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Saturday, January 13, 2007
Call the FCC?
During the first quarter of the New Orleans Saints-Philadelphia Eagles playoff game, the Fox broadcast lingered on a young lady wearing a t-shirt bearing the phrase "F*ck da Eagles" (albeint without the asterisk). Now I'm no expert on indecency law, but if Janet Jackson's wardrobe malfunction was an issue, wouldn't this be as well? [to be clear, I'm not defending the FCC's standards. I'm just wondering about the consistency of their application.]
UPDATE: I've correct the post ("da" instead of "the").
Discouraging Detainee Defense:
Paul Horwitz notes that the issue of which law firms are defending detainees also made it into a Wall Street Journal column by Robert Pollock on "The Gitmo High Life." The bulk of the column discusses the relatively comfortable treatment at least many of the Guantanamo detainees receive. Yet the article also picks up on the suggestion of an "administration official" that law firm representation of detainees should be a "scandal." Guantanamo detainees don't lack for legal representation. A list of lead counsel released this week in response to a Freedom of Information Act request reads like a who's who of America's most prestigious law firms: Shearman and Sterling; Wilmer Cutler Pickering Hale & Dorr; Covington & Burling; Hunton & Williams; Sullivan & Cromwell; Debevoise & Plimpton; Cleary Gottlieb; and Blank Rome are among the marquee names.
A senior U.S. official I spoke to speculates that this information might cause something of scandal, since so much of the pro bono work being done to tilt the playing field in favor of al Qaeda appears to be subsidized by legal fees from the Fortune 500. "Corporate CEOs seeing this should ask firms to choose between lucrative retainers and representing terrorists" who deliberately target the U.S. economy, he opined. This article should remove any doubt about the meaning of Cully Stimson's remarks and make absolutely clear that at least some within the administration are encouraging corporations to pressure law firms not to represent detainees.
This audio segment from NPR (LvHB) is also worth a listen, and the New York Times chimes in here.
UPDATE: This New York Times news report suggests that not all of the administration is on board with Cully Stimson — or at least not officially. In an interview on Friday, Attorney General Alberto R. Gonzales said he had no problem with the current system of representation. “Good lawyers representing the detainees is the best way to ensure that justice is done in these cases,” he said.
Neither the White House nor the Pentagon had any official comment, but officials sought to distance themselves from Mr. Stimson’s view. His comments “do not represent the views of the Defense Department or the thinking of its leadership,” a senior Pentagon official said. He would not allow his name to be used, seemingly to lessen the force of his rebuke. Mr. Stimson did not return a call on Friday seeking comment. I have also noticed that Stimson is a graduate of my alma mater, the George Mason University School of Law. [Ack!] I guess he must have slept through professional responsibility; he should have to take it again. Hilzoy is less forgiving: "if either having no clue whatsoever about how our legal system works or being willing to try to subvert it is grounds for disbarment, then Charles Stimson should be disbarred."
George Bush, Mike Nifong, and Information Asymmetries:
I’ve been thinking a bit about information asymmetries. I opposed the Iraq war from the start – it seemed to me that for the invasion to make sense, almost everything had to break our way, so the invasion was akin to making a bet with a 1:1 payoff that you would win only if you rolled snake eyes. The one thing that gave me pause was the confidence George Bush and his advisers had about Saddam Hussein having weapons of mass destruction. If Saddam had WMD, and there was an imminent danger of his using them, then it seemed to me that the cost/benefit ratio of the war was much closer. And Bush had access to information that I could not see. So a huge issue for me (and I’d bet for many others) was the magnitude and significance of the information asymmetry between me and Bush. I ended up concluding that the public case for Saddam’s WMD seemed sufficiently spotty that the information asymmetry was not huge, but of course that was just an educated guess. Only in retrospect does it seem clear that Bush may have thought that he had much more information than the rest of us did, but that information turned out to be unreliable (note to future Presidents: be wary about relying on sources codenamed “Curveball”).
When Mike Nifong stated that “there is no doubt a sexual assault took place” (and made more specific claims, like that the alleged victim “was struggling just to be able to breathe” during the alleged attack), again the information asymmetry loomed large. My assumption (like that of most people I know) was that he must have had mounds of evidence to support his confidence. Like Bush with WMD, Nifong had access to information that I could not see, and that access seemed important. It now seems that the only evidence he had for his statements was the alleged victim’s multiple (and contradictory) statements, and Nifong’s confidence (and the whole case) has become some combination of tragedy and farce.
The question that interests me is whether we can articulate any useful metrics for when we should defer to self-serving statements by those with access to more information, and when we should not. In the two instances above, the doubters were vindicated. There are other examples in this vein. LBJ had access to greater information about the Gulf of Tonkin incident than did the doubters, but the latter were right, as the Pentagon and LBJ misrepresented what happened. Indeed, the Pentagon Papers revealed repeated such instances in the Vietnam War. Meanwhile, General DeWitt emphasized his access to information as justifying the government’s Japanese internment in World War II, but we now know that DeWitt simply fabricated and lied (see Eric Muller and Peter Irons on this).
But there are counter-examples. Many people believed that Julius Rosenberg was innocent, but it is now clear the government really did have the goods on him, and that he was guilty. Same for Alger Hiss. Indeed, the airstrikes that President Clinton ordered at the height of the Lewinsky imbroglio – which were widely criticized as trumped up attempts at diverting attention, with little deference to the information asymmetry favoring the President – look quite different after September 11, 2001.
So I return to my question: are there any useful guideposts for how much (if at all) we should defer to self-serving claims that rely on superior information? Or are we left to judge each instance on an ad hoc basis?
Grisham Goes to Court:
It appears best-selling novelist John Grisham will stand trial for allegedly inflicting emotional distress on a "suspect" in the course of an amateur investigation. Yesterday the Virginia Supreme Court overturned a lower court's dismissal of the case. It seems Grisham should stick to writing about sleuthing, rather than trying to do it himself.
Friday, January 12, 2007
Is it My Bad Luck, or Has Customer Service in the U.S. Really Gone to Hell?
I know one should extrapolate too much from limited experience, but I have consistently been receiving terrible customer service over the last couple of weeks, to wit:
(1) I've already blogged about my experience with Speakeasy.net, which led to several readers emailing me similar stories about that company;
(2) I purchased a ticket on the United Airlines website. I discovered that Orbitz was offering the same ticket for $15 less. I tried to take advantage of United.com's low fare guarantee. I emailed all the pertinent information, with a promised response within one business day. Two business days later, I received an email in the late afternoon demanding more information by fax by midnight. I duly sent that information. That was weeks ago, and I have not heard anything since, despite a followup email, to which I received a boilerplate response. And, it's nearly impossible to get to speak to a live human being, and even more difficult to speak to someone who speaks English in the American vernacular, if one calls United's "customer service" department.
(3) My moving company (which I won't name pending how it ulimately resolves the issue, which is currently "under investigation"), a respectable company affiliated with one of the national giants, promised at least three times that there would be "no charge" for a particular service. On moving day, I was told that there would be a $300 charge. A week later I was told that the charge would actually be $972.
(4) I called Comcast to set up cable installation. They sent a complete moron, who wanted to run a cable from the third floor to the first floor, by way of staircases and hallways. I called Comcast, and they offered to send a new technician two days later. No one showed up. I called Comcast, and was told the technician must be running late. He never showed. I called again, and was told that the previous two folks were wrong, that no one was coming to my house that day, that someone would call me that day to set up an appointment later in the week. Someone did. And then didn't show up for the appointment. I decided we can live without cable.
Is this a real trend, or have I just had bad luck?
UPDATE: I forgot about a fifth example: I learned last week that Alcon has recalled an eyedrop I use, "Systane Free", for safety reasons. Instead of offering a refund, the company is only offering an exchange for other versions of this drop; without boring you with the details, these other versions have different properties, and I don't want them. When I called Alcon's customer service, I was told they hired a third party to handle the recall, so I'd have to take it up with them!
Prosecutorial Misconduct:
Dorothy Rabinowitz had an excellent essay in yesterday's Wall Street Journal, available free on OpinionJournal.com, about the Duke rape case entitled, The Michael Nifong Scandal. Her essay places this incident in the context of the prosecutorial abuses that she did so much to combat in the 1980s and '90s:
For all the public shock and fury over his behavior, there is little that is new or strange about Mr. Nifong. We have seen the likes of this district attorney, uninterested in proofs of innocence, willing to suppress any he found, many times in the busy army of prosecutors claiming to have found evidence of rampant child abuse in nursery schools and other child-care centers around the country in the 1980s and throughout most of the '90s. They built case after headline-making case charging the mass molestation of small children, and managed to convict scores of innocent Americans on the basis of testimony no rational mind could credit. Law officers who regularly violated requirements of due process in their effort to obtain a conviction, they grasped the special advantage that was theirs: that for a prosecutor dealing with molestation, and wearing the mantle of avenger, there was no such thing as excess, no limits to what could be said of the accused. In court, rules could be bent, any charges presented, and nonexistent medical evidence proclaimed as proof positive of the accusation. I believe this disturbing phenomenon is distinct from "normal" prosecutorial overreaching in ordinary cases. This sort of misconduct is fueled by publicity and politics, whereas normal prosecutions take place in almost complete obscurity. On the one hand, fewer people--in particular the press--are looking over the prosecutor's shoulder. On the other hand, the lack of publicity reduces the incentive to dig in and go for broke, which makes it all the more mysterious to me when prosecutors have done so. In large offices, prosecutors must get supervisors to sign off on reducing or dropping charges precisely to prevent them from getting out of trying cases that are not dead-bang winners. But like the psychology of defense, the psychology of prosecution is far more complex than this.
Some commentators on other threads have criticized the lack of blogging on the Duke case here at the Conspiracy. In my case, as a former criminal prosecutor (in the Cook County State's Attorney's Office), I am very interested in the issue of prosecutorial misconduct and incompetence in general, and in this case in particular, and have been following events on Durham-in-Wonderland. But I also know that, aside from the issue of prejudicial statements to the press, accusations of prosecutorial misconduct depend entirely on the state of the evidence available to the prosecutor and that, at this stage in the proceedings, no one besides the lawyers really know what evidence exists. So ordinarily there is nothing to do but wait and see how the evidence unfolds at trial. It is highly unusual for a case to implode in this manner at this stage. Above all, this is a credit to the defense team.
As I have said for many years, our adversarial system depends for its effectiveness on the competence of the lawyers on both sides of the case. Where persons are wrongly convicted (as opposed to being wrongly accused as here) this is usually the result of incompetent defense lawyering, rather than some nefariousness on the part of the prosecutor. Where the criminal justice system is in greatest need of reform is ensuring competent counsel to all accused, regardless of their guilt. In my opinion, and having watched considerable portions of the trial, the OJ Simpson case is a rare example of severe prosecutorial incompetence; to be sure, the defense counsel were competent, but hardly a Dream Team as advertised. Prosecutors with experience in high profile cases, such as those who tried the Gacy case in Chicago when I was an ASA, should have prevailed. It was all-too-easy and a pity to blame the jury in the Simpson case for the failings of the prosecutors. As I said at the time, the Simpson prosecutors were either the best that the LA DA's office had to offer, which would be shocking (and which I do not believe), or they were not, which would be equally shocking (and a poor reflection on Gill Garcetti, the District Attorney who selected them). On the issue of incompetence of the Simpson prosecutors, I recommend Vincent Bugliosi's Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder.
But the scandal of Duke case is not about the incompetence of either line prosecutors or ordinary criminal defense attorneys, but the politically-motivated misconduct of an elected District Attorney. And it is also about how one's life can be ruined, or at minimum forever altered, not to mention bankrupted, by a false accusation from which one is eventually vindicated.
Judge Harry Pregerson, Champion of Federalism:
In a dissent filed today in United States v. Reynard, Judge Pregerson argued that the DNA Analysis Backlog Elimination Act of 2000 (the "DNA Act") is unconstitutional because it exceeds Congress's authority. The DNA Act compels those convicted of qualifying federal crimes to submit to DNA collection as a condition of being released on federal probation or supervised release. In his dissent filed today, Judge Pregerson argued that this law exceeds the Commerce Clause power even after Raich: [B]y passing the DNA Act, Congress is attempting to regulate something that it — and nobody else — has put into the stream of commerce. Reynard’s DNA — while housed in his body — is not a "thing" in interstate commerce until the government, under the DNA Act, compels the DNA's extraction by drawing blood from a parolee and places the DNA in the stream of commerce for analysis. Congress may not bootstrap its authority to regulate purely local activity under the Commerce Clause. If the government is allowed to regulate anything that it puts into the stream of commerce, its powers under the Commerce Clause would be without limit. "To be sure, 'the power to regulate commerce, though broad indeed, has limits.' " Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 58 (2003) (quoting Maryland v. Wirtz, 392 U.S. 183, 196 (1968)). By arguing that Condon authorizes Congress to regulate Reynard’s DNA only after the government has placed it in interstate commerce, the government puts the proverbial cart before the proverbial horse.
Because passage of the DNA Act cannot be justified under any of the three "categories of regulation in which Congress is authorized to engage under its commerce power," Raich, 125 S. Ct. at 2205, I agree with Reynard that passage of the DNA Act exceeds Congress’s power under the Commerce Clause. First Judge Reinhardt, now Judge Pregerson. I wonder if these Judges want to bring back the Constitution-in-Exile? (Hat tip: Decision of the Day)
Lott v. Levitt (cont.):
Concurring Opinions guest blogger Michael Abramowicz provides an update on John Lott's defamation lawsuit against Freakonomics co-author Steven Levitt, complete with commentary. Jim Lindgren has written about this litigation on the VC here. [Note: Those wishing to comment on the litigation can do so at Concurring Opinions.]
UPDATE: Glenn Reynolds' take: "a lawsuit that shouldn't have been brought, over a chain of events that shouldn't have happened, and involving accusations that shouldn't have been made."
Also, Keith Sharfman wonders whether the stakes in the case are as low as Abramowicz suggests.
Defending Guantanamo Detainees:
I too am very troubled by remarks from deputy assistant secretary of defense of detainee affairs Cully Stimson that seem to urge private businesses to pressure law firms to stop defending Guantanamo detainees: I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out. Listen to the radio interview yourself, starting at 3:00 into the file. It seems to me quite clear from the interview that the Secretary isn't merely predicting such an action by the law firms, but also saying that such an action would be good. A few thoughts:
(1) Just to avoid misunderstanding, I am not claiming that it is illegal for businesses to pressure their lawyers to stop taking certain other cases, or to boycott lawyers who do take such cases. Businesses, like other clients, are entitled to choose the lawyers they want. Nor am I claiming that it is unconstitutional for government officials to urge businesses to do this, so long as the urging stops short of threat of governmental retaliation (whether through legal punishment or through withdrawal of government contracts). I think Mr. Stimson's urging is improper, not that it's unconstitutional.
(2) I also do not want to claim that it's categorically improper for clients to avoid lawyers who are embarked on legal campaigns of which the client disapproves. In particular, I do think that clients may rightly turn away from lawyers and law firms whose motivations the client finds to be repugnant. If a lawyer or law firm's genuine goal is to try to help jihadists (or racists or Communists or whoever else) avoid legal liability in all circumstances, simply because they back jihadists/racists/Communists, a client may reasonably conclude that he does not want to have doings with that organization.
I think this tracks our common sensibilities in social life as well. I may be sad that a public defender gets a factually guilty rapist released, but he's doing his job, it's an important job, and he's supposed to his job as well as possible; I won't cut off social or business connections with him. But if I learned that a public defender defends rapists because he thinks rape is good, I would have a very different view.
(3) But it seems extremely unlikely that those lawyers who represent Guantanamo detainees do so because they support jihad against America. Rather, I take it that they are doing this chiefly because they think that their actions may (a) reduce the risk of factual error (continued detention of detainees who aren't really guilty), (b) reduce the risk of legal and constitutional violations (deprivation of what the lawyer thinks are important due process norms), or (c) reduce the possible indirect harm that such erosion of due process norms can cause to others in the future. And they believe that, when a legal process is available — as the Supreme Court has held that it is — the legal system is benefited by having trained, qualified lawyers involved on both sides of the process, so that courts and other tribunals see an adversarial presentation with the best cases made for both sides.
Now one might thing that, despite the lawyers' good intentions, their actions will yield bad results. One might, for instance, think that the Court was wrong in holding that courts should consider detainees' habeas claims, and that getting more lawyers involved in the process will hurt national security. That's fine. But surely this is an area on which reasonable, decent, thoughtful Americans can differ.
Again, let's return to the analogy of political belief and expression, in social and professional life. As I said, I'd have no qualms with people's refusing to invite Communists, Nazis, Klansmen, and the like to dinner, or even refusing to do business with them. (I would act the same myself.) But if someone refuses to do business with someone because he disagrees with his stand on global warming, social security reform, the war in Iraq, affirmative action, and the like, that person is being intolerant. He's undermining social norms that are vital to a working democracy — norms that maintain connections across political aisles, that allow people to disagree without rancor or hatred, that eventually allow compromise, and that help make possible unity in the face of common threats. And, if his goal is to try to change others' speech, he's improperly trying to do this through financial and social threats rather than through persuasion. The lines here are not crisp, and since we're talking about propriety rather than law, they neither can be crisp nor need to be crisp.
Likewise when we shift back from a lawyer's political expression to the lawyer's legal representation. In extreme cases, where the lawyer's goal is really to have the jihadists win, or to have rapists rape with impunity, I too wouldn't do business with the lawyer. But when lawyers defend Guantanamo detainees out of the motives I describe above, it seems to me that they are well within the zone of that which should be tolerated, without social or professional retaliation, even if we think that on balance the lawyers' actions end up being harmful. To do otherwise would likewise undermine important social norms of encouraging lawyers to provide the legal system with services that the legal system sees as necessary for its most effective operation.
(4) So far I've spoken just of what businesses should do; now to the government official's statements. The detainees' lawyers are, in court, the government's adversaries. But the premise of our legal system is that you can be the adversary and not the enemy, and that in fact your representation can help the legal system run by the very same government that you are opposing.
It strikes me as especially wrong for the government to try to drum up financial pressure that would deter lawyers from playing this role. Again, the premise of our legal system is that the courts, and not just litigants, are benefited from quality legal advocacy. If the government frightens away lawyers who are on the other side, it will get an unfair advantage in the judicial process, shortchange the judiciary, and (when it comes to decisions that set precedents) potentially yield legal rules that will give too little protection for the rest of us, and not just the Guantanamo detainees.
(5) Finally, quite aside from the argument that businesses should pressure law firms to stop representing detainees, isn't there something troubling with the motivation that Stimson is urging? He's not even saying that corporate CEOs should pressure firms because the CEOs are patriots, or because they hate terrorists, or because they want to prevent future terrorist attacks. It's because the terrorists hit their bottom line.
Is he really appealing not to the CEOs' patriotism, or anger over mass murder, but to their anger that terrorists cost business money? To look at the flip side, should construction and security contractors who made money (perfectly honorably, I should stress) as a result of the terrorist attacks start giving more business to law firms who are representing detainees, on the theory that "those firms are representing the very terrorists who [benefited] their bottom line back in 2001"? Yes, CEOs should surely look out for the bottom line; that's their job. But this strikes me as a context in which the concerns about past impacts on the bottom line should be the least relevant.
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Disclosure: I am affiliated on a part-part-part-time basis with Mayer, Brown, Rowe & Maw, one of the firms correctly named by Stimson as representing some of the detainees. I am not personally involved in those cases.
Interesting Citizen's Arrest Incident, Involving Former Congressional Candidate:
The Cincinnati Enquirer reports on an interesting incident involving former Democratic congressional candidate Paul Hackett, who was also an Iraq War veteran:
Indian Hill lawyer and former congressional candidate Paul Hackett -- armed with a loaded assault rifle -- chased down three men in a car after it crashed into a fence at his home in the early morning hours of Nov. 19.
The driver was charged with failure to maintain reasonable control, driving under suspension and carrying a concealed weapon -- a pair of brass knuckles found in his pocket -- according to the Indian Hill police.
Indian Hill Rangers consider the matter closed, but a Hamilton County grand jury two weeks ago took testimony from the three men in the car and the ranger who investigated the incident, according to an Indian Hill police report....
Ohio law says guns can be used in self-defense in cases to repel deadly force. Criminal damaging is a misdemeanor and would not be considered a crime of deadly force....
[Indian Hill Ranger Paul White] ... arrived at a driveway in the 8700 block of Keller Road to find the three men lying face down near their small, black car and Hackett's pickup truck. With a flashlight, White saw a strap on Hackett's right shoulder and "what appeared to be an assault rifle hanging along his right side," White's report said....
During the investigation, Hackett told police Nov. 30 that he was carrying an AR-15. He said one round was in the chamber and that he usually has 28 rounds in the magazine. He also told police that he did not point the weapon at the three men, the safety was on and he never put his finger on the trigger.
Hackett said he had followed a trail of fluid left by the car, and the vehicle stopped in a driveway. Hackett told police that he hopped out of his truck and that he was armed.
"He told the boys to 'Get the ---- out of the car and get on the ground.' ... He said he did not touch the vehicle with the rifle and maintained his distance. 'I knew they saw I was armed,' he said. He said he had done this about 200 times in Iraq, but this time there was not a translation problem," the Indian Hill police report said....
I take it that the legal question here, on which I'm not up, is whether it's permissible to threaten to use deadly force -- not necessarily use it, but threaten it -- in order to make a citizen's arrest in a situation such as this. Related Posts (on one page): - No Charges in Citizen's Arrest Incident:
- Interesting Citizen's Arrest Incident, Involving Former Congressional Candidate:
Lake Erie Wind Farm:
There is increasing interest in a potential offshore wind farm in Lake Erie. While there are sea-based wind turbines in Europe, proposals for such projects of the U.S. coast have been blocked, often by the same folks who call for greater investments in alternative energy sources (see, e.g., the ill-fated Cape Wind project off of Massachusetts). As a result, a Lake Erie wind project has the potential both to be the first offland wind project in the U.S., as well as the first fresh water wind project in the world. All offshore wind projects to date have been built in salt water.
In my conversations from local wind energy experts, I've learned that a fresh water wind farm might present unique design challenges. Constructing ocean-based wind turbines is rather easy, in large part because constructing ocean-based platforms is nothing new. Engineers know how to address the problems caused by currents, corrosion, and inclement weather. In fresh water, however, the potential problems are different. As the shallowest of the Great Lakes, Lake Erie's depth is a definite plus from a construciton standpoint. On the other hand, the surface of Lake Erie can freeze. Also, as I understand it, drifting ice on the surface can build up substantial momentum, and present different problems than ocean waves. As reported in the story to which I linked above: Engineering challenges include anchoring towers in a lake that's 50 to 60 feet deep. The towers would stretch 240 feet or more above the water and hold rotating blades that, tip to tip, are longer than a football field. The towers must withstand waves and winter ice.
But encountering the difficulties would generate unique research and development, potentially making the region a hub for off-shore wind power, said Richard Stuebi, the Cleveland Foundation's energy expert. If VC readers know more about this subject, I would be interested to learn their perspectives on the engineering challenges of such a project, and how they might be overcome.
Banner Day at D.C. Circuit:
The U.S. Court of Appeals for the D.C. Circuit handed down six published opinions today, several of which seem notable (though I have not had the chance to read them all yet). Among today's opinions are:
- Doe v. ExxonMobil Corp., a divided opinion on the justiciability of claims brought under the Alien Tort Statute and the Torture Victims Protection Act, in addition to various common law claims, based upon ExxonMobil's alleged complicity with human rights abuses in Indonesia. Judge Sentelle wrote the majority for himself and Judge Edwards; Judge Kavanaugh dissented.
- United States v. Henry, another opinion sorting out the implications of Booker (among other things). The court's opinion is per curiam, but Judges Henderson and Kavanaugh wrote separate concurring opinions.
- NARUC v. FERC, an otherwise unanimous opinion reviewing a Federal Energy Regulatory Commission order splits over the question of whether FERC has the authority to adopt rules that regulate the use of the states' eminent domain power by or on behalf of utilities. Judge Sentelle's partial dissent says the answer is "no." Judge Williams' majority opinion argues FERC is not really regulating the states' use of eminent domain.
- CREW v. FEC, a opinion finding that Citizens for Responsibility and Ethics in Washington lacked standing to challenge the Federal Election Commission's resolution of its complaint alleging that Grover Norquist and Americans for Tax Reform illegally gave the Republican Party an in-kind corporate contribution, in the form of a list of conservative activists.
I've oversimplified these cases in my summaries (in part because I've only skimmed them myself), so I apologize in advance if I've missed important aspects of these cases. I hope to post more on at least some of them, even if only to provide links to fuller discussions and analyses on other blogs.
UPDATE: At Sentencing Law & Policy, Doug Berman comments on United States v. Henry, a "must read" opinion, and explains why the D.C. Circuit and Judge Kavanaugh are so money. "Baby, that was money! Tell me that wasn't money."
Defend Detainees, Suffer Consequences?
As reported in this Washington Post editorial (LvHB), a high-ranking administration official recently suggested that major law firms may have to choose between allowing their attorneys to do pro bono work for Guantanamo detainees and retaining high-profile corporate clients. No joke. In a radio interview, deputy assistant secretary of defense of detainee affairs Cully Stimson noted that a "major news organization" submitted a Freedom of Information Act request to learn the identities and law firms of attorneys representing detainees. He continued: I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out. (Emphasis added.) After this suggestion that such pressure should be encouraged (Query: Is this official administration policy?), the Post reports Stimson intimated some firms could be receiving payment for their work on behalf of detainees from nefarious sources. Asked who was paying the firms, Mr. Stimson hinted of dark doings. "It's not clear, is it?" he said. "Some will maintain that they are doing it out of the goodness of their heart, that they're doing it pro bono, and I suspect they are; others are receiving monies from who knows where, and I'd be curious to have them explain that." (Emphasis added.) Mr. Stimson may well have been shooting from the hip, rather than expressing official policy. Either way, the administration should disavow his statements.
It is wrong to attack law firms because their attorneys do pro bono work on behalf of unsavory defendants. All individuals, even suspected terrorists, are entitled to a capable legal defense when subjected to judicial process, and it is wrong to impugn attorneys on the basis of the clients they represent.
I would think this administration could appreciate this principle. When left-leaning activist groups attacked administration judicial or executive nominees on the grounds some had worked for unsavory clients, the administration correctly responded that it is wrong to attribute a client's position to his or her attorney, and that nominees should be judged upon their professional qualifications, rather than the political appeal or moral caliber of their former client base. As Lee Casey and David Rivkin explained a few years back in Policy Review: Whether based on the belief that lawyers were above, or below, the fray, and if sometimes honored in the breach rather than in the observance, our society has permitted lawyers to ply their trade without ultimately being blamed or punished for the clients they have represented. This “immunity” is, in fact, essential to the operation of a neutral legal system, which assumes that there are two sides to any question, presupposes that all parties ought to receive a fair hearing of their case, and depends upon lawyers to articulate the relevant legal principles so that disinterested judges and juries can fairly resolve the issues presented. Folks seem to understand this at the Justice Department and the White House Counsel's office, but I guess Stimson didn't get the memo.
If all the detainees are as guilty as some claim, the administration should have nothing to fear if all detainees receive a vigorous legal defense. Instead, an administration official is suggesting law firms should be punished if their attorneys help detainees. What purpose could this serve, other than to discourage capable and zealous representation for detainees? Back to the Post: it's offensive — shocking, to use his word — that Mr. Stimson, a lawyer, would argue that law firms are doing anything other than upholding the highest ethical traditions of the bar by taking on the most unpopular of defendants. It's shocking that he would seemingly encourage the firms' corporate clients to pressure them to drop this work. And it's shocking — though perhaps not surprising — that this is the person the administration has chosen to oversee detainee policy at Guantanamo.
UPDATE: Paul Horwitz comments on PrawfsBlawg (also posted at Dorf on Law) One believes that people are entitled to legal counsel or one does not; one believes that lawyers are entitled to provide that counsel without the taint of association or one does not. I would have thought that Mr. Stimson, a lawyer, was fully familiar with Rule 1.2(b) of the ABA Model Rules of Professional Conduct and similar state provisions, and would side with the former views. I see now that I would have been mistaken in thinking so.
Scientists' Critique Shelves Bush Proposal:
In an effort to encourage greater risk prioritization and regulatory cost-effectiveness, the Office of Management and Budget developed new guidelines for risk assessments conducted by government agencies. The aim was to create a set of guidelines to ensure agency risk estimates used to develop regulations would be reliable and consistent. Various activist groups criticized the plan, arguing that it would become an obstacle to the adoption of more protective health, safety, and environmental regulations.
Perhaps in response to public criticism, the OMB submitted its plan to the National Research Council for comment. According to an article in today's W$J, the NRC was not fond of OMB's plan, calling it "too simplistic" and "fundamentally flawed." rather than increase the reliability and consistency of agency risk assessments, the NRC concluded the proposal could "create confusion." As a result (and here is the surprise), the Administration is shelving the plan, at least in its current form. According to the Journal story, neither OMB's acting regulatory chief nor the head of the NRC panel "could recall an earlier instance where a panel of outside scientists had prompted the withdrawal of a White House policy initiative."
UPDATE: Here is the National Research Council release summarizing the report. The report itself can be accessed here.
Brutal Murder of Palestinian Children:
In December, Israeli forces deliberately murdered the three children of an important Palestinian official while the children were on their way to school. Surprisingly, there has been little worldwide outrage over this incident.
Okay, that's not exactly what happened. Here's the edited version: In late December, Israeli Hamas forces deliberately murdered the three children of an important Palestinian [Fatah] official while the children were on their way to school. [Not] Surprisingly, there has been little worldwide outrage over this incident.
As Ze'ev Schiff puts it: "A few months ago, the earth shook when Palestinian civilians were killed by the IDF's misguided artillery fire on Beit Hanun. Tempers ran high in the United Nations, and leftist organizations in Israel demanded that an international commission of inquiry be established and that the GOC Southern Command be dismissed. When Palestinians kill Palestinian children - and not by accident - no criticism is heard."
Thursday, January 11, 2007
Hair Petting Game:
Reader Tina points to this video, which purports to show young women walking down the street touching strangers' hair, video-recording the process throughout. For a likely higher degree of annoyance to others, and a certainly much higher degree of danger to the petters, see two young men doing the same.
(1) Real or fake? I'll assume real for purposes of the question. I'll also assume that it's in New York, as accounts suggest.
(2) Is it a crime, asks the reader? Oddly enough, I don't think so. It's not assault or attempted assault under New York law, because it involves no actual or attempted physical injury. It's not a sex crime, because it doesn't involve the touching of "sexual or other intimate parts" (hair can be intimate in some senses, but not, I think, in the sense contemplated in that phrase). It's not menacing, because it's not likely to create a fear of "physical injury" (or at least not enough such fear, I'd guess). It's not criminal harassment, because it doesn't involve placing some in reasonable fear of physical injury, repeatedly following the person, or action done with the intent to harass, annoy, or alarm.
Some states seem to have laws banning "offensive touching" (see, e.g., 11 Delaware Code § 601(a)(1), barring "[i]ntentionally touch[ing] another person either with a member of his or her body or with any instrument, knowing that the person is thereby likely to cause offense or alarm to such other person") or "offensive physical contact" (see, e.g., Alaska Statute § 11.61.120). Under these laws, we'd have to figure out whether having one's hair touched for fun (as opposed to having one's hair touched by someone who's trying to brush off a fly, or by someone who's simply trying to make room for himself on a crowded subway) is "offensive" enough; I suspect it would be, but I'd have to do more research to figure this out.
There may well be other statutes that my quick research hasn't found -- please do let me know if you can find some. But for now I can't see a New York law that makes this hair petting illegal.
(3) Is this the tort of "battery"? Yes, if it's "offensive bodily contact," which is to say contact "that a reasonable person would find offensive," because it "offends a reasonable sense of personal dignity." (See above.)
(4) Could this also involve the tortious use of another's likeness for commercial purposes? (The Petting Game people seem to have some commercial motivations, though I'm a little hazy on their business model.) I doubt it, for complex reasons, especially under the New York law of right of publicity, which is relatively narrow.
(5) Do I recommend such behavior to thrill-seeking New Yorkers? No, I don't.
Chief Justice Roberts on the Role of the Supreme Court:
My colleague Jeffrey Rosen has a tremendously interesting article in the Atlantic Monthly based on an interview with Chief Justice Roberts. In the interview, Roberts articulates his goals as Chief Justice and how he wants to change the output of the Court and how the Justices work together. It's a must-read. Thanks to Howard for the link.
Employer Recruiting of "People of Color":
The New York Civil Liberties Union is condemning an employer for taking extra efforts to specifically recruit "people of color." Oh, wait, the employer is the military -- that explains it; I guess they should be scrupulously color-blind in their recruiting (though the NYCLU's allies in supporting affirmative action have long pointed to the military's use of race as an affirmative action success story), even though other employers should indeed specifically recruit non-whites.
The story also reports:
Eleni Angelos Healey, a senior at Trinity School in Manhattan and one of the plaintiffs in the suit, said she had been harassed by letters and e-mail from military recruiters. Her repeated efforts to stop them had failed, she said.
“I’m really glad,” Ms. Healey said, “that there’s going to be a much easier way for kids to get their names off these lists as soon as possible.”
Well, I certainly don't support spam, and if someone asks to be off a mailing list -- including the military's mailing list -- their request should be honored. But it doesn't strike me as a terribly serious civil liberties violation.
(The NYCLU has also apparently been complaining about the military's use of its recruiting database, and the story reports that the Defense Department settled the NYCLU's lawsuit by "agree[ing] to use the database only for recruiting, giving up the possibility of sharing it with law enforcement and intelligence agencies." I assume that the basis of the lawsuit was some statutory objection to the use of the database -- there are no constitutional that I know of -- objections to the use of such a database -- but I don't know the statutory scheme governing the question and thus have no opinion on the subject.)
The Brennan Memos:
All three parts of Jim Newton's series on Justice William Brennan's memos are now available on Slate:
Part One: Brennan on Burger (and the death penalty);
Part Two: Brennan on Abortion (and U.S. v. Nixon);
Part Three: Brennan Dishes on His Colleagues (and on Warren's legacy).
Rick Hasen has some comments on part three, and some of the memos' distrubing disclosures, here.
Did Jimmy Carter Endorse Palestinian Terrorism So Long as
Israel Doesn't Accept "The Ultimate Goals of the Roadmap for Peace"? Lawprof Steve Lubet pointed to a letter by Emory Prof. Melvin Konner:
I ... call your attention to a sentence on p. 213 that had not stood out for me the first time I read it: "It is imperative that the general Arab community and all significant Palestinian groups make it clear that they will end the suicide bombings and other acts of terrorism when international laws and the ultimate goals of the Roadmap for Peace are accepted by Israel."
As someone who has lived his life as a professional reader and writer, I cannot find any way to read this sentence that does not condone the murder of Jews until such time as Israel unilaterally follows President Carter's prescription for peace. This sentence, simply put, makes President Carter an apologist for terrorists and places my children, along with all Jews everywhere, in greater danger.
The chapter in which the sentence appears is available here, and I too find it hard to read the sentence other than how Prof. Konner does. In context, it doesn't just seem as an objective political description of the "terrorism will go on until this-and-such happens, so Israel should do this-and-such because of this practical reality." Nor does it seem to be a call on Arabs and Palestinians of the "acts of terrorism should stop now, but since I realize that you won't do it now, at least you might insist that they stop when this important step is accomplished."
Rather, it seems to be a statement of what the Arab and Palestinian community have a moral obligation to do: Make clear not that they will end terrorism, but that they will end terrorism when Israel makes certain concessions. Are Prof. Konner and I mistaken here?
Illeist:
The (I hope temporary) habits of my 1.5-year-old remind me of one of my favorite words: "Illeist," which means "someone who refers to himself in the third person."
OK, it's not "favorite" in that I actually use it in conversation, since its obscurity makes it incapable of serving the basic function of a word (effective communication). But I still like to talk about it.
OLC Alums Support Delahunty:
Since several students and professors at the University of Minnesota expressed opposition to the appointment of Professor Robert Delahunty to teach constitutional law, others have expressed substantial support for the decision (or, at least, opposition to the opposition). In particular, I learned that a prominent group of Delahunty's former supervisors from the Justice Department's Office of Legal Counsel wrote to Minnesota's Deans in defense of Delahunty and the appointment. The text of the letter follows: Dear Deans Charles and Morrison:
We write to defend Professor Robert Delahunty against unjustified attacks by members of your faculty. In a letter dated November 28, nine professors of the University of Minnesota Law School argue that Professor Delahunty is unfit to teach there because his work on a memo concerning the scope of the Geneva conventions shows a lack of legal ethics. We emphatically disagree. The memo at issue in no way seeks to justify torture, but addresses complex legal matters of the kind on which the Office of Legal Counsel traditionally opines. Nothing on its face suggests that it is either incompetent or insincere, and the nine professors offer no persuasive evidence to support their very serious charge of unethical behavior. The only specific issue on which they take issue with the memo is one that has divided the Supreme Court itself.
We are in a good position to evaluate Professor Delahunty’s work as an OLC lawyer. All of us were either Assistant Attorneys General in charge of the Office or Deputy Assistant Attorneys General with supervisory responsibilities. We represent different political parties and three different administrations. None of us has held any executive position in the current administration. We all share the view that Professor Delahunty is an excellent attorney who acted honorably and with distinction in public service. He always gave his sincere and independent advice. He went where his analysis led and he was unafraid to put that analysis in front of his superiors even if he knew that this was not the most politically palatable result. Those of us who teach at law schools would be pleased if Professor Delahunty taught a course at ours: we are sure that students would learn a great deal both from his intellect and his character.
Before turning to the substance of the nine professors’ claims, we should clarify what their letter obscures. The work of which they complain is a single memo, and the memo does not address issues relating to torture. As it makes clear in its second sentence, it considers an important but particular question: whether the laws of armed conflict apply to the conditions of detention and the procedures for trial of al-Quaeda and the Taliban. The memo did not address the applicability of laws and treaties regarding torture to interrogation methods. It thus sensationalizes matters, quite inaccurately, to refer to this draft opinion as a “torture memo.”
Nor can Professor Delahunty be faulted for not addressing questions that were not put to him. OLC memos focus on discrete questions at the request of government clients, and civil servants have no responsibility for determining the questions that should be addressed. Moreover, the memo makes clear that it concerns only a legal question: it expressly declines to consider what policies should be adopted with respect to the detainees. This stance is wholly consistent with OLC’s mission of assessing legality and leaving policy decisions to other departments of the government.
The question the nine professors have raised concerns legal ethics, not the ultimate correctness of the legal views expressed. People often disagree about the content of law, particularly complex and rarely litigated matters like the ones the memo addresses. Some of the signers of this letter largely agree with the conclusions of the memo, others are uncertain, and still others disagree with at least some of them. But we are unanimous in believing that attacks on Professor Delahunty’s legal ethics in writing this memo are baseless.
We are frankly puzzled that a letter that makes such grave charges against an incoming colleague provides so little specific analysis about what reasoning in the forty page memo demonstrates a lack of legal ethics. The nine professors do impugn the memo’s conclusion that common article III of the Geneva Conventions does not apply to Al-Quaeda and Taliban detainees by observing that the Supreme Court has disagreed with that conclusion in its recent Hamdan decision. But a subsequent Supreme Court decision at variance with a legal opinion does not render that opinion unethical. More remarkably still the letter fails to acknowledge that three Justices of the Court accepted the government’s contention that common article III did not apply. Two did so in dissenting from the Supreme Court’s decision in Hamdan. Chief Justice Roberts (as well as Judge Randolph) did so in the appellate court decision which the Supreme Court reversed. This array hardly suggests that the memo’s conclusion about common Article III was without substantial basis in law. One presumes that the nine professors would not object to the ethics of these jurists if Minnesota invited one to teach.
Otherwise the letter of the nine professors offers no substantive analysis of the opinion. They are content to quote from remarks by an official of Amnesty International which also offer no substantive analysis, merely an unsupported suggestion that this memo may have contributed to torture. This kind of conclusory statement by an advocacy group does not provide a proper basis to charge a fellow law professor with a lapse of legal ethics.
Our concerns go beyond the charges in this letter, as reckless as they appear to be to us. Attorneys in OLC are called upon to render legal advice in complex and particularly sensitive matters. Of course, they must behave ethically. But the rest of us and especially those of us who are both lawyers and academics have obligations to those in public service as well, and certainly not to charge them with derelictions of legal ethics without the most substantial analysis and care. Otherwise fine attorneys, particularly those who may hope for subsequent career in academics, may be deterred from giving advice that they recognize may be unpopular in the academy or, for that matter, with the public at large.
We therefore ask that you continue to extend your invitation to Professor Delahunty to teach and welcome him as a colleague. We are confident that the entire Minnesota community will benefit from his fine colleagueship and find him a serious and substantial interlocutor even on matters on which they disagree.
John E. Barry
Partner
Wiley, Rein and Fielding
Douglas R. Cox
Partner
Gibson Dunn
John C. Harrison
David Lurton Massee, Jr., Professor
University of Virginia Law School
Douglas W. Kmiec
Caruso Family Chair in Constitutional Law
Pepperdine University School of Law
John O. McGinnis
Professor of Law
Northwestern University Law School
H. Jefferson Powell
Professor of Law
Duke University Law School
Christopher H. Schroeder
Charles S. Murphy Professor of Law and Public Policy Studies
Duke University Law School
[Note: I've omitted two footnote citations to the Supreme Court and D.C. Circuit's Hamdan decisions from the letter. I am also responsible for the links added to the text.]
I have also learned that there is an online "counter petition" at petitiononline.com, signed by Minnesota law students and alumni, among others. At the time of this posting, it has 143 signatures — a significant number, but less than the number of students and others who have signed petitions against Delahunty's appointment.
What is the consequence of this support for Delahunty? It is hard to tell. This Minnesota Daily story from December suggested that the school's administration was not plannig to retract the offer. It quotes one of Minnesota's Deans stressing the importance of open academic debate, but also says the administrative difficulty of retracting the offer was a rationale given to some objecting students. I have yet to find more recent reporting on the matter.
As noted before, this story has an interesting connection to the VC, as Delahunty was asked to teach the first year section of Constitutional Law traditionally taught by co-Conspirator Dale Carpenter, who will be on leave.
UPDATE: Given the course of the comment thread, I would request that folks who wish to comment on this post please try and focus on the substance of the post and, in particular, the Delahunty controversy and the letter presented above. The signatories are an ideologically diverse lot, each with impressive credentials. Whether or not one likes their reasoning or conclusions, I would think the substance of their letter can be substantively addressed without violating Godwin's Law or engaging in ad hominems.
Wednesday, January 10, 2007
Restaurants and Aspirin (and the Like):
On occasion, I've found myself with a nasty headache in a restaurant; and when I've asked the front desk whether they had any aspirin (or whatever else, but I'll just say aspirin for now) I could have, they've always said no.
Now my sense is that, like most employers, they do have some aspirin for their staff, likely in those little individually wrapped packets. It's also probably in their interest to help out with it: If I've got a bad headache, I'm going to have a less pleasant dinner, and while I probably won't consciously resent them for not helping, I'll be slightly less likely to come back soon (since often one comes back to a restaurant because of memories of recent pleasant dining experiences there). And of course giving me some of the aspirin would cost very little money and time. So why not help out, especially given that they're in a service industry where the presumption (I'd think) is that they should try to help the customer with simple requests that could make him happy?
One possible theory, which I recall having heard a couple of times from restaurants, is that they don't want to give out aspirin for fear of product liability should anything bad happen to me. But I don't really see the real liability risk: There's nothing negligent in their giving me something that I could buy over the counter at a gas station — it's not like they're giving me medical advice. Given that they're not negligent, the only extra risk is strict product liability, but that only arises in the extraordinarily rare circumstance the aspirin was somehow defective; and even in that rare case, it's likely that the payment would come from the manufacturer, not the distributor, with the distributor being on the hook only if the manufacturer is insolvent.
So is it that the restaurant just doesn't want the hassle of helping me? That, contrary to my assumption, they don't have aspirin around for the staff? That they fear liability without much foundation, because there's some industry myth about it afoot (or because they just haven't looked into the legal question, and err on the side of caution)? That, contrary to my sense of tort law, they may in fact be legally on the hook if I react badly to the aspirin? Or something else?
UPDATE: A recurrent thread in many responses is that the restaurants are afraid even of a tiny risk of litigation, and are reasonable to be afraid of it. I wouldn't generally fault them for it; I'm sympathetic with such concerns. Still, if the risk of litigation is really tiny -- some commenters suggest that it's not, but I'm still not persuaded -- wouldn't they at some point conclude that keeping a customer happy is worth the tiny risk of even a huge hassle and cost? (My guess is that much of the cost would be insured, by the way, though I'm not sure.) After all, despite the supposedly "paralyzing" risks of litigation (I quote one of the commentators here), business do lots of things that have some litigation risk.
Some other commenters dealt with this, by suggesting that businesses will run litigation risks in what they see as the core area in which they must, but will shun even tiny risks outside that area. This isn't necessarily so -- for instance, though I hear that many businesses have tamed down their Christmas parties, many do still have them, even though any such activity involves some extra risk (harassment litigation, lawsuits from people hit by employees who drive home drunk, and so on), and even though it's far from obvious that such parties are really necessary to build morale -- but I suspect it's part of the explanation. Still, I think one needs some such explanation and not just a theory that businesses will always avoid any risk of liability, however unlikely.
My Political Compass Score:
I retook the Political Compass questionnaire tonight, and scored fairly libertarian: 7.38 on the economic left/right axis, and -2.92 on the social libertarian/authoritarian axis.
Like others, I have problems with the test. Among other things, some of the questions seem to presume that if one holds that a given practice or activity is immoral or unethical, it is appropriate for the state to intervene. Yet I reject this view. There are activities, both economic and social, that I believe to be wrong, yet should remain perfectly legal. Therefore, I question the relevance of questions about one's moral views in a test that purports to measure one's political views.
Related Posts (on one page): - My Political Compass Score:
- Another political compass test:
Kiesling on Electricity Metering, Pricing and Competition:
At The Knowledge Problem, economist Lynne Kiesling discusses the NYT article on variable-rate electricity pricing I highlighted Monday. As she sees it, there is a problem of asymmetric information.
In the case of electricity, retail customers do not see price changes until after those changes have taken effect, because under existing regulation they pay averaged rates and only receive information about the prices they face at the end of the month when they receive their bill. However, underlying costs of serving those customers can change hourly, so with customers paying averaged prices there is a mismatch between the prices they pay and the costs of serving them.
We could improve efficiency (and thus enable conservation and lower costs) if we had pricing that allowed for a better match of the price the customer pays with the cost, but unless the customer has some way of gaining information about prices in advance, but if we don't do that, then we have the aforementioned asymmetric information problem.
As Kiesling explains, the solution is not purely technological. Having gizmos that provide information about price changes is important, but so is rate reform.
The technology can't create all of these benefits on its own: rate redesign to allow dynamic pricing is imperative. What good is having technology to enable responsive demand if the meter just gets the same old, same old averaged price signal? Not much. Digital technology and dynamic pricing are symbiotic. Furthermore, the most significant benefits of digital technology and dynamic pricing are largely unseen by us in advance, which is why it's so bloody hard to get them enacted in regulation!
The most substantial benefits of the retail competition that technology + pricing enable come from product differentiation and innovation in the products and services available to customers. Think about telecom: we got some benefit from the reduction in prices for long-distance service, but the real value proposition has been in the proliferation of new products and services that have transformed our lives. There are entrepreneurs out there thinking about ways to do that in electric power retail service, and the potential exists, if we will but let it happen.
In other words, to truly take advantage of technological innovation and price information, there must be regulatory reforms that allow for retail electricity competition. The cost savings from time shifting would be only a portion of the resulting economic benefits. Related Posts (on one page): - Kiesling on Electricity Metering, Pricing and Competition:
- Variable Rate Electricity Pricing:
Academic Freedom at AALS:
I did not attend the AALS conference this year, but from these accounts (Inside Higher Ed and Dorf on Law), it sounds like there was an interesting panel on academic freedom. Among other things, the panel addressed the controversy at the University of Minnesota over the decision to have University of St. Thomas law professor teach constitutional law this spring.
What's the Essence of a Carnival?
Illinois Compiled Statutes § 11-54.1-1 tells us:
"Carnival" means and includes an aggregation of attractions, whether shows, acts, games, vending devices or amusement devices, whether conducted under one or more managements or independently, which are temporarily set up or conducted in a public place or upon any private premises accessible to the public, with or without admission fee, and which, from the nature of the aggregation, attracts attendance and causes promiscuous intermingling of persons in the spirit of merrymaking and revelry.
Promiscuous intermingling of persons in the spirit of merrymaking and revelry -- I couldn't have said it better myself.
Audio of Panel on Presidential Power:
The Federalist Society has posted the audio of the recent faculty symposium panel, " May the President disregard a congressional statute for national security reasons?", featuring John Yoo, Doug Kmiec, Louis Fisher, and co-blogger Ilya Somin. Here's a rough breakdown of the appearances (with breaks for Q&A by moderator Doug Kmiec): Doug Kmiec (0:00 to 11:00).
Louis Fisher (11:00 to 24:30)
John Yoo (30:00 to 43:00)
Ilya Somin (47:00 to 58:00)
Q&A (first with questions by Kmiec, later by the audience) (58:00 to 1:29:00) Near the end of the Q&A, I asked a question to John Yoo in response to his presentation. You can hear my question, and his answer, starting at the 1:24:30 mark.
Question to Current or Recent Law Review Articles Editors:
Someone asked me -- when one circulates an article to law reviews, is it helpful to include a short abstract at the start, or should you let the Introduction do the talking (perhaps with a few things said in the cover letter that aren't as easy to say in the Introduction, such as how hot and novel the proposal is)?
I'd love to hear your views, if you now are or have recently been a law review articles editor. Thanks!
Another political compass test:
These tests are pretty arbitrary as to your precise position on the ideological spectrum. Do one's views on gay marriage get weighted just the same in the outcome as whether one thinks parents should use spanking as a form of discipline? Weighted more? Less? How much so? But the tests do tend to capture roughly where people stand. Besides, they're fun.
I came out a +2.00 on the economic issues scale (that's slightly right of center) and -3.38 on the social issues scale (that's libertarian, a word I would not use to describe myself, but only slightly so). Pretty boring: I'm basically a moderate according to this test, certainly less libertarian than either Andrew Sullivan or, I'm guessing, most of my fellow VC bloggers. Related Posts (on one page): - My Political Compass Score:
- Another political compass test:
Tuesday, January 9, 2007
Supreme Court Calls for A Response in Brendlin:
Readers who were interested in my earlier blog post on Brendlin v. California might want to know that the Court has in fact called for a response. According to the docket page, the Court requested the response yesterday; California's Brief in Opposition is due on February 7.
Science Fiction and Conservatism:
Like Eugene Volokh and Glenn Reynolds, I too am a big fan of John Scalzi's recent Science fiction books Old Man's War and Ghost Brigades. But the New York Times was wrong to describe the Volokh Conspiracy and Glenn as "conservative" in its review of Scalzi's works.
More fundamentally, it is not clear to me that there really is much affinity between science fiction and conservatism. Most of the prominent "conservative" science fiction writers (e.g. - Robert A. Heinlein, whose work the reviewer compares with Scalzi's) are in fact libertarian in their ideology. Conservatism, or at least those variants of it that emphasize the value of tradition, is likely to be in tension with the emphasis on progress in both technology and social organization that is a major theme of science fiction. Religious conservatism is likely to be in similar tension with the rationalism that is a major part of the sci fi ethos.
Conservative traditionalism probably has greater affinity with fantasy literature than with science fiction. Fantasy often relies on nostalgia for the values of the past and tends to be suspicious of social change. And it is no accident that some of the greatest fantasy writers (most notably J.R.R. Tolkien) have also been conservatives.
This is not to say that there is no conservative science fiction or that conservatives shouldn't like sci fi. Some science fiction can be conservative by cutting against some of the dominant themes of the genre; similarly, there are liberal and even a few libertarian fantasy novels. And there are good reasons for enjoying literary works that you don't agree with ideologically. Personally, I like fantasy even more than science fiction, even though the latter is a much better fit for my libertarian ideology.
Finally, like Eugene, I'm happy to receive any review copies of science fiction books that publishers care to send me:). Who better to review new Sci fi and fantasy books than a blogger who has devoted posts to such topics as the portrayal of federalism in science fiction and fantasy, and The Law of Star Trek? Related Posts (on one page): - Science Fiction and Conservatism:
- Science Fiction:
Science Fiction:
The New York Times book review section (Dec. 24, 2006) ran a piece about John Scalzi -- whose Old Man's War and The Ghost Brigades I much enjoyed -- and in the process noted that "the book owes its ... success in part to recommendations from conservative political blogs like Instapundit and The Volokh Conspiracy."
I'm pleased to hear that some think that my recommendations helped the book (though I'm quite sure that Instapundit's influence was far greater than mine). I'm also particularly pleased by the possibility that perhaps some fantasy and SF publishers, editors, authors, and publicists might read the review -- or perhaps some odd post that happens to link to the review -- and decide that it would be a wonderful idea to send me review copies of the fantasy and SF books that they are promoting ....
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