it shouldn't, or might want government to do more in the economic field, but less overall. The second conjecture is partly contradicted by the survey cited above, which found that 51% said that government should do "more" to promote "traditional values," which implies (in conjunction with the overall result that a majority believes that government is doing too much) that the government activism on economic issues is more unpopular than on "social" ones. As for the first, I doubt that most of the general public rigorously distinguishes between constitutional considerations and policy ones. At the very least, however, the survey data seems to cut against Judge McConnell's contention (quoted by David) that the virtually limitless post-New Deal interpretation of congressional Commerce Clause power has been "accepted by the nation."

It goes without saying that decisions like Wickard and Raich might be correct even if the majority of the public does not "accept" them. The apparent absence of public support, only undermines those justifications for the decisions that rely on the idea that unlimited federal regulatory authority is supported by a broad public consensus.

UPDATE: Some commenters ask why it should matter whether a majority of the public supports an unlimited congressional commerce power or not. As I said in the original post, I myself do not believe that the popularity of a particular interpretation of the Constitution has much bearing on its correctness. However, many scholars and jurists disagree. Many (including apparently Judge McConnell) contend that courts should hesitate to reverse even a flawed constitutional decision if that decision has, over time, come to command widespread public support. Other scholars, such as Bruce Ackerman, argue that broad popular support for revision of the Constitution during a "constitutional moment" (which, he believes, the New Deal was), justifies a change in constitutional interpretation even if there has not been a formal constitutional amendment. The lack of strong popular support for decisions such as Wickard and Raich is important from the standpoint of several widely accepted theories of constitutional interpretation, even though it may not matter much from a pure textualist or originalist point of view.

Related Posts (on one page):

  1. Did the Public "Accept" Unlimited Federal Commerce Clause Authority?
  2. McConnell (and Me) vs. Breyer:
  3. McConnell vs. Breyer:
54 Comments
McConnell (and Me) vs. Breyer:

Judge Michael McConnell's critical review of Justice Breyer's recent book Active Liberty overlaps in some ways with my own critique of the same book, recently published in the Northwestern Law Review. But, interestingly, the similarities are probably outweighed by the differences. Although I agree with most of Judge McConnell's points, and he might agree with many of mine, our divergent academic interests led us to focus on somewhat different issues in our respective reviews. McConnell's review and mine came out at about the same time and I didn't have the chance to see his piece before submitting my own. Here's an excerpt from the abstract to my review:

Justice Stephen Breyer's new book, Active Liberty: Interpreting Our Democratic Constitution, is an important contribution to the longstanding debate over the relationship between democracy and judicial review. Breyer argues that judicial power should be used to facilitate citizen engagement in the democratic process . . .

Part II shows that Breyer's claim that judges should explicitly weigh consequentialist considerations in making decisions may lead the judiciary well beyond its field of competence. This point is dramatically illustrated by the sometimes superficial treatment of democracy in Justice Breyer's own book, which ignores tensions between different conceptions of democracy and often fails to consider relevant empirical evidence.

I also contend that a sounder judicial approach to democracy would look more favorably upon judicial limits on the power of the federal government in order to foster federalism. Such efforts could, at least at the margin, strengthen the federal government's accountability to voters by limiting the impact of political ignorance. They could also impose accountability on government by strengthening citizens' ability to vote with their feet instead of just at the ballot box.

Part III assesses Breyer's critique of originalism. While the Justice is right to point out some key flaws in originalist jurisprudence, the force of his critique is weakened by his failure to make crucial distinctions. Breyer's analysis conflates textualism and originalism. Yet these two modes of interpretation are distinct and we could coherently embrace one while rejecting the other. Many of Breyer's criticisms of originalism do not necessarily apply to textualism. Breyer focuses primarily on what scholars call original intent originalism, which seeks to divine the specific intentions of the Framers. He largely ignores the more compelling (and today more widely accepted) approach of original meaning originalism, which holds that judicial interpretation should be based on the generally understood public meaning of the Constitution's words at the time of enactment.

Ultimately, Justice Breyer is right to claim that the judiciary may have a valuable role in promoting democracy. But his prescriptions on how it should achieve that goal are far less compelling.

UPDATE: I have added a link to Judge McConnell's review essay.

2 Comments
Allodial:

If you own land in Arkansas, Minnesota, or Wisconsin, rest secure in the knowledge that the land is expressly "declared to be allodial" by the state constitution. Ark. Const. art. 2, § 28; Wisc. Const. art. 1, § 14; Minn. Const. art. 1, § 15 ("are allodial" rather than "are declared to be allodial"). It may be igneous, or sedimentary, or metamorphic. It may be alluvial or illuvial (though likely not effluvial). But in any case, it's allodial.

20 Comments
Louis Farrakhan as "The Charmer":

In the Comments to my earlier post on Harry Belafonte, Glenn W. Bowen mentioned that Louis Farrakhan was also a calypso singer in his youth as "The Charmer."

I was not aware of that fact, but sure enough, you can hear "The Charmer" here.

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Blogs:

Are blogs bad? Or are they good? Well, are books bad, or are they good? How about newspapers? Conversations?

Some blogs are good, some are bad. A few provide very good reports of breaking specialty news (e.g., How Appealing). Some provide very good expert commentary on topics that few journalists know much about (e.g., Language Log). Some provide very good commentary by thoughtful people (e.g., Virginia Postrel's Dynamist), even outside relatively technical areas. Some provide high-quality selection services, pointing readers to interested sources they might otherwise have missed (e.g., InstaPundit and GeekPress). The overwhelming majority are of no interest to me or to most people — but that's true of books, too, and you don't see me ranting about how books are all tripe or all boring (even though most of them are).

Now different media do have systemic pluses and minuses; but those pluses and minuses are often overstated, and often too readily but incorrectly aggregated into an asserted net plus or minus. Consider something as simple as accuracy: Yes, newspapers sometimes offer some editorial checking of the author's work; blogs generally don't. But in practice, newspaper articles are almost never systematically fact-checked. (Some magazines fact-check, but to my knowledge nearly no newspapers do.) Occasionally an editor or someone else will catch an author's error, but pretty rarely. And on the other hand, many blogs are written by people who are much more expert in the field than the typical journalist; surely that contributes to accuracy.

Likewise, the typical newspaper article is much more carefully edited by the author himself than is the typical blog post. On the other hand, it's much easier to correct errors in a blog post after the fact, which lets bloggers work in feedback not just from their own editing or their editors' editing, but also from a large group of often highly knowledgeable readers.

So accuracy ends up turning less on the medium, and more on the particular characteristics of the institution and the author: Is the author really knowledgeable on the subject? Is the publisher (whether a blogger or a newspaper/magazine running a site where corrections are possible) willing to promptly put up corrections? Is the author trying hard to be objective?

True, if you asked me whether I'd put more trust in (1) a randomly selected article from a randomly selected newspaper or (2) a randomly selected post on the same topic from a randomly selected blog, I'd probably choose the newspaper. I imagine that the average newspaper writer has somewhat more training in accurate writing, and feels somewhat more pressure to be accurate, than the average blogger.

But I don't read either randomly selected blogs or randomly selected newspapers, and neither does anyone else. And if you ask me whom I'd trust more on coverage of sentencing law and policy, Sentencing Law and Policy or the New York Times, I'd surely choose the blog, since it's written by one of the nation's foremost experts on sentencing law and policy. More broadly, if you ask me whom I'd trust more on news analysis (not so much raw news, but news analysis) related to topics that I'm interested in, I'd probably say bloggers rather than newspapers: On those topics I care about, I'm familiar with who the best bloggers are, and on balance those best bloggers tend to be more expert (and more aware of the danger that if they err, they'll be promptly contradicted) than reporters at even the best newspapers.

And isn't that the way we deal with most media? We love books not because the average book is great, but because we've found the best authors (from our perspective), and their work is great. Likewise, judging blogs by the "average blogger" or even by "most bloggers" makes as much sense as condemning books as boring because 99% of all books will surely bore you.

17 Comments
ACLU Demands That County Put Up Christmas Tree To Match Menorah:

Yup, that's what the Maui News reports. The threat apparently worked.

The county had earlier let a Jewish group put up a menorah. The ACLU argued (likely correctly, given existing Establishment Clause precedent) that a stand-alone menorah would be seen by reasonable observers as a religious symbol, while a menorah coupled with a Christmas tree — which the Court has (in my view, quite correctly) held to be a secular symbol — would be seen as a permissible secular celebration of the holiday season.

One can certainly criticize constitutional doctrine that calls for such decisionmaking (though if you want to criticize it, you might want to read the leading case, Allegheny County v. Greater Pittsburgh ACLU, first). But given this doctrine, the ACLU's position seems quite sound.

The rabbi, to his credit, doesn't object to the county's putting up the tree. "I think it's wonderful," he reportedly said. "It's just in the spirit of holiday festivities, and educating the community about different celebratory events."

Thanks to Allen Asch for the pointer.

47 Comments
Bailey on Rifkin on Cities:

Ronald Bailey was not too impressed with the Rifkin op-ed on urbanization and the environment.

As humanity has urbanized, we have become ever less subject to nature's vagaries. For instance, a globally interconnected world made possible by the transportation networks between cities means that a crop failure in one place can be overcome by food imports from areas with bumper crops. Similarly resources of all types can be shifted quickly to ameliorate human emergencies caused by the random acts of a brutal insensate nature. Autonomy is just another word for freedom.

The further good news is that the movement of humanity's burgeoning population into the thousand of megacities foreseen that Rifkin is part of a process that ultimately will leave more land for nature. Today cities occupy just 2 percent of the earth's surface, but that will likely double to 4 percent over the next half century. In order to avoid this ostensibly terrible fate Rifkin proclaims, "In the next phase of human history, we will need to find a way to reintegrate ourselves into the rest of the living Earth if we are to preserve our own species and conserve the planet for our fellow creatures." Actually, he's got it completely backwards. Humanity must not reintegrate into nature-that way lays disaster for humanity and nature. Instead we must make ourselves even more autonomous than we already are from her.

Since nothing is more destructive of nature than poverty stricken subsistence farmers, boosting agricultural productivity is the key to the human retreat from wild nature.

Related Posts (on one page):

  1. Bailey on Rifkin on Cities:
  2. Major Cities - Environmental Friend or Foe?
7 Comments
Off to the "Third World":

We're off to Miami to visit family. We should need passports for the trip, according to nativist congressman Tom Tancredo, as he believes Miami is a "Third World country." (I suppose he's writing off the southern Florida vote for his presidential run.)

Contra Tancredo, I find Miami to be wonderfully diverse and cosmopolitan. It's an asset to our nation, although I could do without the hurricanes and sauna-like summers.

8 Comments
Sandy Burglar OIG Report:

The Inspector's General report on Sandy Berger's theft of classified documents is available on-line here. One does not need to believe that Berger was part of some sort of conspiracy to believe his actions, as described therein, were serious breaches of the public trust.

11 Comments
Duke Lacrosse Rape Cases Dismissed:

It is being reported that the rape charges in the Duke lacrosse case have been dismissed.

Charges of kidnapping and sexual offense remain.

44 Comments
Harry Belafonte To Keynote MLK Celebration at Dartmouth:

I just learned that Dartmouth has invited Harry Belafonte to be the Keynote speaker for its Martin Luther King, Jr., celebration next month. Belafonte is the legendary performer cum radical speaker of such classic performances as "Banana Boat Song (Day-O)," "Mama Look a Boo-boo," and "Jump in the Line."

Belafonte's more recent ditties have been in a different style, however: "There are those slaves who lived on the plantation, and there were those slaves who lived in the house. You got the privilege of living in the house if you served the master. Colin Powell was permitted to come into the house of the master..." (memorably performed on Larry King Live) and "Hitler had a lot of Jews high up in the hierarchy of the Third Reich. Color does not necessarily denote quality, content or value...." In his Martin Luther King address last year at Duke he compared President Bush to al Quaeda and has called President Bush the world's worst terrorist.

The indispensable Joe Malchow describes the whole sorry affair, including his eloquent take on the matter. He also has video of one of Belafonte's recent live speaking performances and other of Belafonte's comments.

Encomiums and praise for Belafonte are sure to precede his visit to campus. As one who is now associated in a formal way with Dartmouth as a Trustee of the College, I want to speak as an individual to express my dissent from that praise. I do not want to be silent and have that silence interpreted as my acquiescence or implicit approval of this invitation to Belafonte. Given Belafonte's repeated utterances, I believe that it is exceedingly inappropriate for Dartmouth to provide him with this honor and speaking platform. I disagree with this invitation and the honor that it implies. I had nothing to do with inviting Belafonte and did not learn about it until after the fact.

Let me be clear--Harry Belafonte has the same right to express his bizarre, ignorant, and hateful opinions as any other showbiz crackpot. And student organizations or political groups should be permitted to invite him to speak on campus if they so desire. But there is a vast gulf between that and providing him with the honor of the Keynote speaker of Dartmouth's MLK celebration and a major platform to spew his opinions. Is he really the best person, and are these the best sentiments, to honor King's memory?

An irony is that this announcement comes just weeks after Dartmouth held a campus-wide rally against hate and for "civil discourse" (indeed, one such sign persists on the web site of The Dartmouth today). Whatever that means, it is hard to see how this is the sort of discourse is consistent with it.

In my opinion Belafonte's comments have placed him beyond the pale of thoughtful intellectual society. He demonstrated at Duke last year that he has no appreciation of the solemnity and propriety of what words are appropriate for particular occasions and particular audiences. As the Director of the David S. Wyman Institute for Holocaust Studies has commented, "Hitler and his regime murdered six million Jews and launched a world war that caused more than forty million deaths. How can that be compared to current U.S. government policy?"

In fact, it turns out that one of the members of the Wyman Institute's Advisory Committee is Elie Wiesel, who gave a moving and inspirational Commencement address at Dartmouth this past June. From the sublime to the ridiculous.

Belafonte has kind-of sort-of apologized for saying that there were Jews "high up" in the Third Reich hierarchy, when he really meant to just say that they "ha[d] a role ... in the the demise and brutal treatment of the Jewish people." His claim seems to be based on a misreading of one particular book, Hitler's Jewish Soldiers by Bryan Mark Rigg. Rigg commented on Belafonte's "clarification":

But the book's author, Bryan Mark Rigg, repudiated Belafonte's attempt to use his book as the basis for his controversial statements.

"Belafonte continues to distort history. My book shows that a number of people of partial Jewish ancestry served in the German military, but they did not even consider themselves Jews," Rigg said in a statement released through the David S. Wyman Institute for Holocaust Studies.

"Moreover, the vast majority of them were drafted - they were forced to serve Hitler just as other Jews were forced to become slave laborers in Auschwitz and elsewhere," Rigg said.

"In fact, many of them were later dismissed from the German military and sent to forced labor camps, where they themselves were persecuted, and some were murdered. Belafonte should take the trouble to read the books he cites before claiming they support him. My book doesn't support him," Rigg added.

As far as I can tell, Belafonte has never apologized for comparing Rice and Powell to "house slaves," his comparisons between President Bush and Hitler's Third Reich, or for suggesting that President Bush is a terrorist and comparing him to al Quaeda. When given the opportunity he has instead reiterated them.

In my opinion, Belafonte has proven himself an intolerant fool better suited to speak on a street corner soapbox than the largest auditorium at an institution of higher learning. I can see no reason why he deserves to be honored at an institution dedicated to the life of the mind. I wanted to make clear for the record that I had nothing to do with it, had no knowledge of it, and do not endorse it.

The views expressed here are my personal opinion and do not necessarily represent the views of the Dartmouth Board of Trustees.

31 Comments
Enforcing Immigration Laws = Nazi Crackdowns on Jews:

Reuters reports:

U.S. Hispanic groups and activists on Thursday called for a moratorium on workplace raids to round up illegal immigrants, saying they were reminiscent of Nazi crackdowns on Jews in the 1930s.

They accused the Department of Immigration and Customs Enforcement of "racial profiling," or selective enforcement against Hispanics, for arresting 1,300 workers on immigration violations in December 12 raids at meatpacking plants in six states.

"We are demanding an end to these immigration raids, where they are targeting brown faces. That is major, major racial profiling, and that cannot be tolerated," said Rosa Rosales, president of the League of United Latin American Citizens, at a news conference.

"This unfortunately reminds me of when Hitler began rounding up the Jews for no reason and locking them up," Democratic Party activist Carla Vela said. "Now they're coming for the Latinos, who will they come for next?" ...

If Ms. Rosales can point to non-Hispanic illegal immigrants who work in large numbers at large employers, but who aren't drawing the attention of immigration authorities, she might have some case of discrimination -- though it would still be mighty far from Nazi crackdowns on law-abiding Jewish citizens. But I doubt she can point even to that.

Thanks to Jason Smith for the pointer.

48 Comments
Some People Overuse the Term Theocracy, But This Would Be Real Theocracy

(on at least a literal translation of the term): Forty-six Polish Members of Parliament proposed a resolution "stating that Jesus Christ is the King of Poland" (Poland Business Newswire, Dec. 21). The Catholic Church and the majority of Poles (51%-33%, see PAP News Wire, Dec. 21) opposed the move; the speaker of the Parliament took the view that the Parliament "needs the opinion of the Episcopate before [the declaration] could be voted on," so I take it that the move is dead.

Tammy Bruce is puzzled by the Catholic Church's opposition, but it makes perfect sense to me — such a declaration would likely do more to undermine Christianity in Poland than to advance it. These days, kings have responsibilities as well as glory; kings can be called to account for their failure to adequately serve the nation; kings can be deposed and even executed; my sense is that in democratic nations (even ones officially framed as monarchies), kings are seen as servants of the people more than as sovereigns.

Once upon a time, the understanding of kingship was quite different, and Jesus's and the Virgin Mary's historical royal titles (such as Mary's being called the Queen of Pland). But today, officially naming Jesus King would considerably downgrade him.

Thanks to Jules Crittenden for the pointer.

15 Comments
McConnell vs. Breyer:

Via Ted Frank over at Pointoflaw.com, Judge Michael McConnell has a rather devastating (though unfailingly polite) review of Justice Stephen Breyer's Active Liberty in the Harvard Law Review.

As an aside, I'm a bit skeptical of McConnell's conclusion that Supreme Court decisions regarding federal regulation of "intrastate commerce" have been accepted by the nation. Putting aside the issue of whether "the nation" is even aware of the issue, I'm not at all confident that a constitutional amendment mimicking the holding of Wickard v. Filburn, much less Gonzales v. Raich, would pass even today.

UDPATE: Judge McConnell responds in the comments below: "The reason Raich and Wickard are controversial is that they arguably do not involve 'commerce' — not that Congress lacks the power to regulate what is genuinely commerce (albeit intrastate). Just because a particular interpretation is very widely accepted does not mean that every marginal extension of that interpretation is widely accepted."

Yes, that's right, though of course the "public" doesn't understand these fine legal distinctions. The point, I think, is that while public opinion has likely made its peace with a substantial expansion of federal regulatory power relative to the pre-New Deal baseline, I think there is still substantial (even if perhaps not majority) opposition to granting the federal government what in legal terms would be called a general "police power"--the power to regulate everything and anything, subject only to the restraints of the Bill of Rights, which is a reasonable description of the current state of the law.

Meanwhile, Sasha writes: "'Accepted by the nation,' as we know from public choice, isn't the same as 'able to pass if proposed in a constitutional amendment.' Would a constitutional amendment pass that overruled Wickard v. Filburn or Gonzales v. Raich?" Good point, so let me elaborate: my normative baseline is that if "overwhelming public acceptance" (McConnell's words) over time is to give dubious Supreme Court opinions "legitimacy and authority," it should be because these opinions could, if necessary, ultimately be ratitified via the normal Article V process; at least, one should be able to expect a reasonable chance that such ratification would occur. That's likely true of McConnell's other examples: extension of equal protection principles to the federal government, prohibition of sex discrimination by states (despite the failure of the ERA, I think you could likely get the current state of the law ratified), and prohibition of gross malapportionment of Congressional districts in the states.

46 Comments

Thursday, December 21, 2006

Don't hate me because I'm beautiful:

Now that you've read all about "sele and meal" from my previous post, here's some useful advice for the beautiful.

(The following is from the same Heaney translation of Beowulf that I quoted in my previous post; this can be found at lines 1931-41. I won't reproduce the Old English this time, but you can find a text here and here, among other places. I've noticed that not everyone agrees that the name of the queen is Modthryth; a few versions have "mod" as a separate word and "Thryth" as the name of the queen. Anyway, that's not important here.)

... Great Queen Modthryth
perpetrated terrible wrongs.
If any retainer ever made bold
to look her in the face, if an eye not her lord's
stared at her directly during daylight,
the outcome was sealed: he was kept bound
in hand-tightened shackles, racked, tortured
until doom was pronounced — death by the sword,
slash of blade, blood-gush and death qualms
in an evil display. Even a queen
outstanding in beauty must not overstep like that.
Good advice, even today.

Related Posts (on one page):

  1. Don't hate me because I'm beautiful:
  2. Beowulf and modern appliances:
8 Comments
"Police Want Bullet in Teen's Forehead": A bunch of readers have contacted me pointing out this interesting story:
In the middle of Joshua Bush's forehead, two inches above his eyes, lies the evidence that prosecutors say could send the teenager to prison for attempted murder: a 9 mm bullet, lodged just under the skin.

Prosecutors say it will prove that Bush, 17, tried to kill the owner of a used-car lot after a robbery in July. And they have obtained a search warrant to extract the slug.

But Bush and his lawyer are fighting the removal, in a legal and medical oddity that raises questions about patient privacy and how far the government can go to solve crimes without running afoul of the constitutional protection against unreasonable searches and seizures.
  There is a Supreme Court decision that covers this kind of case: in Winston v. Lee, the Court held that "the reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual's interests in privacy and security are weighed against society's interests in conducting the procedure." This means that the legality of the warrant depends on a pretty context-sensitive balance: on one hand, how much is retrieving the bullet likely to help the government's case, and on the other hand, how much harm is it likely to cause to the young man who will have the bullet extracted?

  For more on this, check out FourthAmendment.com.
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Beowulf and modern appliances:

I've just been reading Beowulf in the recent verse translation by Seamus Heaney. It's a bilingual edition, with the Old English on the left and Heaney's version on the right. On two separate occasions, I've noticed a particular expression, "sæl ond mæl."

For instance, in lines 1008-09, we have:

... | þa wæs sæl ond mæl
þæt to healle gang | Healfdenes sunu;
which Heaney translates: "Then the due time arrived for Halfdane's son to proceed to the hall." Similarly, in lines 1607-11, we have a wonderful image describing how the sword that Beowulf used to kill Grendel's mom melts from her scalding blood:
... | þæt wæs wundra sum,
þæt hit eal gemealt | ise gelicost,
ðonne forstes bend | fæder onlæteð,
onwindeð wælrapas, | se geweald hafað
sæla ond mæla; | þæt is soð metod.
which Heaney translates: "It was a wonderful thing, the way it all melted as ice melts when the Father eases the fetters off the frost and unravels the water-ropes. He who wields power over time and tide: He is the true Lord."

Unraveling the water-ropes! How can one not love the Anglo-Saxons?

(Digression: Someone should film Beowulf, not like in the atrocious 1999 version with Christopher Lambert, but rather with Klingons. "It is always better to avenge dear ones than to indulge in mourning." Perhaps the upcoming Robert Zemeckis version will have a Klingon in it? Or, for a more complex vision, perhaps David Boreanaz as Beowulf?)

The word "sæl," also spelled "sele," is listed as "obsolete, except in dialect" in the OED, which hasn't seen the word since 1875. The word apparently has no modern equivalents or similar words, and I'm unaware of common related words in other languages. Anyway, this word means "happiness, prosperity, good fortune," and in addition means "favourable or proper time, opportune moment; occasion, opportunity; season, time of day."

The word "mæl" is the same as the modern English word "meal." No, I'm not talking about the sense of "something ground," as in "cornmeal" (similar to the word "mill" and even related to the Russian word "blin"). Rather, I'm talking about the sense of "a time or occasion; a particular time, a suitable time; a period of time," which is also used in a more specific sense of "a customary or social occasion of taking food, esp. at a more or less fixed time of day, as breakfast, dinner, etc.," and in its metonymic sense of "the food and drink consumed at or provided for such an occasion." (Compare with the German words "Mal," as in "einmal," and "Mahl," as in "Abendmahl.")

So "sele and meal," meaning "the due time," or, if you will, "time and tide."

Why do I bring this up? Only to alert you that, when you come across this expression, you should not confuse it with the kitchen appliance Seal-a-Meal.

Related Posts (on one page):

  1. Don't hate me because I'm beautiful:
  2. Beowulf and modern appliances:
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An Important test for Moneyball Hiring Methods in Academia:

The Brandeis School of Law at the University of Louisville has recently hired University of Minnesota law professor Jim Chen as its next dean. Chen is a prominent legal scholar in several fields, and also a major advocate of Moneyball hiring strategies in legal academia, which he writes about on his highly recommended Money Law blog. I myself have defended Moneyball hiring strategies here and here. Just as Oakland A's General Manager Billy Beane has used Moneyball strategies to build a superior baseball team with less money than his competitors, Moneyball advocates in academia have argued that schools can use such methods to build a better faculty and move up in the rankings, even relative to better-financed peer schools. In both baseball and academia, the Moneyball emphasis on statistical analysis can help identify promising "players" whose contributions are undervalued by more conventional metrics. Certainly, this approach was one of the keys to George Mason's rapid rise over the last few years.

To my knowledge, Louisville will be the second law school (after GMU) to place Moneyball advocates at the helm. Assuming that they give Chen enough autonomy to implement his ideas, this will be an interesting test for Moneyball methodology. If Louisville improves it faculty and rises in the rankings significantly over the next few years, it will be further evidence of Moneyball's effectiveness. The flawed, but widely used US News Law School ranking system currently has Louisville as a "Tier 3" school, which means that they consider it to be somewhere between no. 100 and no. 150 out of the roughly 190 AALS-accredited schools. I suspect they might be moving up soon.

Congratulations to Jim, and good luck!

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Melo Won't Appeal Suspension:

Carmelo Anthony has decided not to appeal his 15 game suspension for his role in the Nuggets-Knicks melee last weekend. According to his attorney, Anthony believes the appeal would be a "distraction."

"It's Melo's wish to just keep the focus on basketball," [attorney Bill] Duffy told ESPN.com. "In his words, he's just going to take [the suspension] and keep the focus on keeping himself ready."
Under NBA rules, if a player appeals a suspension longer than 12 games, the appeal is heard by an independent arbitrator. Anthony's teammate J.R. Smith is appealing his ten-game suspension, but because it is less than 12 games, NBA commissioner David Stern will hear the appeal.

Related Posts (on one page):

  1. Melo Won't Appeal Suspension:
  2. Will Isiah Get Off Easy?
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Urging a Change in Gun Law -- How Shocking! And She's Not Just a School Board Trustee, But a Woman!

The Globe & Mail (Toronto) reports (some paragraph breaks deleted):

Vancouver school board trustee Sharon Gregson [publicly argues that] Canadians need to broaden their thinking about handgun ownership. "There is a thinking that guns can only be bad and related to crime, and that's not my experience as a legal gun owner, participating in a gun sport," Ms. Gregson said, explaining why she decided to get a handgun permit in Utah....

But some of Ms. Gregson's colleagues have urged the trustee, a married mother of four, to stop shooting her mouth off. Trustee Clarence Hanson said her comments send the wrong message to kids.

"I was quite shocked," Mr. Hanson said after he heard Ms. Gregson on a morning radio program yesterday, in which she argued in favour of easier access for permits to carry a concealed gun, especially for women who feel threatened. "As a school trustee, my concern is basically, we have a number of children ... who sometimes feel harassed and bullied. I don't want them to get the impression that this is the way to protect yourself," Mr. Hanson said. "If they get a feeling that a school trustee who represents them thinks it's okay to protect yourself in this way, ... we're going down a dangerous road, I think." ...

Ms. Gregson said she did not mean to suggest that kids in the school system be urged to carry guns. However, she did suggest that the outcome of the Montreal massacre might have been different if any one of Marc Lepine's 14 female victims had been carrying a weapon.....

Mr. Hanson said he wants to talk to Ms. Gregson about her comments. "I think when we become a school trustee, you've raised the bar a little bit for yourself. So you have to help set an example out there."

The head of the Canada's main gun-control lobby[, Wendy Cukier,] denounced Ms. Gregson's comments as well .... "It's an absurd comment. It's completely contrary to Canadian traditions. It has no basis in fact, and for someone who is associated with schools to be making those comments is particularly alarming, especially a woman." ...

Thanks to lawprof Joe Olson for the pointer.

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Yet Another Example of Why We Should Bring Back the Word "Prejudiced":

Shmuel Rosner in Ha'aretz has a lengthy discussion of whether Jimmy Carter is anti-Semitic. I think it's pretty clear he's not, or at least that there's no evidence that he is, if by "anti-Semitic" we mean someone who hates Jews and wishes them harm.

The more interesting question is whether Jimmy Carter is "prejudiced" against Jews. From what I've read (and I don't want to rehash it all here), he's prejudiced against Israel and Israelis, and prejudiced in favor of the Palestinians and their leadership, for reasons that have more to do with his own underlying emotional and religious outlook than with any objective analysis of the situation. But while such prejudices are obviously correlated with prejudices against Jews, one can easily have such prejudices without being prejudiced against Jews. Carter, from what I've seen, believes a lot of very foolish things, especially but not exclusively with regard to foreign policy, and the fact that his views on Israel and Israelis are as foolish as his views on economics and foreign policy more generally is hardly evidence of a particular anti-Jewish prejudice.

Agree or disagree with my analysis, I think it's at least clarifying to separate the debate over whether someone is prejudiced, and in what way, from whether someone is a "racist" or an "anti-Semite." To take another example, the professor whom Eugene wrote about yesterday is very likely prejudiced against whites (regardless of his own background), but it's less likely that he's actually a "racist" in the sense of hating whites, wishing them harm, or thinking them inferior.

UPDATE: Here's a related post of mine from the old Bernsteinblog, in which I point out that Harry Truman and H.L. Mencken can fairly be described as "prejudiced" against Jews, but not as "anti-Semites."

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Questions About Immigration:

I've blogged nearly nothing about immigration, because it seems to me that to have an informed opinion on the subject, one needs to do a good deal of research (research that I don't have the time and inclination to do now, though I hope to one day). My moral and free-market instincts are generally in favor of pretty substantial immigration, but there are enough serious contrary arguments that I'd heard that I don't feel at all comfortable trusting my instincts here.

So instead of expressing my views, I thought I'd briefly just ask the following questions, and ask you to answer them only if you meet both of these conditions:

(A) You are political liberals or moderates who support a considerable level of welfare spending (for medical care, general relief, housing subsidies, food stamps, public higher education, and a variety of similar programs) — I don't insist that you support the most aggressive forms and levels of welfare spending, but just that you support a considerable amount of such spending.

(B) You support relatively open immigration.

I should note that these are sincere questions, ones that I thought are hard questions for pro-open-immigration forces, but not ones that I've concluded are unanswerable. Here they are:

(1) If we had relatively open immigration, how many of the world's 6 billion people do you think would want to move here? (As I understand, the current rate with our non-open immigration policy is about one million per year.) Would you let in all of them, or would you cap them at some level, or select them otherwise? If you would cap them, what would you do about the illegal immigrants who'll keep on coming?

(2) Which government benefits do you think ought to be provided to these immigrants? I take it that most of us would say that basic police protection ought to be provided. I assume that public K-12 education would be provided for the immigrants' children, too, yes (even if only because you don't want them to be running around on the street, or forming a permanent uneducated underclass)? What about medical care (both emergency and nonemergency), food stamps, university education, and the like? Would you support limiting such programs only to people who are citizens (or who have lived here, say, 7-10 years)? Or do you think that it would be wrong or counterproductive to leave our legal guests without education, medical care, food aid, and the like?

(3) Would you support putting these immigrants on the standard path to citizenship, which would presumably mean that if they don't misbehave, they'd be able to get citizenship within 7-10 years? I'd expect you would, since it's probably not good to have a large cadre of legal residents who nonetheless aren't eligible to be citizens. But if your guess as to question 1 is that many millions would come each year, are you at all worried that this might upset the current political balance on various policy issues that you favor (perhaps, for instance, socially liberal policy issues, such as gay rights and the like) but that many likely immigrants — from Latin America, China, the Middle East, Africa, and the like — might not favor?

(You can of course argue that we should work hard to assimilate the immigrants and acculturate them to our views; but please explain how you'd deal with the possibility that they not be persuaded by our views, at least in the first generation. You can also argue that we should entrench these policy issues as a matter of constitutional law; but then please explain how you'd keep these constitutional judgments from being upset if the political balance shifts enough, given that a large enough majority can always overcome constitutional judgments in a variety of ways.)

UPDATE: Just to make explicit something that I thought was clearly implicit, but that some of the answers didn't touch on -- if your answer to number 2 is pretty generous, wouldn't that further increase your answer to number 1, and bring in many people who would cost a great deal to take care of? Most immigrants, I'm sure, are quite hard-working, but the more benefits you offer, the more likely you are to get people who come at least partly or even largely for the benefits.

This doesn't make them horrible, just smart: If they have health problems, and several small kids, they might well want to move partly for the health care (if we do provide them free health care) and the education, especially if the government will feed them via food stamps and house them via some sort of housing stipends for the needy. The subsidies may make them dirt poor by our standards, but still much better off than they were in their home country, especially if you include the medical and educational benefits.

Do you think this will be very rare? Pretty common, but fine nonetheless?

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A Troubling News Tidbit:

Today's N.Y. Times reports:

The lawyer for James Barbour, a Broadway actor accused of sexually molesting a young woman in 2001, when she was 15 and he 31, was barred yesterday from setting up a hot line asking men to come forward with accounts of being falsely accused of sexual harassment by the accuser in this case, who is now 20. The lawyer, Ronald Fischetti, said in State Supreme Court that the district attorney had set up a hot line soliciting other claims against his client, and that he wanted to turn the tables. But Justice Micki A. Scherer denied his request, and ordered both sides not to discuss the case.

This strikes me as posing both First Amendment and Sixth Amendment problems. I'm not an expert on this corner of First Amendment law — I know judges have often been seen as having substantial power to restrict the speech of ligitants, including criminal defendants, as well as their lawyers. Some restrictions on lawyers have been generally upheld by the Supreme Court in Gentile v. State Bar (1991), following a longstanding tradition of treating lawyer speech about pending cases as especially subject to judicial supervision. But even Gentile doesn't hold lawyer speech to be categorically unprotected, and I'm not sure that this sort of speech would be punishable under Gentile.

Moreover, while some courts have extended the holding to the litigants themselves, including defendants (who, unlike civil plaintiffs or prosecutors, can't be seen as having voluntarily incurred some obligations in exchange for some benefit, such as a government job or access to the court system). It seems to me there's no constitutional justification for any such speech restriction: Even if Barbour's lawyer may be barred from engaging in such a search, Barbour's friends or business associates should be free to do this, and pass the information along to Barbour and his defense team. On the other hand, I should warn readers that I haven't read much of the lower court caselaw on the subject (and there is a good deal of such caselaw), so my opinion here is somewhat tentative.

As to the Sixth Amendment: The defendant seeks information that might prove exculpatory to him. True, seeking this information may well be quite annoying to the complainant (even if the complainant has never falsely accused anyone of sexual harassment before, the public solicitation for such stories may cast her veracity in doubt with some), and may discourage future complainants from coming forth. But I don't see that as an adequate justification for keeping the defense from discovering important exculpatory evidence, whether or not the prosecution has sought comparable evidence on the other side.

But I'd love to hear from readers who know more than I do about this subject — both more about the facts of this incident, and more about this area of the law.

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"Why They Deny the Holocaust":

Via Concurring Opinions, a disturbing op-ed explaining why Holocaust denial finds so much of the Islamic world to be fertile ground:

Western leaders today who say they are shocked by Iranian President Mahmoud Ahmadinejad's conference this week denying the Holocaust need to wake up to that reality. For the majority of Muslims in the world, the Holocaust is not a major historical event that they deny. We simply do not know it ever happened because we were never informed of it. . . .

. . . For generations, the leaders of these so-called Muslim countries have been spoon-feeding their populations a constant diet of propaganda similar to the one that generations of Germans (and other Europeans) were fed — that Jews are vermin and should be dealt with as such? In Europe, the logical conclusion was the Holocaust. If Ahmadinejad has his way, he shall not want for compliant Muslims ready to act on his wish.

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Europe Moves to Cap Airline Emissions:

The New York Times reports that European officials are moving ahead with plans to impose caps on greenhouse gas emissions from air travel. Airlnes have been exempt from Europe's carbon dioxide cap-and-trade progrma, but that exemption could end in 2011. If this plan goes through, the costs are likely to be reflected in higher airline ticket prices, at least in Europe.

The international air transport group said that Europe’s proposal could still cost airlines globally up to 2.9 billion euros ($3.8 billion) a year to buy allowances starting in 2012, when the rules are expected to cover all flights in and out of the union.

But European officials said that airlines should be able to pass much of the extra costs on to passengers, who would face increases in ticket prices of $2 to $12 for a trip within the European Union over the next decade. Officials said a return flight to New York might cost an additional $10 to more than $50, depending on how much individual airlines would have to pay for extra carbon allowances.

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Sandy Burglar:

From today's Washington Post:

On the evening of Oct. 2, 2003, former White House national security adviser Samuel R. "Sandy" Berger stashed highly classified documents he had taken from the National Archives beneath a construction trailer at the corner of Ninth Street and Pennsylvania Avenue NW so he could surreptitiously retrieve them later and take them to his office, according to a newly disclosed government investigation.

The documents he took detailed how the Clinton administration had responded to the threat of terrorist attacks at the end of 1999. Berger removed a total of five copies of the same document without authorization and later used scissors to destroy three before placing them in his office trash, the National Archives inspector general concluded in a Nov. 4, 2005, report.

So, Berger stole and destroyed classified material on multuple occasions — some of which had hand-written notations that are permanently lost — and his only punishment was a fine, some community service, and the temporary loss of his security clearance. At the very least, Berger should never have access to classified documents again.

[Oops! I forgot the link. It's fixed now.]

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Lindsey Defends "Liberaltarianism":

Brink Lindsey returns to the pages of The New Republic to defend "liberaltarianism" from Jonathan Chait's critique (available only to TNR subscribers). Lindsey's bottom-line: "Liberals deserve better than to wind up as tax collectors for the gerontocracy. Moving in a libertarian direction offers a way out."

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InstaPundit & Mrs. InstaPundit Podcasting "a Martha Stewart Christmas,"

They interview (1) Prof. Joan Heminway, whose book, Martha Stewart's Legal Troubles, comes out next week, and (2) Prof. Ellen Podgor, who has a chapter in the book and who talks about white-collar crime, overcriminalization, and more. Plus some cool Christmas music, which I'd never heard before, from Audra & The Antidote.

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News from Europe:

Take a look at the Helsinki Complaints Choir. This is along the same lines as my 2003 dream that I was going to put on a Brown v. Board of Education oratorio. (See also the Civil Rights Cantata, a musical setting of the Universal Declaration of Human Rights, Nuremberg Principles, and excerpts from the U.N. Charter, by James F. Wood. You can buy that here.)

Also, Slate comments on the release on probation of British Holocaust denier David Irving, who had served 13 months of a 3-year sentence in Austria. "Score one for free speech," says Michael Weiss of Slate. (Weiss adds "even if the speaker is thoroughly unsavory," which sadly seems obligatory these days.) Does anyone have any evidence that the probation was based on free-speech concerns? I didn't see any in the news article I read. (I know, perhaps any shortening of a speech-violative sentence is in some sense a victory for free speech. But it's arguably not such a big "ideas" victory if he was released to open up prison space for murderers, because he was judged unlikely to reoffend, because the Austrians thought deportation was a better option for foreign prisoners, etc.)

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Wednesday, December 20, 2006

Adolf Hitler on Federalism:

One of the relatively few underanalyzed major topics in the extensive academic literature on federalism is the relationship between federalism and totalitarianism. A potential advantage of decentralized federalism is that it might serve as an obstacle to the establishment of an oppressive totalitarian state. Yet most scholars have largely ignored this possibility. One writer who didn't, however, was Adolf Hitler, who had this to say on the subject in Chapter 10 of Mein Kampf (which is devoted to German federalism):

[A] new and triumphant idea should burst every chain which tends to paralyse its efforts to push forward. National Socialism must claim the right to impose its principles on the whole German nation, without regard to what were hitherto the confines of federal states. And we must educate the German nation in our ideas and principles. As the Churches do not feel themselves bound or limited by political confines, so the National Socialist Idea cannot feel itself limited to the territories of the individual federal states that belong to our Fatherland. The National Socialist doctrine is not handmaid to the political interests of the single federal states. One day it must become teacher to the whole German nation. It must determine the life of the whole people and shape that life anew. For this reason we must imperatively demand the right to overstep boundaries that have been traced by a political development which we repudiate. (emphasis added)

Hitler and the Nazis rightly saw German federalism as an obstacle to the realization of their aims - which required a highly centralized state. And it is not surprising that they quickly stripped the German states of most of their authority after taking power in 1933. Other things equal, a totalitarian government is more difficult to establish in a federalist state than in a unitary one, because in the former state and/or local governments will retain greater ability to resist a totalitarian movement that comes to power at the center. If the totalitarians are unable to stifle the autonomy of state governments, then their vision cannot be fully implemented, even if they remain in power at the center. In Hitler's words, federalism makes it harder for a totalitarian movement to "impose its principles on the whole . . . nation." Furthermore, relatively autonomous state and local governments might make it more difficult for the totalitarians to seize power at the center in the first place.

The fact that Hitler didn't like federalism is not in itself a reason to support it; such an argument would be an obvious example of Eugene Volokh's "reverse Mussolini fallacy." But the likelihood that federalism may have the benefit of making the establishment of a totalitarian state more difficult is an important advantage of such a system relative to a unitary state.

Even if federalism obviates the danger of a totalitarian takeover only slightly, that might still be an important advantage given the high cost of totalitarianism. For example, let's assume that in Country A, federalism reduces the chances of a totalitarian outcome from 2% to 1%, and let us also assume that A has a population of 20 million people. Given that totalitarian governments typically engage in mass murder that kills 5% or more of the population, reducing the chance of a totalitarian outcome in A from 2% to 1% has an expected value of at least 10,000 lives saved. That estimate conservatively assumes that the totalitarians would kill "only" 5% of A's population if they succeed in taking over. There are numerous totalitarian states where (including the USSR, China, Cambodia, Ethiopia, Yugoslavia, Germany, Vietnam, and others), where totalitarian rulers accounted for a much higher death toll than that. It also ignores all the lesser human rights violations that occur under totalitarian rule such as forced labor, violations of freedom of speech, and so on.

In some well-established democracies, the background probability of a totalitarian takeover may be so low, that the utility of federalism in driving that probability down still further is insignificant. In less-established democracies, such as that which the Nazis faced in the 1920s, the background probability is considerably higher.

Finally, it's worth noting that Germany is the only example of a federalist nation that fell victim to a totalitarian takeover despite its federalism. Except in cases where totalitarianism was imposed by foreign conquerors, every other transition to totalitarianism occurred under unitary governments. Even in the German case, federalism helped prevent earlier efforts at a totalitarian takeover in 1919 (by communists) and 1923 (Hitler's Beer Hall Putsch). Fascist Italy is not a counterexample, because Mussolini's dictatorship, although oppressive, never rose to the level of full totalitarianism and - not coincidentally - did not engage in mass murder and other atrocities on anything like the same scale as the Nazis did (e.g. - Italian Fascist officials actually refused to take part in the Holocaust).

The degree to which federalism impedes totalitarianism remains an open question. But if it does so to even a small extent, that fact alone might justify establishing a federalist system with strict limits on central government power - even if a unitary state would be preferable otherwise. The choice between unitary government and federalism is an important issue in many new democracies, including Iraq. In making their decision, they should take due account of Adolf Hitler's insight.

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Liberman Discusses "On All Fours": Over at Language Log, Mark Liberman weighs in on the "on all fours" question. (I realize that only about 2% of VC readers still care about this, but hey, I happen to be part of that 2%.)
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Woman Complains to Officer About Buying Bad Crack, Gets Arrested: The story is here.
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Best Law Blog (2006):

I'm delighted to report that my cobloggers and I have been awarded the Best Law Blog award by the voters for the 2006 Weblog Awards. Unscientific, but, hey, science is vastly overrated. How Appealing, which I read every day, was #2; but I would say that they are the #1 Law News Source, whether online or not.

UPDATE: My favorite comment, from glangston: "This honor and the fact that you were named Person of the Year by Time Magazine .......!!!!...it's almost too much."

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Sex (or SexLaw) Sells -- Surprise!

Our unique visitor count Monday was 35697, and Tuesday was 38423 -- both near our historic highs. (The norm for a typical weekday is in the low 20000s.) My sense is that most of the extra visits were to the initial Ten Years in Prison for 17-Year-Old Who Had Consensual Oral Sex with 15-Year-Old post.

No, we won't be upping our blogging on SexLaw as a result. (We'd blog about it independently of visitor interest.) But it's interesting, though of course completely unsurprising, that this is indeed what many people want to read.

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Washington State University Professor Calls Student "White Shitbag" at Demonstration:

The WSU investigation report is here. The College Republicans organized an anti-illegal-immigration event, featuring a "24-foot, chain-link, cyclone fence, later established as a representation of a 'Wall of Immigration.'" Professor John Streamas showed up, got into an argument with Dan Ryder, a College Republicans member, and in the process called him a "white shitbag."

Ryder eventually filed a complaint alleging that Streamas subjected him to discriminatory harassment and intimidation, in violation of a university policy. The WSU report held that Prof. Streamas's insult didn't violate the policy, but noneteless condemned Prof. Streamas for "immature, intellectual unsophistiated and thoughtless conduct unbecoming any WSU employee and a member of the WSU faculty, in particular." The university will apparently officially reprimand Prof. Streamas.

It seems to me that Prof. Streamas's statement indeed shouldn't be a fireable offense. Despite the First Amendment and academic freedom protections that professors have, I think a university could indeed sanction in various ways one-to-one personal insults said by professors to students, especially when they fall within the constitutional category of "fighting words" (words that are likely to start a fight), which "shitbag" likely does. But to do that, I think the university ought to have a policy that's far clearer than the one at issue here; and there should any event be some accommodation for occasional statements made in anger — especially when the speaker promptly apologizes when called on this, as Streamas did here, when berated by Mr. Ryder for the insult. When people get impassioned, they sometimes say things that they shouldn't say, and while we expect better from professors, making each such statement (even an insulting one) into a firing offense (or, when said by students, into a dismissable offense) would go too far to deter extemporaneous debates in which people realize they may go over the line.

I agree that we also have to be attentive to students' academic freedom, and certain speech by professors — most obviously, threats of academic retaliation — can undermine students' freedom. But here the statement was outside class; Prof. Streamas wasn't one of Ryder's professors; and while Mr. Ryder was rightly offended by the statement, I don't think he could have reasonably interpreted it as a threat of either retaliation or of violence (except insofar as all heated condemnation, including condemnation that's much more substantive than this, may carry some vague and indirect implicit threat of retaliation).

Nonetheless, it is pretty sad that this incident happened, and it says some pretty bad things about Prof. Streamas and others like him. First, the report tells us that Prof. Streamas "insists that he did not utter the phrase as an expression of racism, in part, because he argues that a person of color cannot be racist, by definition, because racism also defines a power differential that is not usually present when a person or color is speaking." Yeah, right. He and others are redefining the term "racism" in a way that's pretty far removed from its normal meaning — which is racial hostility — so as to give themselves a rhetorical break from the rules they're imposing on others. And on top of that, he's applying even his revised definition in a disingenuous way: Whatever may be "usually" so, there surely is a "power differential" between a professor of whatever race and a student of whatever race.

Second, "In reply to a [university Center for Human Rights] request for a meeting, [Prof. Streamas] left an unsolicited voicemail message, which stated, in relevant part,"

The fence was a racist attack upon us. And ... I think that we need to talk about that .... Whatever I said to one person is not equal to whatever that fence did to hundreds of people, attacking us personally and communally.... Many, many people have been hurt. I don't care about the hurt feelings of one white person; I care about the hurt feelings of many, many people of color and immigrants who were offended by that fence....

Well, yes, the two are not equal. The fence and the demonstration related to it is an attempt to participate in a debate about illegal immigration. Some might think that the attempts to stem illegal immigration are inherently racist; others might not; but what's important for a university is that illegal immigration and the responses to it are a substantive issue that requires substantive discussion.

That people are "offended" by the discussion, or by the symbols of the discussion, is no reason not to have the discussion. (I suppose one could argue that the fence is a nonsubstantive symbol that doesn't add much to the discussion, but I take it that any "people of color and immigrants who were offended" would have been equally offended by substantive denunciations of illegal immigration as much as they would be by a fence.) And this is especially so with a university: A university can't function effectively if people are deterred from raising substantive arguments because some people (even "many people of color and immigrants") are offended.

On the other hand, calling a student a "white shitbag" is not an attempt to participate in a debate, or to foster a debate. It's namecalling that's pretty clearly intended to insult, and likely to have no effect but insulting. That sort of offensiveness — deliberate nonsubstantive insult, rather than an expression of ideas (good or bad) — undermines rather than advancing the mission of the university, especially when it's a professor who's doing the talking.

Finally, how can a university fulfill its mission if its faculty deny that there is even a substantive debate to be had, on an issue that seems much in need of a substantive debate? Prof. Streamas's view is that "The fence is no different than a Confederate flag or a swastika." Than a swastika? Taking the view that immigration laws ought to be enforced, and that some limits on immigration are proper, is tantamount to endorsing the killing of Jews and an explicit ideology of racial superiority?

There's an important debate to be had about the proper immigration policy for our nation (a nation to which I suspect hundreds of millions would want to come, if the borders were completely opened). People of all races have different views on the subject. I unfortunately couldn't find any recent polls on immigration broken down by race, but a 1996 poll (the most recent one I could find) reported that roughly identical numbers — 86% to 90% — of black, Asian, and white respondents took the view that Clinton should in his second term "crack down on illegal immigration." (Warning: Asian numbers have a very high margin of error, and black numbers have a relatively high one.) In 1994, the Voter News Service poll reported that California's anti-illegal-immigrant Prop. 187 was supported by 64% of white voters, 57% of Asians, 56% of blacks, and 31% of Hispanics. (Same warning as above, though somewhat less so.) The L.A. Times reported less support by nonwhites, but still substantial support — 63% among whites, 47% among Asians and blacks, and 23% among Hispanics.

This is an issue that people, especially scholars who are interested in such questions, should address seriously and thoughtfully. Yet my sense is that there's an atmosphere in many university departments, especially ones that are ideologically monolithic and thus tend towards being echo chambers, that professors react to these questions with vitriol rather than with thoughtfulness. That surely seems to be so of Prof. Streamas.

207 Comments
"Running on All Fours": I did a bit more research on the use of "on all fours" in legal writing, and my research questions whether Michael Quinion is right when he suggests that the phrase refers to two animals standing next to each other (and thus similiarly situated). When I looked up the earliest uses of the phrase in American decisions, it turned out that they all refer to motion — the cases are running on all fours, or traveling on all fours, or going on all fours.

  Here are the four earliest uses of the phrase in state cases, all in contexts designed to mean "closely analogous":
Snelgrove v. Snelgrove, 4 S.C.Eq. 274, S.C., Jun 1812
"[Another precedent] is that most perfectly like the one now before the court. Indeed it may be said to run on all fours."

Gailey v. Beard, 4 Yeates 546, Pa., 1808
"The case in 2 Stra. 934, runs on all-fours with the present"

Abbott v. Broome, 2 Am.Dec. 187, N.Y.Sup., 1803
"The determination also in Saidler and Craig v. Church, goes on all fours with the present case. The facts were exactly similar."

Hamilton v. Buckwalter, 2 Yeates 389, Pa., 1798
"It is similar to the present case, and may be said to run on all-fours."
  And here are the earliest uses in federal decisions:
Russell v. Wiggin, 21 F.Cas. 68, C.C.D.Mass., May Term 1842
"[A prior precedent] is also an authority to the same purpose; and, indeed, it runs on all fours with the present case."

Bank of the U S v. Goddard, 2 F.Cas. 694, C.C.D.Mass., Oct Term 1829
"The case would seem, therefore, to travel on all-fours with the present."

The William Penn, 6 F.Cas. 781, C.C.D.N.J., Oct Term 1819
"[I]t would have been directly in point, and would have gone on all fours with the present."

Anonymous, 1 F.Cas. 1004, D.Md., 1808
"If this determination does not exactly run on all fours with the case to be decided, its principles are so nearly similar as to render an accurate discrimination very difficult."
  Later cases begin to drop the notion of "running" and just say that the former case "is" on all fours with the latter. This is just speculation, of course, but the context suggests that the visual image is more an animal running alongside the observer than two animals standing next to each other. If an animal is running on all four legs beside you, the thinking might be, it means that it remains close to you and goes where you go. So if a precedent runs on all fours with your case, it exactly tracks your case. That's my amateurish guess, at least.

Related Posts (on one page):

  1. "Running on All Fours":
  2. The Origin of "On All Fours":
14 Comments
Foreclosures:

In a comment to my earlier post, a Commenter notes that foreclosures have risen dramatically over the past several months. This raises an excellent quesiton, and one that I was actually going to address in my initial post. It may be worth mentioning briefly why I don't view foreclosure numbers as a particularly good metric for measuring financial distress. I thought it might be too distracting to discuss in the initial post, but since it was raised in the Comments I'll go ahead and say a few words here.

Home foreclosures are analytically more complicated than consumer debt delinquencies and charge offs. There are two competing theories of foreclosures. One is a "distress" theory the other is an "option" theory. Under the distress theory, a rise in interest rates could cause an involuntary default and subsequent foreclosure, by making it more difficult to make monthly payments. The option theory views foreclosure as a rational economic "option," which is that when you buy a house using a mortgage you also buy an option to default. When housing prices fall, economic theory predicts that more people will exercise this option to default and permit foreclosure. One would especially expect to see the exercise of such an option for "investment" properties, such as condominiums held as a speculative investment rather than for owner-occupancy. And if the loans are non-recourse, then this makes the option even more valuable. I discuss some of this literature in passing in my article on the bankruptcy crisis.

The empirical difficulty is disentangling the option theory from the distress theory, especially if there is a simultaneous rise in interest rates and fall in housing prices (the two being related, of course). A rise in interest rates would lead to increased foreclosures under a distress theory (because it will be more difficult for consumers to make their monthly payments), whereas a fall in housing prices would lead to increased foreclosures on an option theory.

If interest rates have stabilized, but housing prices have continued to fall, this would be more consistent with the option theory of foreclosure.

To the best of my knowledge, we don't know the extent to which the recent rise in foreclosures is the result of investors exercising their default option to surrender their properties. I have seen reports that some cities that have had the largest rises and falls in residential real estate are also those that had the largest number of speculators, but this seems to be anecdotal.

Certainly consumer debt more generally has this option value built into it, but the value of the option is not as likely to vary over time as for real estate and real estate foreclosures.

11 Comments
Do Nine Year Olds Believe in Santa?:

Via Drudge, this story from England is about a teacher who is in trouble because she told her nine-year-old student that Father Christmas doesn't exist. The teacher seemed to think they already knew that, but apparently some didn't.

Being Jewish, I'm not much up on these things, but I'd have thought that the Santa thing pretty much dissipated by age six or seven, at the latest; even if the parents tried to maintain the legend longer, I'd think that some combination of (a) the children's own intelligence; (b) children whose parents told them the truth telling their friends that Santa doesn't exist; and (c) t.v. and other media (don't they notice that Santa looks different depending on which actor plays him?) would not let it survive.

So, V.C. readers, enlighten me: when do kids stop believing in Santa?

104 Comments
Why Such a Large Drop In Bankruptcy Filings?

As the year closes out, it looks like the final tally for consumer bankruptcy filings for 2006 (the first full post-BAPCPA year) will be about 600,000 or so. Last year the figure was 2 million (in large part because of the pre-BAPCPA spike) and in 2004 it was about 1.5 million. So there has been a drop of roughly 60% from the prior levels.

Moreover, after the post-BAPCPA trough at the end of last year and the beginning of 2006, week-to-week filings have been virtually constant since April, with perhaps a very slight upward trend at most.

I'd be interested in hearing from readers, and bankruptcy practitioners in particular, as to what your experiences suggest about what is going on. The big question, of course, is whether there will be a permanent drop in the trend line on filings over the pre-BAPCPA levels.

Two possible hypotheses that I have heard don't seem to be consistent with the data that I have seen:

1. BAPCPA Hangover: One theory is that the system is still suffering from a BAPCPA hangover, and that everyone who was thinking of filing filed last October before the law went into affect. But this is hard to square with the observation that filing levels stabilized in the spring and have not subsequently bounced back to anything like their preexisting levels. Moreover, even if you add in all of the extraordinary pre-BAPCPA surge in filings (500,000) into 2006, you are still looking at a substantial drop from 2004 or BAPCPA-adjusted 2005.

2. Increased Cost and Complexity: Another theory is that increased cost and complexity of the system is simply making it more difficult for needy filers to get access to bankruptcy even though they need it. But if this is the case, then one would expect to see a spike in "informal bankruptcies," i.e., defaults by struggling consumers who need to file bankruptcy but are unable to do so for some reason. Yet looking at the Federal Reserve's data on delinquency rates and charge offs on consumer loans, there appears to be no increase in delinquencies on consumer loans, as one would expect were struggling consumers unable to get access to bankruptcy, and a drop in charge offs. FDIC data indicates that total chargeoffs appear to have fallen dramatically as well. So this data seems to be inconistent with the hypothesis that there are many struggling consumers out there who need bankruptcy relief but are unable to afford or navigate the new system.

This absence of an upward trend in delinquencies is especially striking given that there are othe forces that would have been expected to manifest themselves in higher delinquency rates regardless of bankruptcy. First, as a result of Fed policy, there was a general upward trend in interest rates for consumers as compared to the past few years. As adjustable rate mortgages and other variable rate consumer loans such as home equity loans and other consumer loans took this into account one would have expected a rise in deliquencies. Second, in January new regulations were adopted that increased the mandatory minimum payment on credit cards. That too should have exerted upward pressure on consumer credit defaults, especially on credit cards. Yet there is still no upward spike.

A third hypothesis is that despite some hiccups, BAPCPA has been working largely as Congress intended so far in diverting various categories of debtors out of bankruptcy while preserving relief for those who need it.

I'd like to hear from you in the Comments and on two points in particular. First, from debtor and creditor pracitioners as to what you think is causing the drop in the filings and in particular how the composition of filers has changed (if at all). Second, I'd be interested in hearing any additional hypotheses other than the three I have described, as to what is going on.

Please keep comments civil and substantive. I am hoping to collect experiences here as a centralized repository for scholars that can be used to generate testable hypotheses about what is going on out there.

Update:

To clarify my bleg just a bit--I'm also looking for impressions as to whether particular provisions of BAPCPA have had an especially strong "bite." For instance, are we seeing a dramatic drop in repeat filings? Cases with suspected fraud? High-income filers? Cases with auto cramdowns (although it appears that chatper 13 filings have risen as a percentage of cases)?

Related Posts (on one page):

  1. Foreclosures:
  2. Why Such a Large Drop In Bankruptcy Filings?
18 Comments

Tuesday, December 19, 2006

The Origin of "On All Fours": One of the legal profession's stranger expressions is that a case is "on all fours" with another case. It means that the former case raises the same facts and legal principles as the latter and is therefore highly relevant as a precedent. You might wonder, what's the origin of the phrase "on all fours"? The answer turns to be kind of interesting.

  According to Michael Quinion's World Wide Words, the phrase "on all fours" originally conjured an image of a four-legged animal like a dog. "On all fours" was originally "on all four," with the word "leg" assumed, so the phrase meant "on all four legs." An animal that walked on all four legs was a strong, stable, and certain animal, as compared to an animal with a bad leg that would have a limp or other unsteady gait.

  How do you get from a phrase meaning strong and stable to a phrase meaning a strong analogy? Here is Quinion's explanation:
In the eighteenth century, people started to use to run on all four as a figurative expression to describe some proposition or circumstance that was fair or equitable, well-founded, sturdily able to stand by itself. To be on all four or to stand on all four meant to be on a level with another, to present an exact analogy or comparison with something else (presumably the image is of two animals standing together, both on all four legs, hence in closely similar situations).
  Now, I don't know if that latter explanation is right. If it is, though, it means that when a lawyer says that one case is "on all fours" with another, he's asking the court to imagine two dogs standing next to each other. Who knew.

Related Posts (on one page):

  1. "Running on All Fours":
  2. The Origin of "On All Fours":
31 Comments
"Magic Mushrooms" Supposedly Good for You -- No, Seriously:

A Johns Hopkins press release reports:

Using unusually rigorous scientific conditions and measures, Johns Hopkins researchers have shown that the active agent in “sacred mushrooms” can induce mystical/spiritual experiences descriptively identical to spontaneous ones people have reported for centuries.

The resulting experiences apparently prompt positive changes in behavior and attitude that last several months, at least.

The agent, a plant alkaloid called psilocybin, mimics the effect of serotonin on brain receptors-as do some other hallucinogens-but precisely where in the brain and in what manner are unknown.

An account of the study, accompanied by an editorial and four experts’ commentaries, appears online today in the journal Psychopharmacology....

All of the study’s authors caution about substantial risks of taking psilocybin under conditions not appropriately supervised. “Even in this study, where we greatly controlled conditions to minimize adverse effects, about a third of subjects reported significant fear, with some also reporting transient feelings of paranoia,” says Griffiths. “Under unmonitored conditions, it’s not hard to imagine those emotions escalating to panic and dangerous behavior.”

The researchers’ message isn’t just that psilocybin can produce mystical experiences. “I had a healthy skepticism going into this,” says Griffiths, “and that finding alone was a surprise.” But, as important, he says, “is that, under very defined conditions, with careful preparation, you can safely and fairly reliably occasion what’s called a primary mystical experience that may lead to positive changes in a person. It’s an early step in what we hope will be a large body of scientific work that will ultimately help people.” ...

In the study, more than 60 percent of subjects described the effects of psilocybin in ways that met criteria for a “full mystical experience” as measured by established psychological scales. One third said the experience was the single most spiritually significant of their lifetimes; and more than two-thirds rated it among their five most meaningful and spiritually significant. Griffiths says subjects liken it to the importance of the birth of their first child or the death of a parent.

Two months later, 79 percent of subjects reported moderately or greatly increased well-being or life satisfaction compared with those given a placebo at the same test session. A majority said their mood, attitudes and behaviors had changed for the better. Structured interviews with family members, friends and co-workers generally confirmed the subjects’ remarks. Results of a year-long followup are being readied for publication.

Psychological tests and subjects’ own reports showed no harm to study participants, though some admitted extreme anxiety or other unpleasant effects in the hours following the psilocybin capsule. The drug has not been observed to be addictive or physically toxic in animal studies or human populations....

Related Posts (on one page):

  1. Scientific Study of Magic Mushrooms and Mystical Experience:
  2. "Magic Mushrooms" Supposedly Good for You -- No, Seriously:
62 Comments
Blunt Object Control -- The Next Frontier:

Medical News Today (seemingly a U.K. site) reports:

The prevention of attacks involving kicking or blunt objects is just as important as preventing knife violence, new research from Cardiff University shows.

A team from the University's Violence Research Group found that injuries inflicted with feet were more likely to result in severe injury than any other method of assault....

Professor Jonathan Shepherd, who led the research, said the surprisingly severe injuries from kicking and blunt objects should make them just as high priorities as knives in violence reduction strategies.

Professor Shepherd said: "This might be achieved through public awareness campaigns and tackling alcohol misuse to reduce the chances of people falling over, since victims of violence are usually kicked after they have fallen.

"We also need to take action to reduce the availability of blunt objects coming to hand in licensed premises and city centre streets."

Thanks to Will Brink for the pointer.

UPDATE: Of course, this is the country that gave us the Millwall brick, an improvised blunt weapon made out of rolled-up newspaper, I take it that they need to take action to reduce the availability of newspapers, too. Oh, and "The newspaper sheets can first be wetted with a liquid such as beer or urine to add weight." Charming.

29 Comments
Federalist Society Faculty Conference: Law professors among the VC readership who plan to attend the AALS annual meeting on January 3-6 should also consider attending some events across the street (both physically and ideologically) at the Federalist Society's Annual Faculty Conference. The Federalist Society's faculty events tend to be much more engaging and substantive than the typical fare at the AALS; they consist mostly of panels on controversial "hot topics" and short academic paper presentations by individual faculty members.

  You can see the schedule for the conference here. I'm particularly interested in two panels, both of which happen to include fellow Conspirators: 1) "May the President disregard a congressional statute for national security reasons?", featuring John Yoo, Louis Fisher, co-blogger Ilya Somin, and Sai Prakash, moderated by Doug Kmiec; and 2) "The new movement to use originalism to justify the living Constitution," which will include co-blogger Randy Barnett, John Harrison, Michael Rappaport, and Kermit Roosevelt, and will be moderated by John McGinnis.
4 Comments
On the Other Hand, 10 Years Is Much Too Short a Sentence for This:

From United States v. Kane, decided yesterday by the Eighth Circuit (thanks to How Appealing for the pointer). Ruth Kane let Joe Champion sexually abuse Kane's daughter 200 times over two years, starting when the daughter was nine, and even "physically participated and restrained her daughter" during some of the acts. "Kane's daughter and Champion testified Kane received payments of $20 from Champion as compensation for providing her daughter for Champion’s sexual gratification."

Kane had been sentenced to 17.5 years under the federal Sentencing Guidelines; but after the Supreme Court's decision that the Guidelines couldn't be constitutionally applied, tje trial court resentenced her to 10 years. The Eighth Circuit reversed, holding that "Kane’s 120-month sentence quite simply is not proportional to the circumstances of the crimes and the persons involved."

39 Comments
Courtroom Anecdote:

The Miami Herald quotes this anecdote allegedly involving veteran attorney Sy Gaer:

Attorney: I'm here on a mission of mercy for this poor innocent child, your honor.

Judge: How old is this 'poor child'?

Attorney: He's 23 years old, your honor ... a babe in the woods.

Judge: If I recall, once you reach 18, you're not a child anymore.

Attorney: I have suits that are older, your honor.

Judge: You have speeches that are older. I've heard them all Mr. Gaer. Motion denied.

Thanks to How Appealing for the pointer.

8 Comments
Now Here's a Teen Oral Sex Scandal for You:

Here's data on the "Percentage of Never Married Teen Males Ages 15 to 19 Who Have Had Oral Sex, by Sex Type and Sexual Experience, 1995 and 2002" (table 1):

19952002
Given oral sexReceived Oral sexGiven oral sexReceived Oral sex
Total38.649.438.451.2
   Hispanic36.843.635.547.3
   Non-Hispanic white41.850.844.252.9
   Non-Hispanic black20.547.120.556.6
Have not had sexual intercourse11.715.412.820.7
   Hispanic8.79.65.414.8
   Non-Hispanic white12.816.715.122.9
   Non-Hispanic black1.15.65.919.9
Have had sexual intercourse60.877.465.583.5
   Hispanic57.468.359.773.2
   Non-Hispanic white70.584.680.490.2
   Non-Hispanic black26.159.128.275.6

Even in 2002, the "received" fraction exceeds "given" by nearly 13%, and even more among some ethnic groups. Say what you will about raising a generation of teenagers who have more premarital sex than before (in my view, that's pretty troubling in some ways, inevitable in many ways, obviously less troubling once we get higher in the age range, just fine and on balance quite pleasant for many teenagers who have sex safely and responsibly, and very bad for many teenagers and adults who don't have sex safely and responsibly). But regardless of all that, there's just no excuse for raising a generation of selfish cads.

Among girls, by the way (table 2), the direction of the difference is similar — more reported having received than given — but by a smaller percentage (6% overall). For whatever it's worth, among the richer teenagers (family income at 300% or more of poverty), both males and females have more oral sex, and the "selfishness gap" declines, though the data I cite doesn't control for race or for family structure.

The data of course reports only whether respondents have had oral sex at least once; it doesn't report on the frequency of giving and of receiving. My fear is that the selfishness gap there will be even greater ....

53 Comments
Religious Extremism of a Different Sort

(or maybe not so different after all): Ha'aretz reports:

Miriam Shear says she was traveling to pray at the Western Wall in Jerusalem's Old City early on November 24 when a group of ultra-Orthodox (Haredi) men attacked her for refusing to move to the back of the Egged No. 2 bus....

Shear, an American-Israeli woman who currently lives in Canada, says that on a recent five-week vacation to Israel, she rode the bus daily to the Old City to pray at sunrise. Though not defined by Egged as a sex-segregated "mehadrin" bus, women usually sit in the back, while men sit in the front, as a matter of custom.

"Every two or three days, someone would tell me to sit in the back, sometimes politely and sometimes not," she recalled this week in a telephone interview. "I was always polite and said 'No. This is not a synagogue. I am not going to sit in the back.'"

But Shear, a 50-year-old religious woman, says that on the morning of the 24th, a man got onto the bus and demanded her seat — even though there were a number of other seats available in the front of the bus.

"I said, I'm not moving and he said, 'I'm not asking you, I'm telling you.' Then he spat in my face and at that point, I was in high adrenaline mode and called him a son-of-a-bitch, which I am not proud of. Then I spat back. At that point, he pushed me down and people on the bus were screaming that I was crazy. Four men surrounded me and slapped my face, punched me in the chest, pulled at my clothes, beat me, kicked me. My snood [hair covering] came off. I was fighting back and kicked one of the men in his privates. I will never forget the look on his face."

Shear says that when she bent down in the aisle to retrieve her hair covering, "one of the men kicked me in the face. Thank God he missed my eye. I got up and punched him. I said, 'I want my hair covering back' but he wouldn't give it to me, so I took his black hat and threw it in the aisle."

Throughout the encounter, Shear says the bus driver "did nothing." The other passengers, she says, blamed her for not moving to the back of the bus and called her a "stupid American with no sechel [common sense.] People blamed me for not knowing my place and not going to the back of the bus where I belong."

According to Yehoshua Meyer, the eyewitness to the incident, Shear's account is entirely accurate. "I saw everything," he said. "Someone got on the bus and demanded that she go to the back, but she didn't agree. She was badly beaten and her whole body sustained hits and kicks. She tried to fight back and no one would help her. I tried to help, but someone was stopping me from getting up. My phone's battery was dead, so I couldn't call the police. I yelled for the bus driver to stop. He stopped once, but he didn't do anything. When we finally got to the Kotel [Western Wall], she was beaten badly and I helped her go to the police."

On the other hand,

"In a thorough inquiry that we conducted, we found that the bus driver does not confirm that any violence was used against the complainant," Egged spokesman Ron Ratner wrote.

"According to the driver, once he saw that there was a crowd gathering around her, he stopped the bus and went to check what was going on. He clarified to the passengers that the bus was not a mehadrin line and that all passengers on the line are permitted to sit wherever they want on the bus. After making sure that the passengers returned to their seats, he continued driving."

72 Comments
Sex and Liberty:

Doug Berman (Sentencing Law & Policy) also asks, about the Wilson story (the 10-year prison term for a 17-year-old boy having oral sex with a 15-year-old girl): "Doesn't this story sound like one we might hear from some repressive foreign country, and not from a state in a country that supposedly prides itself on liberty and freedom?"

I think the matter is more complex than what Prof. Berman's "provocative question[]" suggests, in two ways.

1. Most obviously, the debate here is about conduct involving minors, and about the length of the sentence. To my knowledge, even Prof. Berman doesn't argue that if Georgia "prides itself on liberty," it must completely decriminalize sex between 17-year-olds and 15-year-olds. At the very least, a decision whether to outlaw sex between 17- and 15-year-olds is within a liberty-loving country's judgment, given that one underlying premise of liberty -- people's right to make choices -- assumes a competence to make choices that may well be lacking in 15-year-olds. And while the length of the sentence is relevant to whether the law is sensible, fair, or merciful, I'm not sure it tells us much about the state's commitment to "liberty," especially where minors are involved.

2. On the other hand, we need to acknowledge that the origins of the pre-2006 Georgia law, which had much harsher sentences for oral sex between 17-year-olds and 15-year-olds than for genital sex between 17-year-olds and 15-year-olds, stem from something far broader than just sex involving minors: To this day, a Georgia statute (§ 16-6-2) expressly outlaws "any sexual act involving the sex organs of one person and the mouth or anus of another," and punishes it with one to twenty years in prison. It was only a 1998 Georgia Supreme Court decision, Powell v. State, that decriminalized consensual oral sex (even between spouses!), by holding -- five years before Lawrence v. Texas -- that the state constitution protected such sexual autonomy.

As I understand it, the pre-2006 rules having to do with sex with minors stemmed from precisely this legal background: Consensual genital sex among adults was lawful, and when it was done with under-16-year-olds the law didn't treat it very harshly so long as the other party was 18 or younger. But consensual oral sex among adults was a crime, and there was no special solicitude for sex between two relatively young people. So while the pre-2006 rule as to oral sex with under-16-year-olds wasn't particularly contrary to liberty, it did stem from a rule that was indeed a substantial restraint on liberty -- a ban on what consenting adults, including consenting married adults, could do in their own home (and what 75% of adult Americans of all ages have in fact done, and what 60% find "very appealing" or "somewhat appealing" to receive, Michael et al., Sex in America (1994) (1992 data)).

Yet as I understand it was also a substantial restraint on liberty that had been prevalent (though, as in America, very rarely enforced) even in otherwise free countries (especially Anglophone ones) until recently. Some American states may be fairly late in decriminalizing such sex, but late by a matter of a few decades rather than centuries. The bottom line is that, despite libertarian views about liberty being indivisible, different countries have historically respected different forms of liberty -- America has been more liberal as to free speech (especially speech not related to sex) and, at least until recently, less as to sex; other countries have been the other way around; different countries have different views about economic liberties, about freedom to own the tools needed to defend one's life against criminals, and the like.

So the story, once one looks closely at it, sounds like what it is: One we might hear from a country that has had a relatively restrictive view of sexual liberty until quite recently, and still in some measure exhibits relics of that view, no matter what its views of other liberties might be.

17 Comments
Race and the Wilson Case:

Lawprof Doug Berman (Sentencing Law & Policy) asks: "Had Wilson been white, would he even had been charged with this offense, let alone sentenced to 10 years imprisonment?" "Had Wilson been white, would the Georgia legislature have made its subsequent change in the law retroactive to give Wilson the more sensible justice all others will now receive?"

One can always speculate this way; but it's not clear to me why this is a sensible speculation. The girls with whom Wilson had sex — the alleged rape victim, and the 15-year-old whom the oral sodomy age-of-consent is supposed to be protecting — are black, too. (See this story.) As the article paraphrases the prosecutor's view, "Had he not pursued charges against the boys, his critics could have just as easily chastised him for failing to protect the rights of the two black females. 'I'm standing up for African-American victims in this case, as I would for any white victim,' says [the prosecutor] .... 'Calling me a racist denigrates the people who are victims in this case.'"

Harvard lawprof Randy Kennedy had made this point in other contexts as well — since most crime is intraracial, seeing prosecutors or police being tough on black criminals (and the defendant in this case did indeed commit a crime) may simply mean that they're trying to protect black victims. Conversely, an environment in which prosecutors are afraid to take a hard line against black criminals because of the fear of being assumed to be racist is an environment that's not good for law-abiding blacks.

So I see little reason to assume that there's much of a racial dimension here. I continue to think the law is too harsh, and unreasonably so in its different treatment of post-2006 behavior vs. pre-2006 behavior and of oral sex vs. genital sex. But while one can always speculate about alleged prosecutor racial bias, I don't see much grounds for anything but speculation here.

26 Comments
Goldberg on "Liberaltarians":

NRO's Jonah Goldberg weighs in on the prospects of a Liberal-Libertarian fusion, such as that advocated by Brink Lindsey. Among Goldberg's more interesting claims is that a significant portion of the libertarian movement has shifted its focus (and here I paraphrase) from "freedom from coercion" to "freedom from constraint." In Goldberg's words:

Libertarianism was once primarily concerned with negative liberty — i.e. delineating a zone free of government intrusion. Meyer’s libertarianism was primarily concerned with the ability of the individual to find the virtuous path within “an objective moral order based on ontological foundations” best expressed in Western civilization. As such, fusionism was less a coalitional doctrine than a metaphysical imperative.

That was then, but this is now.

[A]ccording to today’s leading libertarians, economic freedom’s virtue lies in its ability to provide everybody the custom-made lifestyle of his choice. . . . This emphasis on the liberating power of technology and wealth — i.e., materialism and positive liberty — represents an enormous philosophical transformation within libertarianism that echoes, albeit faintly, elements of the economic liberalism of John Dewey and FDR. It also shows that today’s libertarians have a different view of the 1960s than their forefathers.

Goldberg acknowledges that conservatives have changed as well -- and are far more friendly to big government than they once were -- but he thinks libertarians need to acknowledge their evolution as well.

if the conservative-libertarian union is in trouble, it’s not solely because conservatives have strayed from their vows. Marriages tend to dissolve when both parties “grow apart,” and libertarians have been doing quite a bit of growing themselves. “You’ve changed” is a fair accusation from both sides, though “I don’t even know you anymore” is surely an exaggeration. Perhaps the real lesson here is that conservatives and libertarians need to recommit themselves to the fusionist project. In other words: Let’s seek counseling.

33 Comments
A Moral Code for Counterterrorism:

My colleague Amos Guiora comments in today's Baltimore Sun on the Israeli High Court's recent decision allowing the use of targeted killings as a method of preemptive counterterrorism. Here is a taste:

The decision, the last in Mr. Barak's corpus of rulings on fighting terrorism, is the final piece in a puzzle of judicially mandated rules for how an army should conduct operational counterterrorism. Mr. Barak's Supreme Court decisions over the past 15 years reflect a realization that damage to democracy and human rights outweigh whatever operational advantages commanders can gain from judicial ambiguity. Operational success would be enhanced by a strict moral and legal code.

The ruling establishes a checklist of how the state is to proceed in these cases. Harming civilians who "take direct part in hostilities," as defined in the decision, "even if the result is death, is permitted, on the condition that there is no other means which harms them less, and on the condition that innocent civilians nearby are not harmed. Harm to the latter must be proportional. That proportionality is determined according to a values-based test, intended to balance between the military advantage and the civilian damage."

I don't always agree with Amos' conclusions, but his wealth of counter-terrorism experience is often the source of tremendous insight. It's one thing to opine about how states should cobat terrorists from the security of an academic office. It's quite another to base one's opinions on years of work in the field.

Related Posts (on one page):

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

Monday, December 18, 2006

Could Irradiation Eradicate E.Coli?

Probably not, but it could help prevent many E.Coli outbreaks and reduce foodborne illness in the United States. As the WSJ editorializes today:

The American Medical Association, the Centers for Disease Control (CDC), the Food and Drug Administration and the World Health Organization have all certified that a big reduction in disease could result from irradiating foods.

Says Michael Osterholm, director of the Center for Infectious Disease Research at the University of Minnesota: "If even 50% of meat and poultry consumed in the United States were irradiated, the potential impact on foodborne disease would be a reduction in 900,000 cases, and 350 deaths." A 2005 CDC assessment agrees: "Food irradiation is a logical next step to reducing the burden of food borne diseases in the United States." . . .

The Centers for Disease Control concluded its investigation by noting: "An overwhelming body of scientific evidence demonstrates that irradiation does not harm the nutritional value of food, nor does it make the food unsafe to eat." According to Paisan Loaharanu, a former director at the Food and Agriculture Organization of the United Nations, "The safety of irradiated foods is well established through many toxicological studies. . . . No other food technology has gone through more safety tests than food irradiation."

If the use of food irradiation would help protect public health, why isn't it used? Anti-technology activists, including many self-appointed "consumer" groups, have given it a bad name (largely due to its tangential association to nuclear power), and spread anti-irradiation misinformation.

Irradiation would not eliminate all food borne illness, to be sure, but there's no reason not to encourage its use where appropriate.

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Anti-Evolution Suit in Russia:

A Russian school girl is challenging the teaching of evolution as a violation of her religious liberty. Kristi Bowman has some details (and is looking for more) on BioLaw here.

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Why Legalizing Marijuana Is Unlikely to Bring in Much in Excise Taxes,

from Jacob Sullum (Hit & Run). I don't know much about drug policy (which is why I blog so rarely about it), but this seemed like a particularly thoughtful and level-headed post. There are plenty of arguments -- including fiscal arguments -- for legalizing marijuana, but the excise tax argument does indeed seem relatively weak.

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Merits Brief in Scott v. Harris: As readers of my now-dormant solo blog may recall, my 2-year post-clerkship prohibition on Supreme Court practice ended in July; since then, I have been looking for interesting cases to help with on a pro bono basis. In light of that, I am pleased to report that I joined the team representing the petitioner Timothy Scott at the merits stage of Scott v. Harris, No. 05-1631, a Fourth Amendment and qualified immunity case involving a high-speed car chase.

  The Court granted cert in late October, and we filed our merits brief last week. I have posted a copy of our brief here. You can download a copy of the petition for certiorari (together with the lower court opinion) here. I plan to post additional briefs as more are available, and I may also post the video of the pursuit that was taken from Scott's squad car. (As this post involves pending litigation, I am not opening the usual comment thread. Readers with comments can e-mail me at my gwu.edu account.)

Related Posts (on one page):

  1. Oral Argument in Scott v. Harris:
  2. Briefs in Scott v. Harris:
  3. Merits Brief in Scott v. Harris:
Nice Present for Law Students:

I thought I'd take the liberty to pitch again my Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review (2nd ed. 2005), as a nice Christmas / New Year's present for your law student friends or relations (or for yourself):

  1. First-year students can use it to help them get onto a law journal, and can also use some of the tips in the Writing section for their first-year writing class.
  2. Second-year students can use it to write a law journal note.
  3. Both second-year and third-year students can use it to write seminar papers, and to do independent writing projects.
You can find reader reviews at amazon, and some other unsolicited messages from readers here. Here are a few more than have come in since then:

Matt Carlson: "Your Academic Legal Writing book is excellent — I read it before trying out for law review recently and found it to be extremely helpful. I am happy to say that I made the law review as a 1st year staff member, and will definitely continue to use your book in writing my articles this summer."

B.A. Cooper: "Last Fall, I approached one of my professors, and told her that I was interested in academia, and that I would like to begin my legal writing career immediately. She told me, in no uncertain terms, that your book 'Academic Legal Writing' was a must. I ordered a personalized copy soon after that, and I am happy to report that my first article has already been accepted as an 'essay' in the upcoming Fall issue of the Regent University Law Review. I just wanted to say thank you for providing such a wonderful resource." Update some months later: "[P]erhaps in part part because I was published as a first year student, I have now been accepted to the University of Texas as a transfer student. In addition, my most recent article has made it past the initial screening at [a well-regarded specialty journal], and will soon be peer reviewed .... So thanks again for your book!"

Steven R. Obert: "Thank you for the legal writing and publishing advice contained in your book. I followed it exactly, and recently found out that my paper, 'Public Prayer in the Navy: Does It Run Afoul of the Establishment Clause?' will be published in the next issue of the Naval Law Review."

Jason Watson: "I was just writing to let you know how helpful your book on academic writing has been. I'm a 1L at Valparaiso Law and we have our case comment assignment approaching, as well as Law Review tryouts after finals. My writing teacher ... recommended your book and, being a dedicated fan of the website, I picked it right up. It's been a great resource, I wish I'd had it while writing my Appellate Brief. I hope I'm the only one here at Valpo to get it, I NEED an edge to get on Law Review!" Update some months later: "I made Law Review. I'm sure your book played a big part. I wrote on, too, which I'm strangely proud of. I'm in the top third of my class but my grades didn't get me the spot."

Roman Goldstein: "Allow me to thank you for writing an excellent chapter on how to make law review. True, I think it's especially excellent because I followed your advice and made law review. But even had I not made law review, I would have thought the chapter was good: you provided a road map that made the competition manageable and even enjoyable. Also, I'd like to thank you for demystifying a bit of law school. Too much of law school is hide-the-ball, especially when it comes to grades and exams. Your chapter on law review (and indeed the book as a whole), on the other hand, made the expectations and objectives of the competition clear. I will of course use your book when I write my note."

Guy Carmi: "I read and implemented your tips in your 'Academic Legal Writing' book. I got more than 20 offers ... [and] finally accepted offers from the University of Pennsylvania Journal of Constitutional Law and the Oxford University Comparative Law Forum, also thanks to your tips regarding copyright management of the piece. This is going to be my third publication, but I feel that had I read your book earlier, I could have done better with the two previous pieces. I simply felt a need to thank you personally for the indispensable advice you share in your book."

The book should be available from amazon. Make sure you order the Third Edition (that's the link to which I just pointed). For the Third Edition, the publisher is no longer sending me author's copies for signing and resale; but if you'd like me to send you a free personalized bookplate (basically just a label) to be pasted inside the book, just e-mail me at volokh@law.ucla.edu and tell me (1) the name and address to which you want the bookplate sent, and (2) the inscription you'd like me to use.

The book should be available from Legal Books Distributing and from amazon. You can also get a personalized copy from me; the publisher was good enough to send me a few dozen. Just send to volokh@law.ucla.edu a paypal draft for $27.99, which is what amazon charges (given the cover price and shipping). Please include (1) the name and address to which you want the book sent, and (2) the inscription you'd like me to use. Or, if you prefer snail-mail, just send a check and those two all-important pieces of information to:

Eugene Volokh
UCLA School of Law
405 Hilgard Ave.
Los Angeles, CA 90095

Note that if you want to make sure the book arrives by December 25, please e-mail me first and let me know which mailing option you'd like me to use; I'll then figure out how much that costs, and ask you to add that amount minus $4 (the usual rough mailing cost) to the $27.99.

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Will Isiah Get Off Easy?

Today the National Basketball Association handed out substantial suspensions to the players involved in Saturday's brawl during the Denver Nuggets-New York Knicks game at Madison Square Garden. NBA Commissioner David Stern issued 47 days worth of suspensions in total, and fined each organization $500,000. NBA scoring leader Carmelo Anthony got the biggest penalty. His 15 game suspension is the sixth-longest in league history.

Whether or not the league was too hard on Anthony, as Marc Stein argues (I'm inclined to disagree), the big question is whether the league will sanction Knicks coach Isiah Thomas for encouraging (if not directing) Knicks' rookie Mardy Collins to commit the flagrant foul that sparked the fight. According to several reports (and, apparently, the game tape) Thomas warned Anthony before the foul: “Hey, don’t go to the basket right now. It wouldn’t be a good idea. I’m just letting you know.”

Thomas' explanation, that he was encouraging Anthony to show more class than his coach and not run up the score, doesn't pass the laugh test (especially given Thomas' own history of sharp play). It seems it was enough for David Stern, however. The New York Times is reporting that Isiah has been "effectively cleared" for his role in instigating the melee.

“My finding was that there was not adequate evidence upon which to make a determination,” Commissioner David Stern said in a conference call. “You have to find something in order to suspend someone. Even in the N.B.A., there’s a presumption of innocence.”
Speaking of class, Anthony issued a gracious apology for his role in the altercation.Yet as of this morning, Thomas remained unrepentant, claiming that Nuggets coach George Karl "put his players in a very bad position" by not removing his starters at the end of the game.

[For those interested, my comments on the last major "basketbrawl" can be found here.]

UPDATE: Apparently I am not the only one who thinks Isiah Thomas got off easy. When I last checked, the respondents to this ESPN poll thought most of the suspensions were about right, but that Isiah Thomas deserved a suspension too.

Related Posts (on one page):

  1. Melo Won't Appeal Suspension:
  2. Will Isiah Get Off Easy?
39 Comments
Sweet Smell of Service:

That's the name of Iranian President Mahmoud Ahmadinejad's party, it appears -- "a name that perplexes even Iranians."

4 Comments
Free To Choose:

Joe Malchow reports that ideachannel.tv has posted all of the episodes of Milton Friedman's "Free To Choose."

1 Comments
Would the Supreme Court Agree With Judge Fogel's View of the 8th Amendment?: In a memorandum handed down on Friday, Judge Fogel of the Northern District of California concluded that the Eighth Amendment requires relatively careful judicial scrutiny of how the state of California implements the death penalty. There are a lot of complicated issues here, but I'd like to focus on just one very narrow question: If this issue gets to the Supreme Court, how likely is it that a majority of the Supreme Court would agree with Judge Fogel's view? I tend to think it's not very likely.

  First, a little bit of background. The Supreme Court has said that "the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Whitley v. Albers, 475 U.S. 312, 319 (1986). "Among 'unnecessary and wanton' inflictions of pain are those that are 'totally without penological justification." Rhodes v. Chapman, 452 U.S. 337, 346 (1981). For example, deliberate indifference to an inmate's serious medical needs can be cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97 (1976) (untreated back injury). As far as I know, the Supreme Court has never directly applied these principles to methods of execution. We have a general principle that the unnecessary and wanton infliction of pain violates the 8th Amendment, but we don't have any Supreme Court guidance on the degree of scrutiny given to whether a particular infliction of pain is "necessary" or "unnecessary" in the context of steps that are part of an execution.

   As I read Friday's memorandum, Judge Fogel appears to interpret this guidance as establishing that a system of capital punishment needs to be carefully designed to ensure that the risks are as low as is reasonably possible that the punishment might involve the unintentional infliction of pain. Instead of considering whether the government's intent is to execute the condemned without pain — which all agree it is, I believe — Judge Fogel is focused on the risks that the condemned may feel pain because the government might make an error. Specifically, is the state's system of capital punishment sufficiently trustworthy that it gives Judge Fogel "constitutionally adequate assurance" the condemned inmate will feel no pain?

  Of particular interest, Judge Fogel suggests that it may be difficult to figure out how a state can satisfy this constitutional duty of care. His opinion suggests it may require considerable additional study. He writes that "a single, brief meeting primarily of lawyers, the result of which is to tweak" existing practice is unlikely to be enough to satisfy him; to be satisfied, he "may require consultation with independent experts and with other jurisdictions" and a review of "contemporaneous records of executions, such as execution logs and electrocardiograms." As I read his opinion, Judge Fogel believes that if a state wants to have a system of capital punishment, the method of execution must be professional, well-functioning, and reliable. Further, it is up to judges to evaluate each system to determine if that state's system is sufficiently professional and reliable to satisfy the Constitution.

  If this issue went up to the Supreme Court, would the Justices agree with this approach? Gazing into my crystal ball, I tend to think they would not. Having a more professional death penalty system sounds like a very good idea on policy grounds, but I doubt that a majority of the Supreme Court would demand it as a matter of constitutional law. First, I don't know of any Supreme Court authority that directly supports such close scrutiny of the details of executions. And second, I doubt the Justices would want to set new constitutional standards that may require close judicial scrutiny in each execution. Presumably that would require hearings about the existing status of the death penalty system before every execution around the country, including appellate review of that hearing, introducing additional years of delay to each case. I suspect that the Court would be willing to rule out methods of execution that are clearly too risky if easier alternatives are readily available, but I doubt a majority would set a standard that requires such detailed judicial scrutiny of the process as Judge Fogel has in mind.

  That's my guess of where the Court is, anyway. I gather Judge Fogel's plan is to not to find out; the end of his opinion makes clear that he wants the state of California to work with him rather than take the issue upstairs. I don't know enough about the politics of the death penalty in California to know if the Governor is likely to to that. But I suspect that the Supreme Court would have a different approach if the issue came before them, either in this case or in another one.

  For more writing on Judge Fogel's opinion, check out critical posts from Patterico and Beldar (who describe the opinion as unsupported by existing law) and this favorable perspective from death penalty opponent Deborah Denno (who calls the opinion "bold" and "incisive").
35 Comments
Ten Years in Prison for 17-Year-Old Who Had Consensual Oral Sex with 15-Year-Old:

The Georgia Supreme Court just upheld this. The sentence strikes me as unduly harsh even on its own terms, but it seems especially unjustifiable given that:

  1. The age of consent in Georgia is 16.

  2. In 2006, the Georgia Legislature amended the statute to provide that oral sex between an under-18-year-old and a 13-to-15-year-old is only a misdemeanor, with a maximum penalty of a year in jail. This revised statute would have thus made the defendant's conduct a misdemeanor had he committed his crime after the statute's enactment, but the statute expressly provided that it wasn't retroactive.

  3. Even at the time the act occurred, genital sex between an under-18-year-old and a 14-or-15-year-old was also a misdemeanor.

  4. This defendant had no criminal record that would justify an especially long sentence.

Here's a brief opinion from presiding justice Carol W. Hunstein:

Wilson was convicted of aggravated child molestation based upon an act of oral sodomy performed on him by victim T.C., which was documented on videotape and seems to show that the victim's participation in the act was voluntary. Wilson was 17 years old at the time of the act; the victim was 15 years old. Pursuant to the version of the aggravated child molestation statute then in effect, Wilson was sentenced to ten years imprisonment without possibility of parole. See former OCGA § 16-6-4 (d) (1).

In 2006, the Legislature amended OCGA § 16-6-4 to provide, inter alia, that aggravated child molestation involving an act of sodomy is only a misdemeanor when the victim is between 13 and 16 years of age and the convicted person is 18 years of age or younger and is no more than four years older than the victim. OCGA § 16-6-4 (d) (2). Although the situation in this case would fall within the ambit of the current statute, which became effective July 1, 2006, while Wilson's appeal from the affirmance of his conviction by the Court of Appeals was pending before this Court, see Ga. L. 2006, p. 379, § 11/HB 1059, the Legislature expressly chose not to allow the provisions of the new amendments to affect persons convicted under the previous version of the statute. See id. at § 30 (c). Accordingly, while I am very sympathetic to Wilson's argument regarding the injustice of sentencing this promising young man with good grades and no criminal history to ten years in prison without parole and a lifetime registration as a sexual offender because he engaged in consensual oral sex with a 15-year-old victim only two years his junior, this Court is bound by the Legislature's determination that young persons in Wilson's situation are not entitled to the misdemeanor treatment now accorded to identical behavior under OCGA § 16-6-4 (d) (2).

The sentence sounds mandated by state statute, and I don't think there's any Cruel and Unusual Punishment Clause problem here. One can argue that the distinction between between genital sex and oral sex violates the Equal Protection Clause, but while this argument was accepted in a related context by the California Supreme Court, which held that the distinction lacked a rational basis, it was rejected by the Georgia Supreme Court in Odett v. State, 541 S.E.d 29 (2001), on the grounds that "General Assembly could reasonably conclude that the psychological well-being of minors is more damaged by acts of sodomy than by acts of intercourse" — not very plausible grounds, I think, but likely sufficient to pass the rational basis test (see also this related item from the California Appellate Report blog). The equal protection argument also seems to have been procedurally forfeited, because it wasn't raised until after the guilty verdict; and while the defendant might have argued that there's an equal protection violation in treating pre-2006 actors differently from post-2006 ones, that argument likely wouldn't work, either, and in any event likely wouldn't have been made.

But while the conviction is constitutionally permissible, it hardly seems like a just result. This is so even given that the sex here was public and videotaped and thus more likely to have been psychologically and emotionally injurious to the girl. Such uncharged and even not independently illegal aspects may be relevant in evaluating the overall moral fairness (though not legal validity) of the sentence, but they nonetheless don't seem sufficient to justify a 10-year-term here — especially when the same conduct would have been treated so much more lightly had it happened after the statute was changed, and had it involved genital sex (which tends to be more dangerous for the girl in various ways than oral sex).

The courts seem to have done their job right here, but the legislature didn't, and quite possibly the prosecutors didn't (though I realize that this raises complex questions about prosecutorial obligations). I hope, with Doug Berman (Sentencing Law & Policy), that the Georgia Board of Pardons and Paroles would correct this injustice.

Thanks to How Appealing for the pointer.

Related Posts (on one page):

  1. Genarlow Wilson's 10-Year Prison Sentence Set Aside as Cruel and Unusual Punishment:
  2. Sex and Liberty:
  3. Race and the Wilson Case:
  4. Ten Years in Prison for 17-Year-Old Who Had Consensual Oral Sex with 15-Year-Old:
173 Comments
James Madison, Gun Nut:

I was just reading James Madison's notes towards his autobiography, published by Douglass Adair in The William & Mary Quarterly, vol. 2, pp. 191-209 (1945), and on p. 208 appears the following statement:

A Government resting on a minority, is an aristocracy not a Republic, and could not be safe with a numerical & physical force against it, without a standing Army, and enslaved press, and a disarmed populace.

Madison was writing in the early 1830s, but I have no reason to think that this was some then-recent epiphany of his — it seems to be a mirror of what appeared to be received wisdom at the time, from Blackstone to St. George Tucker to Story: A disarmed populace, the theory went, was an invitation to tyranny (or at least to aristocracy or monarchy); an armed populace would be an important bulwark against such tyranny. Federalist No. 46, also written by Madison, expressed a similar view; but Madison's statement in his autobiography makes the point more unambiguously, and in a context that seems a sincere and mature statement of one's views and not just a political tract aimed at an imminent political goal.

Nor was Madison writing about the importance of maintaining armed state-run and state-limited groups as a counterweight to the federal government. His statement seemed to refer to general political principles, applicable to unitary governments (such as each state, or such as England as described by Blackstone, who also described the English right to have arms as a bulwark against oppression) as well as to federal ones.

Now I'm not sure that private arms — or at least private arms at the level that we're likely to tolerate, which is to say some privately owned infantry weapons but without privately owned warplanes, heavy armor, anti-aircraft weapons, and the like — are likely to do much to deter or fight government tyranny in America today. It's possible that they would have this effect, especially against relatively mild-mannered opppressors; but I certainly can't muster the confidence for this that Madison or others expressed. (UPDATE: See also my colleague Stephen Bainbridge's post; he's even more skeptical than I am on this.)

But it does seem pretty clear that the "private gun ownership as check on government tyranny" view was quite prevalent in the Framing era, and was closely tied to the right to keep and bear arms. If holding such a view today makes the holders "gun nuts," then James Madison was a gun nut, too.

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Approval Ratings for Supreme Court Justices?: According to this press release, Rasmussen Reports conducts public opinion polls that include approval/disappoval ratings for several individual Supreme Court Justices. Most people have no idea who the individual Justices are, so obviously this should be taken with several beaches' worth of salt. But for your amusement value only, the following Justices have the following approval ratings:
Chief Justice Roberts, 36% favorable / 26% unfavorable
Justice Thomas, 48% favorable / 36% unfavorable
Justice Ginsburg, 37% favorable / 35% unfavorable
Justice Alito, 35% favorable / 37% unfavaorable
Justice Scalia, 35% favorable / 35% unfavorable
Hat tip: Howard.
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"You Cannot Seriously Claim That [the Unemployed] Themselves Bear Guilt for Their Destiny":

So says a German Green Party member at the end of this AP story:

[Thirty-seven-year-old Henrico] Frank ..., in his usual grubby clothes, nose rings and partially bleached, spiked hair[, ...] chanced upon Kurt Beck, chairman of the Social Democrats and assailed him for the government’s failure to lift people like himself out of unemployment.

Beck replied, “If you’d just wash and shave, you’d find a job, too.”

Two days later, Frank lopped off his locks, shaved his dark beard and removed his nose rings. Then he organized a news conference.

“I am ready to change,” Frank said, saying he was fed up with handouts. “I’ll take any job.” ...

Frank's public conversion seems to have led to some job offers; and while of course this likely flows from the unusual publicity this case attracted, I'm pretty confident that even a quiet change in apperance to something that signals affinity for tradition rather than for self-expressive exuberance would substantially improve an applicant's chances for a job. (Perhaps not in the few careers where self-expressive exuberance is considered especially important, but those are very much the exception.)

Green Party parliamentarian (and, at least as of 2005, "labour market spokeswoman of the Greens") Thea Dueckert, however, responded: "With 4 million unemployed, you cannot seriously claim that the people themselves bear guilt for their destiny." If she's making the claim that there are structural and institutional factors outside each applicant's control that make unemployment more or less likely, she is surely right.

But if the claim is that most of the unemployed can't affect their chances of getting a job, and thus don't bear some responsibility for failure to get a job (and thus some guilt for this failure) — well, that's the sort of attitude that I suspect would still further exacerbate unemployment problems, whether the attitude is held by the individual unemployed or by leading politicians.

Thanks to blogger and Boston Herald city editor Jules Crittenden for the pointer.

31 Comments
Law School Teaching Methods:

It’s the time of year when we law professors, working on getting our exams ready (and then graded) and preparing our reading lists for next semester, can best contemplate the many, many oddities of the law school educational process. Here’s one with which I’ve become increasingly obsessed over the past few years: our bizarre insistence on shielding our students from having to read the full, unedited versions of court opinions in their reading material. The more I think about it, the odder it appears. The overwhelming majority of our courses use material – whether already compiled into a Casebook, or even instructor-prepared – in which the cases have been edited down into a more digestible form, so that only the “important” stuff remains. This, supposedly, helps the student focus on the important stuff (and, not insignificantly, keeps the casebooks from bloating even more than they already are).

It’s odd because the ability to read a case, and the ability to figure out what is, and what is not, the important stuff is one of the critical tasks that law students have to master, and our practice insures that they get hardly any practice at all, and no help from us, in mastering it. It would be as though graduate students in, say, 17th century English literature were presented only with bowdlerized versions of Milton’s work, so as to help them focus on the important stuff. It would be idiotic – and yet I am having increasing difficulty figuring out why our practice is not similarly idiotic. Reading a case from start to finish – plowing through all of it, figuring out who did what to whom, who sued whom, what the lower court(s) did, following each train of thought (even those that lead nowhere and are incomprehensibly set forth – ain’t easy; but given that one must learn how to do it, you’d think we’d look to maximize the number of opportunities we give our students to confront the task. Instead, we avoid them like the plague.

I’m going to try to put my money where my mouth is this coming semester (not the perfect metaphor, but you get what I mean). I’m going to be teaching a class in Introductory Intellectual Property; it’s quasi-experimental to begin with, inasmuch as it is for first-year students, part of our recently enacted menu of elective courses that our first-year students take in their spring semester. So I decided, first off, to scrap the Casebook I usually use when teaching this course to upper-level students, and to put together my own material. And I’ve decided that all of the cases I use will be in full text, no editing, right as you can pull them off of Lexis/Westlaw.

I know that means that they will encounter tons of “extraneous” stuff in their readings – that when we’re covering some narrow topic in copyright law (joint ownership, say), the cases might (as they often do) stray into other questions, even questions concerning other bodies of law, and they might (as they often do) present weird and inexplicable procedural postures, and they might (as they often do) wander around and beat around the bush and fail to present their ideas or their reasoning clearly. But that’s the nature of the legal world we are supposedly preparing our students to inhabit, and it seems to me the sooner they get exposure to that and some help in navigating through it, the better off they’ll be.

65 Comments
EU vs. USA on CO2:

European nations have assumed the mantle of global leadership on climate change while the United States sits on the sidelines. This standard narrative contains some truth, but it also grossly overstates Europe's demonstrated commitment to reducing greenhouse gas emissions. The reality is more complex.

While talking tough about the need to reduce emissions, many European nations are moving in the opposite direction. Only two (the United Kingdom and Sweden) look likely to meet their Kyoto targets, while some are falling woefully behind. In parts of Europe there is actually movement away from emission-free energy sources, such as nuclear power, toward carbon-based fuels due to other environmental concerns.

The implmentation of the E.U.'s emission trading scheme has facilitated this trend. Thus far, E.U. nations have refused to adopt emission caps that require actual emission cuts. To the contrary, the volume of emission allowances sought by E.U. nations has been greater than past emissions, making the trading scheme virtually worthless as an emission reduction scheme.

An editorial in today's WSJ (for subscribers only) adds some interesting statistics to this picture. From 1990-1995 and 1995-2000, the growth of carbon dioxide emissions in the U.S. was significantly greater than in the E.U. Since 2000, however, this has changed, as illustrated below.

U.S.E.U.
1990-19956.4%-2.2%
1995-200010.1%2.2%
2000-20042.1%4.5%
Consider also that from 2000-2004, the U.S. economy also grew at a much faster rate than did that of Europe, as did the U.S. population. Clearly, then, the U.S. must be doing something right when compared to the nations of Europe.

There is much to fault in U.S. climate policy, including the failure to cut subsidies for fossil fuels or provide greater opportunities for market-driven innovation in the energy sector, but Europe is hardly providing a model the U.S. should follow.

39 Comments

Sunday, December 17, 2006

Happy Saturnalia!

Today, December 17, is the first day of the traditional week-long ancient Roman festival of Saturnalia. Saturnalia was a major holiday that involved large amounts of drinking and partying and also role reversal between different social classes. For example, slaves got to play the role of masters and vice versa. Some historians believe that the early Christian Church set Dec. 25 as the date for Christmas in part to have a holiday of its own at the same time as Saturnalia in order to supplant a pagan festival with a Christian one. Here's a short description of Saturnalia from the Encyclopedia Romana:

During the holiday, restrictions were relaxed and the social order inverted. Gambling was allowed in public. Slaves were permitted to use dice and did not have to work. . . Within the family, a Lord of Misrule was chosen. Slaves were treated as equals, allowed to wear their masters' clothing, and be waited on at meal time in remembrance of an earlier golden age thought to have been ushered in by the god. In the Saturnalia, Lucian relates that "During My week the serious is barred; no business allowed. Drinking, noise and games and dice, appointing of kings and feasting of slaves, singing naked, clapping of frenzied hands, an occasional ducking of corked faces in icy water—such are the functions over which I preside."

In the law school world, maybe we could revive Saturnalia by having students and professors switch places for a day. I sure hope that some students might want to do my job this week, so that they can enjoy the process of grading the large pile of exams on my desk:). The "drinking, noise and games and dice" could also be fun. In any event, Happy Saturnalia everyone, especially to all of our Roman readers:).

Related Posts (on one page):

  1. Happy Saturnalia!
  2. Happy Festivus!
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Runners-Up For the Time Magazine "Person of the Year": As you may have heard, Time Magazine's "Person of the Year" has been named, and the person is "You." The magazine cover has a picture of a PC with the word "You" in the center, with text at the bottom that says, "Yes, you. You control the Information Age. Welcome to your world."

  The Volokh Conspiracy has obtained a secret list of the five runners-up for the Person of the Year, together with the text for the proposed cover page, and we are now able to leak that list to you. Here it is:
1. Your Parents. Text: "Yes, your parents. You wouldn't exist without them. 'Nuff said."

2. Santa Claus. Text: "He's coming to town soon. Get ready!"

3. Your best friend. Text: "Simply the best, this year and every year."

4. The Mailman. Text: "He delivered Time Magazine in all sorts of crazy weather. Our hero."

5. "That Guy You Met Last Week At That Meeting -- What's His Name? Gary? Barry? Crap, I Forget." Text: "Here's to all the regular people who made 2006 the year it was."
Feel free to offer your own suggestions in the comment thread.
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Major Cities - Environmental Friend or Foe?

Many environmentalists celebrate the environmental benefits of densely developed urban centers. Urban living reduces the scope of humanity's footprint on the earth in many ways. Not only do cities fit more people on less land, but urban density generates tremendous economies of scale that lead to greater energy efficiency and other material savings. There are environmental costs of density, to be sure. Air pollution tends to be higher in more densely populated areas, and the concentrated pollution flowing from dense areas will, in some circumstances, be more likely to overwhelm nature's inherent absorptive capacities. Nonetheless, environmental activists have long championed dense urban growth over the dominant alternative of suburban sprawl.

Environmentalist gadfly Jeremy Rifkin challenges this consensus in today's Washington Post. Rifkin argues that urbanization, combined with population growth, comes at a terrible environmental toll; "our burgeoning population and urban way of life have been purchased at the expense of vast ecosystems and habitats."

The flip side of urbanization is what we are leaving behind on our way to a world of hundred-story office buildings, high-rise residences and landscapes of glass, cement, artificial light and electronic interconnectivity. It's no accident that as we celebrate the urbanization of the world, we are quickly approaching another historic watershed: the disappearance of the wild. Rising population; growing consumption of food, water and building materials; expanding road and rail transport; and urban sprawl continue to encroach on the remaining wild, pushing it to extinction.
I am not much of a Rifkin fan, largely due to his Luddite view of modern technology, and I don't entirely accept his analysis. Nonetheless, I think this article is worth a read.

Related Posts (on one page):

  1. Bailey on Rifkin on Cities:
  2. Major Cities - Environmental Friend or Foe?
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Happy Festivus!

Although December 23 appears to be the generally accepted date for Festivus, many readers will be traveling and otherwise occupied next weekend, so I'd like to take this opportunity to wish you all readers Happy Festivus (the link is to the relevant clips from the Seinfeld episode where the holiday was introduced to the world). May you all have a healthy airing of grievances.

For those who have not yet ordered your aluminum Festivus pole, information is available here on where you can get one.

Also, Wikipedia has an excellent entry on Festivus and the story behind the Seinfeld episode. Wikipedia sets the unofficial date for Festivus as December 23.

Related Posts (on one page):

  1. Happy Saturnalia!
  2. Happy Festivus!
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Poli Sci's Limitations:

Daniel Drezner has an interesting post on "The Limits of Political Science."

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Sunday Song Lyric: Is it a sign of the apocalypse that "The Lonely Goatherd" from Rodgers and Hammerstein's The Sound of Music is used to open the latest Gwen Stefani pop dance track, "Wind It Up" off of her new album The Sweet Escape? The motif infuses Stefani's video as well. I know classic show tunes are supposed to be timeless, but this is a bit much for my tastes.


This sort of post-modern pop music mash up is a long way from Stefani's beginnings in No Doubt, both musically and lyrically. Take for example, "Just a Girl," from No Doubt's breakthrough album Tragic Kingdom. It was better pop music with better lyrics. Here's a taste:

I'm just a girl
I'm just a girl in the world...
That's all that you'll let me be!

I'm just a girl, living in captivity
Your rule of thumb
Makes me worry some
I'm just a girl, what's my destiny?
What I've succumbed to
Is making me numb
I'm just a girl, my apologies
What I've become is so burdensome
I'm just a girl, lucky me
Twiddle-dum there's no comparison.
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