Saturday, March 3, 2007I'm speaking Monday
in Adler country, at the Case Western Reserve University School of Law on the subject of traditionalist conservatism and gay marriage. The speech is being sponsored by the student chapters of the Federalist Society, the Conservative Law Students Association, and the Lambda Law Students Association. It will begin at noon and food will be served. Greed is Good For Partners, Just Not For Associates:
Writing in the DC Bar's Washington Lawyer magazine, Arnold & Partner former managing partner (and current DC Bar President) James J. Sandman argues that it hurts partners, judges, the American people, and associates themselves to pay associates too much money. According to Sandman, high associate salaries are bad because they teach young lawyers that money is everything -- and even worse, they cut into the partnership's profits. (Hat tip: Lat)
Ann Coulter and the Right:
There is little say about Ann Coulter, but to second Orin Kerr's post below. Coulter has said a great many idiotic, bigoted, and offensive things over the years, and calling John Edwards a "faggot" is actually tame by her standards. For a very partial sampling of Coulter's wit and wisdom, see this 2006 article by libertarian columnist Cathy Young. As another example, I would note her book claiming that not just some, but nearly all liberal Democrats were traitors and Soviet collaborators during the Cold War. However, as Orin suggests, the real problem is not the things Coulter says, but the fact that a large swathe of the mainstream right views her as a heroine - or at least as an acceptable part of the conservative movement - despite her having said them. In some cases, I suspect they actually like her because she said them. When Coulter was fired by National Review back in 2001, I hoped that she would be rejected by most other mainstream conservatives, and swiftly fade into oblivion. Unfortunately, I was overly optimistic. While some conservatives - and perhaps more libertarians - have indeed rejected her, too many have not. The very fact that she was invited to address the Conservative Political Action Conference, a major movement conservative event, is a sign of her continued good standing for much of the right. The fact that the previous speaker - prominent Republican presidential candidate Mitt Romney - praised her, is another. But perhaps it's not too late for those conservatives who continue to accept her to make up for lost time. It would be easy to point to various prominent leftists who have made equally reprehensible statements (though only a select few have made as many as Coulter), and I could probably write a lengthy post cataloging their assorted rhetorical sins. Ultimately, however, the stench of the other side's dirty laundry is no excuse for failing to wash your own. UPDATE: This post by the Malcontent contains numerous links to condemnations of Coulter's CPAC speech by conservative and libertarian bloggers, and Republican presidential candidates Rudy Giuliani, John McCain, and Mitt Romney. Romney, ironically, was the speaker who immediately preceded Coulter. In his speech, he had praised her, saying: "I am happy to hear that after you hear from me, you will hear from Ann Coulter. That is a good thing." Perhaps Coulter has finally worn out her welcome on the mainstream right. If so, that would be a real "good thing." However, as I mentioned in the main post, similar hopes have been dashed in the past. So we'll just have to wait and see. Related Posts (on one page):
Appalling:
If Ann Coulter were a liberal, conservatives would denounce her as a perfect symbol of how modern liberalism has lost all sense of decency. But Coulter's a conservative, so how does a conservative audience respond when Coulter makes a "faggot" joke about a Democratic Presidential candidate? With laughter and applause. Yes, laughter and applause. Just pathetic. (Oh, and I realize Coulter and her suporters deflect criticism with every 7th grade bully's favorite gambit: "It's all just a joke!" "Where's your sense of humor?" etc. I trust VC readers are far enough past junior high not to buy that one.)
Related Posts (on one page):
Friday, March 2, 2007Ask Etymology Ethelwulf:
A gentle reader asks, Where the heck does the word "umbrella" come from? This story takes us on a fascinating etymological odyssey, which only became clear to me when, while reading the Alliterative Morte Arthure today in my medieval reading group at Georgetown Law, I came across the verbs umbeclap and umbelap. (You can find them by searching in Part 2 of the e-text here.) After Sir Berille is killed, Sir Cador "umbeclappes" the corpse (line 1779), meaning "embraces." And, later, in a battle, the King of Libya "umbelappes" some of King Arthur's army (line 1819), meaning "surrounds." The etymology isn't that difficult: "Umbeclap" begins with the prefix "umbe-" — this is a combination of the prefix "um-" meaning "around" (think of the modern German preposition "um"), and the general-purpose verbal prefix "be-", which is used for a variety of purposes, like intensifying the verb, making it figurative, making an intransitive verb transitive, etc. (consider "become," "befall," "beclown"). And the second component, "clap," is the same as the verb we use to clap our hands, in its less common meaning of "to pat fondly." As for "umbelap," it's the same "umbe-" prefix with "lap," meaning to fold or envelop — this was a term originally used with clothing, so that parts of the garment can "overlap," but acquired a metaphorical sense of surrounding (hence the concept of running "laps" around a racecourse). (All this is in the OED.) So clearly "umbrella" comes from the Middle English combination of "umb-" with "rella." To get at the derivation of "rella," we have to look to Latin. In ancient Rome, when you went out in the rain, you would "repluviare" yourself. This is derived from "pluvia" (meaning "rain") and the prefix "re-" (denoting reversal or opposition, like "revocation" or "rebellion" — or "reversal"!). Examples of repluviatio included wearing a hood, or (for the upper classes) having slaves stretch fabric over your head on sticks. (And hence the debates among Catullus scholars over what Catullus actually meant when he wrote "Repluvio te, Lesbia mea" — is he protecting her from rain, or is he using her as his symbolic umbrella?) When Roman armies invaded Spain in 218 BC — and as Romans colonized the new province — they brought their repluviae with them. Virgil memorably described precipitation in the Iberian lowlands in his collection of love odes De mea pulchra domina: "Pluvia in Hispania praecipue in plano manet." Moreover, when it wasn't raining, the sun shone down pretty hard, so the repluviae doubled as useful parasols. The Iberians adopted and adapted the repluviae, and in the process the name became Hispanified. As we know, "pl-" words tend to become "ll-" words in Spanish, so "pluvia" becomes "lluvia," "planctus" (the past participle of "plangere," meaning "to lament") becomes "llanto," "planus" (meaning "a plain") becomes "llano," and so on. (You can see the same thing happening with "cl-" in the movement from "clamare" to "llamar.") So, in the outer provinces, repluviare became relluviar. Of course, not everyone could afford slaves to stretch the fabric over their heads, so in the later Empire, it became more common to actually carry a stick oneself, which would hold the outstretched fabric in place. The main innovation in repluviation technology happened in the fourth century, when a hermit, possibly in the Tyrolean Alps, figured out that you could protect yourself from the elements better if the repluviae (or, as they were now called, relluvias or relluas) stretched their fabric out around your head, not just in a flat surface over your head. With slight modifications having to do with the stability of the curved spokes, this is the same technology we use today. This innovation quickly caught on. South of the Alps, the technology was called circumrepluviatio, though this bit of technojargon, to put it mildly, didn't pass the test of time. North of the Alps, where weather conditions were quite a bit harsher, the Germanic tribesmen had already been enthusiastic users of "Relluen," and by addition of the transitive prefix "be-", we get the verb "sich berelluen," roughly meaning "to repluviate oneself." As they adopted the "around-the-head" technology, "sich berelluen," through the addition of the "around" suffix "um-", became "sich umberelluen." Archaeologists still don't know whether the "umberelluen" came over to England in the fifth century, at the time of the Anglo-Saxon invasions, or with the Normans at the time of the Conquest in 1066. (Bede did report that Cædmon wrote a popular hymn called "Dryghten umbrælleþ me," but some commentators think this was scribal error.) But one thing's for sure — better umbrellas than circumrepluviators! UPDATE: Thanks to a correspondent who reminds me that the "umbe-" prefix is alive and well in other modern English words. To fill someone all around with rage was, in Middle English, to "umberage" him (cf. Chaucer's "This churl me umberageth" from The Haberdasher's Tale), and hence the expression "to take umbrage" at something. However, attempts to link "umbrage" or "umbrella" with the Italian region of Umbria are just pop etymology. And don't even get me started on the "umbra" old wives' tale! Related Posts (on one page):
Interview With Amnon Rubinstein:
Ha'aretz carries a very interesting interview with Amnon Rubinstein, who is the very model of a liberal (in the broad sense) Zionist, and whose worldview, I discovered years ago, is rather close to mine in many ways. The interview might go over the heads of readers with little background in Israeli politics and society, but I recommend trying it anyway. Among other things, Rubinstein criticizes the Israeli Supreme Court for getting involved in security issues, discusses his sleepless nights over the threat from Iran, and accuses the far left of hijacking Israeli universities. Brewing Academic Controversy:
This poster, and the event it describes, appears to be causing a ruckus. The poster advertises the 2007 Veroni Memorial Lecture in Philosophy and the Humanities, to be delivered by Peter French, Lincoln Chair in Ethics, and Director, Lincoln Center for Applied Ethics at Arizona State University. The talk's title is On Being Morally Challenged by Collective Memories, and the paragraph-long description reads: During the ethnic cleansing in Kosovo, Serbian men described themselves as compelled to rape and murder Kosovar women and children. This felt necessity was provoked and sustained by collective memories nurtured in Serbs for seven centuries. The basic question I hope to answer is whether group members caught in the throes of collective memories should be held responsible for their actions when they "can do no other."One person e-mailed me asking how this may create a legally actionable "hostile work environment" for people of Serbian extraction; a serbianna.com "activism" Web page reasons that "Peter French starts from a premise that Serbs are rapists and killers because, according to French, Serbian morality is handicapped by collective memory that was nurtured in Serbs. In other words, French believes that Serbs are morally deviant people because of a false collective memory of their past in Kosovo and as a result of their own delusion have collectively accepted morality of a rapist and a killer." As I read the poster, French is not arguing that all Serbian men feel compelled to rape and murder, or even that most do. Rather, he is discussing a particular set of Serbian men who did rape and murder, and who supposedly gave "collective memories nurtured in Serbs for seven centuries" as an explanation for that argument. This is reinforced by the fact that the next sentence is hardly an anti-Serb rant, but a question about whether group members should be held responsible for their actions, which is obviously a question about those group members who actually acted. This is much like, if we wrote, "During the L.A. riots, Korean shopkeepers armed themselves to defend their stores against rioters; this felt necessity was provoked and sustained by their sense of being embattled and victimized by crime," we likely wouldn't be talking about all Korean shopkeepers or even most, but about those Korean shopkeepers who did arm themselves. I think arming oneself to defend oneself and one store during a riot is generally more proper, and rape and murder of course is not, but my point here is that the term "Serbian men" or "Korean shopkeepers" may in some situations refer to those particular Serbian men or Korean shopkeepers that the rest of the paragraph describes. Perhaps given the bad acts being described, the poster author should have put things more carefully, to avoid the risk of misunderstanding. But while philosophers have a reputation for being very precise writers, a reputation especially easy to nurture when you have a whole paper — nursed over months or years — in which to be precise, quickly boiling things down to three sentences (something that may well have been done not by Prof. French but by someone else) may indeed sometimes produce misunderstandings. I anticipate that the speech will indeed go as I conjecture, and I hope the controversy will then fizzle. Still, it does seem like a brewing academic controversy, so I thought I'd note it. And of course I naturally think that even if Peter French is a raving anti-Serb bigot, his speech should be constitutionally protected, including against a "hostile work environment" lawsuit. (If the speech were raving anti-Serb bigotry, the university would have the power not to invite him to give a special university-promoted lecture on the subject, and should exercise that power; but that's a separate matter.) Conservative Legal Luminary Ted Olson Joins Giuliani Campaign:
Apparently this happened yesterday: "The Rudy Giuliani Presidential Exploratory Committee today announced that former Solicitor General Theodore Olson will chair the Mayor’s Justice Advisory Committee." Olson, recall, was Solicitor General from 2001 to 2004, was Assistant Attorney General for the Office of Legal Counsel from 1981 to 1984, and is generally one of the biggest figures in conservative legal circles. My sense is also that he is seen as a very solid conservative, including by very solid conservatives (though I realize that some very solid conservative friends of mine might ask me how a squish like me could possibly know who's a very solid conservative). This might bear on how other conservatives see Giuliani, whose conservatism is in some dispute. Why Might It Make Sense To Bar Stepparent-Adult-Stepchild Incest?
The post below, and the discussion in the comments, leads me to ask: Precisely why might it make sense to outlaw sex between stepparents and adult stepchildren? I don't want to ask whether such a ban should be constitutional, or whether criminal penalties are ultimately a good idea. (One might conclude, for instance, that outlawing such sex may make sense, but that on balance it makes more sense not to have the legal system try to investigate and criminally punish such things.) In the course of describing the rational basis for the law, the court gives what might be an answer to my question:
But this strikes me as pretty abstract -- how exactly is the "family unit" threatened, and what exactly does "the integrity of the family" mean? Even if you're confident that there's some harm here, it helps to know concretely what the harm is, since that will help us understand what boundaries the incest rule should have. For instance, is the threat simply the threat of dissolution of the stepfather's and mother's marriage? If so, should the law apply when the mother is dead (in which case I take it the stepfather would still be the stepfather) -- and why should the law apply even when the mother is alive, given that other forms of adultery are no longer criminally punished? Is it the threat of damage to the stepfather's/stepdaughter's familial relationship, in the event that the stepfather/stepdaughter break up their romantic relationship? If so, why shouldn't the law apply even if the father divorces the mother? (It may be that it literally doesn't apply, given its text, depending on how you read "stepparent," but maybe that just means it should be amended.) Is it the threat of damage to the mother/daughter relationship? If so, then again why shouldn't the law apply even if the father divorces the mother to sleep with the daughter? Here's my very tentative thinking on the matter. First, I don't think that the "abuse of authority" argument raised by some commenters is terribly powerful here, if the argument presupposes that the stepfather is using his authority or even his father figure status coercively. Parents, including stepparents who have raised the child for many years, have notoriously little ability to control their adult children; at most, they'll know which psychological buttons to push, but that doesn't seem to help that much. Perhaps in unusual cases stepparents would have some sort of psychological power over their adult children, and maybe cases of stepparent-stepchild incest disproportionately involve those unusual cases. But I'm not sure why we should assume this, and why we should think such psychological power is that much greater than in many other situations where the relationship isn't criminalized. (Even boss-subordinate relationships, for instance, are almost never criminal, and aren't even by themselves cause for civil liability, though they may carry the risk of civil liability if the jury finds some threat of employment retaliation underlying the relationship.) Second, I don't think that the concern can just be that the stepfather is breaking up his marriage with the mother (that's no different from normal adultery, which, while bad, is generally not treated as a crime) or even jeopardizing the mother's relationship with the daughter (though I might be mistaken on that point, since stepparent-stepchild incest is unusually likely to jeopardize the parent-child relationship). Third, it seems to me that the problem with a stepparent-stepchild sexual relationship is not that it jeopardizes the relationship between this stepparent and this stepchild. That's a risk that this stepparent and stepchild can be expected to assess for themselves. Rather, it seems to me that the most sensible argument for banning stepparent-stepchild sexual relationships -- and perhaps other familiar sexual relationships -- is to diminish (as much as possible) the risk that normalization of sexual attraction in stepparent/adult-stepchild relationships will color others' stepparent-stepchild relationships, including ones that involve minor stepchildren. When a stepfather looks fondly at his stepdaughter, we want her thinking "he loves me [as a daughter] and thinks I'm beautiful," rather than "he lusts after me." When a mother looks at her husband's looking fondly at his stepdaughter, we want her thinking "he loves her [as a daughter], which is what I want," rather than "he lusts after her." When the stepfather is thinking about his stepdaughter, we want him to banish lustful thoughts as much as possible, rather than thinking about how he might arrange things so that he can sleep with her -- even if he waits until she's 18. And this is an especially compelling problem for stepfather/stepchild relationships because, as best I can tell, there really is nothing biologically unnatural about them; it's naturally for adult males to be sexually attracted to young postpubescent females with whom they're not genetically related. (Perhaps some innate psychological taboos may undermine that when the adult male has raised the girl from early childhood, but many stepparent/stepchild relationships start when the stepchild is no longer a very young child.) There is thus special social need to desexualize these relationships as much as possible. Of course, we don't want incest to be so unthinkable that it becomes unreportable if it happens nonconsensually, but we do want it to be thought of as little as possible unless there's really solid evidence of its being imminent. If I'm right, then the behavior control here is a means of affecting other people's understanding and expectation of how people behave and think (as well as how they should behave). I should say this is not necessarily a pretty story: Rather than relying on not-very-far-from-libertarian concerns about coercion (even of adults) or violation of promises (such as the marriage vow), this argument for not allowing stepparent/adult-stepchild incest is a form of thought control. Yet it seems to me to respond to a more serious problem than the other arguments, because it suggests that control of this incest is needed not just to protect a few adults from emotionally damaging decisions, but to protect millions of adults and children from the harm that may stem when their stepparent-stepchild relationships become perceived as potentially sexual even when they themselves firmly resolve not to allow the relationships to actually become sexual. Moreover, if this story is right, then this suggests that the incest ban should apply even if the stepfather and stepmother divorce, and even if the stepfather is a widower. Any stepparent/stepchild sexual relationships risk normalizing such relationships and thus potentially sexualizing people's attitudes towards such relationships more broadly. And it also suggests that adult stepsibling sexual relationships may likewise be harmful in a way similar to what I describe (though again I should note that this doesn't necessarily mean they should be criminalized). I may well be wrong on all this. This isn't my core area of expertise, I haven't thought about it a great deal, and thankfully I don't even have personal experience with it (lacking either stepparents or stepchildren). But I thought I'd mention this, and see what others have to say. Related Posts (on one page):
Careful, the Network is Watching:
The extraordinary story of pianist Joyce Hatto's fake recordings (best recounted in this article from Gramophone, but also given heavy coverage in the NY Times and elsewhere) has an interesting angle that hasn't gotten much play. The whole story (of how Hatto's recordings were actually not hers at all, but had been recorded by other artists and re-mastered and re-released under Hatto's name by her husband) was uncovered, in a sense, by the network. The whole thing unraveled when someone in England put Hatto's recording of Liszt's "Transcendental Etudes" into his computer and tried to rip it to iTunes, and itunes retrieved the information from the CDDB database that it was actually a performance by the Hungarian pianist Laszlo Simon. I had my own little brush with how smart the network can sometimes be a few years ago. I was preparing to teach one of my classes (Copyright law) in which I was going to be talking a little bit about US copyright history, and I realized I didn't have a copy of the first US Copyright Act. So I googled it, figuring I'd find it somewhere and print it out — "Copyright Act of 1791." Lo and behold, the first two references Google pulled up were citations to papers that I had written. Wow! I got over the flush of excitement, because I also noticed that there were only a dozen or so citations in total. That's odd, I thought — it's not Britney Spears' haircut, maybe, but surely lots of people have written about copyright history, and about the first copyright statute, and all of that. A little poking around and I had the answer — I had been one of the few people to write about the Copyright Act of 1791 because there was no Copyright Act of 1791 — the first statute had been enacted in 1790. Googling "Copyright Act of 1790" pulls up the predicted zillions of hits. "Boy, was my face red," as we used to say back in Brooklyn. Exposed, by Google, as having screwed up the dates of the first US copyright statute. [I fixed the paper, though copies with my error intact are probably still floating around there somewhere]. And then this afternoon I got an email from a student, who's working on a paper about personal jurisdiction and patent law, and he tells me that a paper of mine shows up as citation #1 when you google "personal jurisdiction over the plaintiff" — which makes me oddly nervous that I've done something wrong again. "The City's Police Chief and Police Dog Have Degrees from the Same Online School":
So reports a defense lawyer, according to this AP story: The city's police chief and police dog have degrees from the same online school, according to a defense lawyer challenging the chief's authority.Thanks to Michael Barclay for the pointer. Richard Epstein on Philip-Morris and Weyerhaeuser Cases:
The Federalist Society has just started a podcast, SCOTUSCast, which will feature discussion of recent Supreme Court decisions by law professors. The one and only Richard Epstein hosts the first podcast, which is on the Court's decisions last week in Philip-Morris and Weyerhaeuser. You can hear the podcast here; it's about 10 minutes long, with a 2 minute introduction by Hayley Reynolds.
WSJ Editorial Page Praises Senator Boxer:
Today the Wall Street Journal editorial page praises California Senator Barbara Boxer (link for $ubscribers) for proposing that the federal government set an example in promoting energy efficiency. Stop the presses: Senator Barbara Boxer of California has a good idea. Ms. Boxer, who heads the Senate Environment and Public Works Committee, suggested last week that a first step in reducing greenhouse gases would be to require that federal buildings use more efficient light bulbs, and ask federal bureaucrats to turn off their computers at night.Of course, the WSJ also can't resist going Senator Boxer one better, proposing that the federal government reduce its energy use even further by shuttering unnecessary agencies. For myself, I've long advocated a federal environmental policy of "First, do no harm." Many federal programs cause, contribute to, or subsidize various environmental problems, and this is tremendously wasteful. It makes no sense fo the federal government to spend taxpayer dollars to subsidize problems that it will then regulate citizens to ameliorate after the fact. Where possible, it is better not to create or exacerbate the problem in the first place. The Limits of Lawrence -- Consensual Adult Incest:
After the Supreme Court declared Texas' anti-sodomy law unconstitutional in Lawrence v. Texas, there was substantial speculation about the implications of the decision for other laws targeting consensual sexual activity among adults. If state prohibition on consensual homosexual activity was unconstitutional, some reasoned, then it might be difficult to maintain state prohibitions on incest, at least among consenting adults. Not so, ruled the Ohio Supreme Court earlier this week. In State v. Lowe, the Ohio Supreme Court considered the constitutionality of the state's prohibition on incest as applied to consensual sexual relations between a step-father and his adult step-daughter. After first concluding that the statute, by its terms, applied to adults as well as children, a six-justice majority rejected the defendant's constitutional challenge, concluding that the statutory prohibition passed muster under the rational basis test because the state has a legitimate interest in prohibiting sexual relations between relatives, even those related by law rather than blood. Lowe cites Lawrence v. Texas to argue that he has a constitutionally protected liberty interest to engage in private, consensual, adult sexual conduct with his stepdaughter when that activity does not involve minors or persons who may be easily injured or coerced. In Lawrence, a Texas statute criminalizing homosexual conduct was held to be unconstitutional as applied to adult males who had engaged in private and consensual acts of sodomy. Lowe contends that Lawrence named a new fundamental right to engage in consensual sex in the privacy of one’s home.Justice Pfeifer was the lone dissenter. He argued that the true purpose of the statute was to protect children, not prohibit consensual sexual activity between adults who lack any blood relationship. He also speculated that the only interest this application actually serves is providing the state with a "shortcut to conviction," because the statute provides "a strict-liability, slam-dunk sex offense that does not allow the defendant to present any evidence regarding the consent of the victim." "This sort of use of the statute demeans its true purpose," Pfeifer wrote. Key to the majority's ruling was its conclusion that Lawrence failed to announce a fundamental right or apply heightened scrutiny, making it easier to sustain other state laws governing consensual sexual activity. This interpretation makes Lawrence a less significant decision as it limits the "threat" Lawrence poses to other state efforts to regulate morality and makes Lawrence a much less effective weapon against the criminalization of victimless crimes. Related Posts (on one page):
United States v. Kelley and Probable Cause for Search Warrants:
Yesterday the Ninth Circuit published a Fourth Amendment decision that included a rather strongly worded dissent by Judge Sidney Thomas. In his dissent, Judge Thomas accused the majority (Judge Rymer and Ret'd Justice O'Connor) of "eroding" the Fourth Amendment by "lowering" the probable cause standard to fight the "scourge" of child pornography:
Child pornography is a scourge on our nation. But every hour, millions of unsolicited and deceptively disguised emails are sent to innocent computer users. Lowering our standards of probable cause to permit government intrusion into private residences based solely on proof of mere transmittal of unsolicited email constitutes an unwarranted erosion of the Fourth Amendment.So you're wondering, was the Fourth Amendment really eroded by the majority's decision? The answer is "no," although for a different reason than the majority offers. The reason Judge Thomas is wrong is that everyone in the case was applying the wrong legal standard, and the standard they applied was far more pro-defendant than it should have been. Had the judges applied the correct Fourth Amendment standard the case would have been a pretty obvious win for the government. The case is United States v. Kelley, and involves charges for knowingly receiving images of child pornography. The government obtained a search warrant for the contents of Kelley's AOL e-mail account after an investigation in Germany revealed that Kelley's account was on the recipient list of a number of e-mails containing child pornography. The question in the case was whether the affidavit in support of the warrant for Kelley's account made the case for probable cause under the Fourth Amendment. The critical part of the case comes at the beginning of the analysis section, in the middle of page 7: Kelley and the government agree that unwitting receipt of e-mail containing contraband will not support probable cause. See 18 U.S.C. § 2252A(a)(2) (criminalizing the knowing receipt of child pornography); United States v. Romm, 455 F.3d 990, 998 (9th Cir. 2006) (holding that a person receives child pornography if he seeks it out). The dispute centers on whether the affidavit is sufficient even though it lacks direct evidence that Kelley actually solicited the offending attachments.In other words, the parties agreed that the warrant was valid only if the affidavit showed probable cause that Kelley knowingly received the images, not just that the images were there in the account. As a result, both the majority and dissenting opinions focus on whether the affidavit offered sufficient evidence that Kelley was a knowing recipient of the images rather than someone who was being "spammed" with the e-mails without knowing about it or against his will. The majority says that there was enough evidence to conclude that Kelley had asked to be a recipient of the e-mails; Judge Thomas concludes that there was a good chance that Kelley was an unwilling recipient and therefore that the warrant was invalid. But something seems off-track here: the court is applying the wrong Fourth Amendment standard. Search warrants don't require probable cause that a particular person committed a particular offense. Rather, they require probable cause that evidence or contraband is located in the place to be searched. The key case is Zurcher v. Stanford Daily, where the Court offered the following analysis: The critical element in a reasonable search is not that the owner of the property is suspected of crime, but that there is reasonable cause to believe that the specific "things" to be searched for and seized are located on the property to which entry is sought. . . . Federal Rule Crim.Proc. 41, which reflects "[t]he Fourth Amendment's policy against unreasonable searches and seizures," United States v. Ventresca, 380 U.S. 102, 105 n. 1 (1965), authorizes warrants to search for contraband, fruits or instrumentalities of crime, or "any . . property that constitutes evidence of the commission of a criminal offense. . . ." Upon proper showing, the warrant is to issue "identifying the property and naming or describing the person or place to be searched." Probable cause for the warrant must be presented, but there is nothing in the Rule indicating that the officers must be entitled to arrest the owner of the "place" to be searched before a search warrant may issue and the "property" may be searched for and seized. . . .So the proper Fourth Amendment question was whether probable cause existed to believe child pornography was in the account, not whether there was probable cause that Kelley in particular was guilty of an offense. It seems that the government improperly failed to make this argument, so I suppose you can't fault the majority for applying the incorrect standard the government wrongly believed applied. (It's unclear whether the government also conceded Fourth Amendment protection in the e-mail in the first place, which would be front-page news if true.) At the same time, I think it does suggest that Judge Thomas's dissent is pretty far off-base. Judge Thomas decries the erosion of the Fourth Amendment under the wrong test, and under the right test his distinction between spam and invited e-mail is irrelevant. Thanks to How Appealing for the link to the opinion. Thursday, March 1, 2007A Different Approach to Teaching Kids About Private Property:
Parents who are looking for an elementary school curriculum that takes a more favorable view of private property than that found at the Hilltop Children's Center may want to try the Ayn Rand School for Tots. Related Posts (on one page):
Goodbye to a great American: Arthur M. Schlesinger, Jr.
The great American historian Arthur M. Schlesinger, Jr., passed away yesterday. Best-known for his service in the Kennedy administration, and his biographies of the Kennedys, Schlesinger was criticized by those who thought that intellectuals should stay out of politics. In my Honors thesis at Brown, a quarter-century ago, I examined the question of the intellectual in politics, through a biography of Schlesinger. Great Moments in Education - Of Legos, Private Property, and the Tragedy of the Commons:
Teachers at the Hilltop Children's Center in Seattle decided to use Legos to teach children that private property is evil:
The teachers were also disturbed that "some kids hoarded the "best" pieces, denied their classmates any access at all to the pretend town they were building." The heavyhanded idiocy of the teachers speaks for itself. Even some of the little tykes weren't taken in:
However, as a property professor I should point out that the teachers' experiment in common property legos may have some educational value, though not the kind that the teachers intended. Giving Legos to a large group of children without allowing any kind of private ownership rights is a great way to demonstrate the dangers of what we law and economics types call the tragedy of the commons. If kids are not allowed to "hoard" Lego pieces, it is unlikely that an impressive-looking Lego town can be built in the first place. If there is no right to exclude of the kind decried by the teachers, any Lego town that does get built is likely to be quickly destroyed by other children looking for Lego pieces to use for their own projects. Avoiding tragedies of the commons is one of the main reasons why private property is an essential social institution, and the Seattle teachers have, however unintentionally, stumbled on a new way to teach children about it. UPDATE: There is an obvious irony in the teachers' position on private property. According to its website, the Hilltop Children's Center is a private school that requires parents to pay tuition, as well as a $50 fee just for getting on the waiting list for potential future admission. In order to support itself and pay the teachers' salaries, Hilltop relies on private property and its associated right to exclude - exactly the institutions that the teachers are trying to indoctrinate the children against. Related Posts (on one page):
Brett Marston on Warren Burger's Book Annotations:
Brett Marston recently purchased a number of books from Chief Justice Warren Burger's personal library. Brett has been blogging about the margin notes that Burger wrote in to his books, a number of which concerned Burger's views about the proper role of the courts. There are no major surprises, but it's still pretty interesting. You can see an example here, and the whole thread is here.
Wednesday, February 28, 2007What Are the Facts in Scott v. Harris?:
This is a second response to the oral argument on Monday in Scott v. Harris. In this post, I want to focus on the question, "Just what are the facts?"
This is a serious question because the description of the pursuit found in the District Court and the Court of Appeals opinions seems very different from the facts you see when you watch the video. So which governs — the facts as described by the lower courts or the facts as seen in the videotape? Justice Breyer memorably framed the key question at oral argument: What am I supposed to do? I mean, I'll look again at the tape. I certainly will do that. But suppose I look at the tape and I end up with Chico Marx's old question with respect to the Court of Appeals: Who do you believe, me or your own eyes?The right answer is that Justice Breyer should believe his own eyes. It's the right answer for a pretty simple reason: The facts described in the lower court decisions were technically accurate but irrelevant. The lower courts weren't actually making factual "findings" or reviewing the sufficiency of the evidence. Rather, the lower court judges simply misunderstood the legal issues before them, and therefore pointed out facts that were technically true but legally irrelevant. As a result, the Supreme Court doesn't have to choose between two sets of facts. There's really only one set of undisputed facts, and the question is their legal relevance. Here's the key passage about the facts from the Eleventh Circuit's decision, 433 F.3d at 817, which I have numbered in order to break out the distinct factual statements: As noted by the district court judge, taking the facts from the non-movant's viewpoint, [1] Harris remained in control of his vehicle, slowed for turns and intersections, and typically used his indicators for turns. [2] He did not run any motorists off the road. . . . [3] Nor was he a threat to pedestrians in the shopping center parking lot, which was free from pedestrian and vehicular traffic as the center was closed. [4] Significantly, by the time the parties were back on the highway and Scott rammed Harris, the motorway had been cleared of motorists and pedestrians allegedly because of police blockades of the nearby intersections. . . . [5] Nor does the evidence show that Scott or the other officers were in immediate danger or threatened with imminent harm. Accepting Harris' version of events, Harris did not attempt to ram, run over, side-swipe, or swerve into any of the officers (which might have put their lives in danger in the parking lot), nor did he attempt any such conduct once he was back on the highway immediately before the seizure.The legally relevant issue in the case is how much of a danger Harris posed to the public based on his driving. Scott had seen Harris during most of the chase, including during the scene at the shopping center. The question is, how much of a danger would Scott reasonably think Harris posed based on what Scott observed? Let's take the lower court's facts in order to see if they are responsive to the legal issue: [1] "Harris remained in control of his vehicle, slowed for turns and intersections, and typically used his indicators for turns." This is true, at least viewing the record favorably to Harris. But Harris was also driving at 100mph on a two-lane highway zig-zagging in and out of traffic and running lights. The question was the risk of a future accident, not whether it's possible to identify some discrete aspects of Harris's driving that were not themselves dangerous. So this seems pretty non-responsive to the legal question. [2] "He did not run any motorists off the road." This seems true based on the videotape, at least assuming that "running off the road" means really forcing a car off onto an embankment or something like that. But the question is future dangerousness, not one form of a past harm. Again, not responsive. [3] "Nor was he a threat to pedestrians in the shopping center parking lot . . . " Well, that seems right, viewing the evidence favorably to Harris: I don't recall seeing evidence of pedestrians in the parking lot who were directly threatened. But the question was whether Harris was dangerous based on a totality of the circumstances, not whether in an earlier 10-second window Harris had posed a particular threat to a particular type of victim. [4] "[B]y the time the parties were back on the highway and Scott rammed Harris, the motorway had been cleared of motorists and pedestrians . . ." At the exact moment of contact, the motorway was indeed clear. But again, that's not the question. Fast-forward a few seconds and the motorway up ahead would not be clear, and it was that future that Scott had to contemplate when assessing Harris's dangerousness. [5] "Nor does the evidence show that Scott or the other officers were in immediate danger or threatened with imminent harm. Accepting Harris' version of events, Harris did not attempt to ram, run over, side-swipe, or swerve into any of the officers (which might have put their lives in danger in the parking lot), nor did he attempt any such conduct once he was back on the highway immediately before the seizure." True, after the parking lot episode Harris did not direcly threaten Scott. Scott directly threatened Harris only once, in the parking lot, and the contact was made some 90 seconds later. Once again, though, that's not the relevant question. The question is whether and how much of a danger Harris posed generally, not whether at the precise moment of contact Harris posed a danger directly to Scott or other officers. In sum, I think the lower court's description of the facts are hard to square with the video not because they were technically inaccurate, but rather because they were so obviously incomplete. The reasonableness inquiry requires an analysis of the totality of the circumstances, and the lower court opinions did not provide that. Justice Breyer's recollection of what he saw "with his own eyes" was the totality of the circumstances of the pursuit, and that's the corrrect perspective for the Court to follow. Related Posts (on one page):
Does a Female Muslim Police Officer Have a Right To Wear a Khimar?
That's the question in Webb v. City of Philadelphia; this decision provides some background, and dismisses some collateral claims on procedural grounds, but does not dispose of the substantive question. Title VII generally obligates employers to reasonably accommodate employees' religious practices, so long as doing so doesn't cause an undue hardship to the employer (something caselaw has defined as anything more than a minimal hardship). Webb's claim is chiefly that her religious practice of wearing the khimar (which, I'm told, is "a headscarf worn by observant Muslim women that hangs down to just above the waist") must therefore be accommodated. Sentiments About the Law, as of 1856 --
at least the sentiments of Joel Prentiss Bishop, writing the dedication to his criminal law treatise (some paragraph breaks added, some deleted):
Neologisms:
On the "isn't a word" thread, Sasha points out:
Related Posts (on one page): "Threatening" Campaign Speech?
From a decision of the Minnesota Office of Administrative Hearings:
Phillips' behavior was pretty bad, and likely bad politics, too. (Note that Phillips lost, and Manne won.) But should it be treated as a constitutionally unprotected threat? The statement "If you don’t remove the sign and still believe in Mr. Menne than you must believe in cheating the rest of US in the city and that will not go unnoticed in the future" is ambiguous -- it may be a threat of (unconstitutional) official retaliation by the city council, it may be a threat of violent reprisal (probably not very likely, though it might be if there had been a history of such violence in town), it may be a threat of social ostracism, or it may be a threat of economic boycott. Threats of violent reprisal or unconstitutional official retaliation are clearly unprotected. Threats of social ostracism, and of politically motivated economic boycott by consumers (though perhaps not always by businesses) are generally protected, see the Supreme Court's 1982 NAACP v. Claiborne Hardware decision. It's possible that the administrative panel resolved the ambiguity by hearing the witnesses and determining what Anderson intended to threaten, and how reasonable witnesses would have perceived the threat. (Threats, according to the Supreme Court's Virginia v. Black decision, are unprotected if they are intended to intimidate through the threat of constitutionally impermissible retaliation and they would reasonably be understood this way.) The decision doesn't discuss this, but maybe this finding is implicit. On the other hand, if the panel generally assumed that all threats of retaliation, including social ostracism and individual politically motivated economic boycott, are punishable, then the panel was likely mistaken. Note also that the statute itself draws no distinction between threats of economic boycott (and possibly social ostracism) and punishable threats: It equally prohibits threats of "force, coercion, violence, restraint, damage, harm, loss, including loss of employment or economic reprisal, undue influence, or temporal or spiritual injury," when made to compel the individual to vote for or against a candidate or ballot question." That might make the statute unconstitutionally overbroad, because even though much of the speech that it punishes -- possibly including the speech in this very case -- is constitutionally unprotected, the statute also punishes a substantial amount of constitutionally protected speech (possibly threat of "harm" in the sense of social ostracism, and likely threat of "economic reprisal" in the sense of politically motivated economic boycott), at least unless state courts interpret the statute narrowly so as to exclude such speech. Who Would Bush Nominate If He Had Another SCOTUS Pick?:
Over at ConfirmThem, Jan Crawford Greenburg is doing a very interesting Q&A (part 1 here, part 2 here, part 3 coming soon) that includes the following:
Given the current political climate, who do you think President Bush will nominate to the Court if a third SCOTUS retirement occurs during his presidency?Obviously Bush would be able to nominate whoever he wants if an opening occurred, so I take Greenburg's take to be her best guess of what would happen rather than who would necessarily be the smartest pick. Still, my own completely uninformed pet theory for who Bush might nominate if he has an opening is Senator John Cornyn. To be clear, I don't know enough about Cornyn's personal relationship with the President or his Senate colleagues to know if this is even a remote possibility. But from my outsider perspective it seems to me that Cornyn could be a very savvy pick. He's an undisputed conservative; he's a former state Supreme Court Justice with 13 years of experience as a judge and experience in all three branches of government; and he is someone who I gather would be relatively hard for the Senate to reject (as a Senator himself). If the President wants a confirmable solid conservative, Cornyn would seem to be a very good pick if a vacancy occurs. Of course, John Cornyn is a man, baby, and perhaps the President would not consider naming another man to the Court in the event of a vacancy. I don't see how the politics line up for such a judgment, but the President would of course be free to make that call. And if Supreme Conflict is a reliable guide, the President has a genuine commitment to gender diversity and would likely not want to nominate another man. IRB "Ethics" Overload:
Are Institutional Review Boards (IRBs) out of control? Based on this article from the New York Times, I am inclined to say "Yes they are." (Link via Science & Law Blog.) Ridicule and Ellipses:
A week ago, a few people e-mailed me about various bloggers (e.g., Grammar.police, Matthew Yglesias, and Obsidian Wings) mocking a "metaphor from Laura Sessions Stepp's Unhooked, excerpted in [a Washington Post] review:
Well, that does sound mighty ridiculous; for instance, why is "hooking up," which is presumably consensual and even enthusiastic, like having someone nonconsensually break your property? Why is your body like a house? As a satirical version attributed to Yglesias suggests, why not say, "Your body is your property. Think about the first home you hope to own. You want to have a big party and invite all your friends over"? Yet the ellipses in the Washington Post review suggest that the quote in the review is incomplete; and while the review must necessarily omit some items, it might have made the argument seem more ridiculous than it really is. I therefore actually got a copy of the book, and here's what it says (p. 262):
Now this is far from brilliant prose, and it does jump around a bunch of related but different concepts. Still, the opening paragraph (after the subheading) is considerably less ridiculous than it seems. The second sentence (the omission of which the Post noted with the ellipses) explains why we're talking about nonconsensual rock-throwing. In this paragraph, the author seems not to be faulting fully consensual, enthusiastic casual sex, but rather casual sex of the sort that is at least not entirely welcome (a characteristic that I take it the author thinks is not uncommon in casual sex). Many young women, the author is suggesting, let men have sex with them even though they do not fully "welcome them in," perhaps because they feel pressured by the man or by social expectations. Not-fully-welcome sex is not the same as rock-throwing, but at least the analogy is closer than it is between presumably enthusiastic "hooking up" and rock-throwing. The fourth sentence (which is also omitted in the Post review, though conventions of quotation allow the omission not to be marked with ellipses) then tries to tie the body with the house: They aren't the same (for instance, in the sense that they're both great places to have a party), but rather they're both valuable, and your body is if anything even more valuable. Again, not a terribly convincing metaphor, but not as zany or worthy of derision as some might think. Among other things, try the lampoon quoted above on the whole paragraph:
Not quite as ridiculous, right? And to the extent that the ridiculousness of the original lampoon is aimed at showing the bad writing or reasoning of the book, the inapplicability of the lampoon to the unabridged quote suggests that the unabridged writing and reasoning isn't quite as bad. New SSRN Posting, "Gordon Tullock's Critique of the Common Law":
I have just posted a new article on SSRN, "Gordon Tullock's Critique of the Common Law." Here's the Abstract:
Whorton v. Bockting:
This morning the Supreme Court handed down Whorton v. Bockting, unanimously reversing the Ninth Circuit (surprise!) and holding that Crawford v. Washington claims are non-retroactive under Teague v. Lane.
What does this mean, you're wondering? Well, here's a really simplified version. In 2004, the Supreme Court expanded the meaning of the right to confront witnesses at criminal trials; today, the Supreme Court held that if you were convicted of a crime before 2004 you can't rely on the 2004 decision to try to get out of jail. Justice Alito wrote the opinion of the Court. It's a pretty clean and straightforward decision, just over 13 pages long. "Europe's Runaway Prosecutions"
An Italian Court is preparing to prosecute CIA agents for their alleged participation in the kidnapping and rendition of a Muslim cleric. The cleric was sent to Egypt where he claims he was tortured. Writing in today's Washington Post, David Rivkin and Lee Casey argue that this prosecution is part of a disturbing trend: "Overseas opponents of American foreign policy are increasingly turning to judicial proceedings against individual American officials as a means of reformulating or frustrating U.S. aims, and action to arrest this development is needed." Rivkin and Casey argue that "extraordinary rendition" is perfectly legal, but can and should be ended because it is unnecessary and is fervently opposed by European nations. This does not justify the Italian prosecution, however. Indeed, they suggest that the CIA agents should be immune to prosecution if, as reported, Italian officials were aware of their activities. They conclude with a particularly provocative claim: Congress should make it a crime to initiate or maintain a prosecution against American officials if the proceeding itself otherwise violates accepted international legal norms. Thus, in instances where there is a clear case of immunity, U.S. prosecutors could answer proceedings such as the Italian indictments with criminal proceedings in U.S. courts. By responding in kind, even if few overreaching foreign officials are ever actually tried, such a law would create a powerful disincentive for these kinds of legal antics.This would seem to me to be an unprecedented step -- and potentially at odds with Rivkin & Casey's opposition to the criminalization of foreign conduct. Am I missing something? Is there any precedent for what they propose? Where Are the McLawsuits?
Some legal analysts have been anticipating a surge of lawsuits against fast-food chains and other purveyors of "unhealthy" foods. The underlying assumption is that fat would be the "next tobacco" -- a prospect derided by proponents of tort reform and critics of our litigious society. Thus far, however, the wave of fat suits have yet to materialize. Weil, Gotshal & Manges attorney Lianne Pinchuk does not think this is an accident, as there are important distinctions between tobacco and fat-based tort claims. "Attempts to use tobacco litigation as a model for fast food litigation have generally failed and will likely continue to fail in the future," she writes in the National Law Journal. Among other things, many state legislatures have acted to insulate fast-food chains from certain types of suits, whereas some state legislatures sought to facilitate claims against tobacco companies. There has also yet to be a "smoking gun" document suggesting fast-food companies have acted in bad faith. As Pinchuk concludes: Despite the lack of success of obesity-related personal injury cases thus far, it is important to remember that when allegations were first made against tobacco companies, the possibility of large verdicts seemed remote. It was only once the litigation reached the discovery phase and negative internal documents were revealed that large plaintiffs' verdicts became possible. The Big Food cases to date have generally not led to discovery, and only Big Food itself knows what damning documents may exist. If they do exist and are discovered by plaintiffs lawyers, they may provide ammunition for more suits and increasing verdicts. Right now, however, fast food companies are enjoying more protections than tobacco companies ever did, and it appears that Big Food is not the next Big Tobacco. This Doesn't Do Much for the U.S. News Law School Rankings' Credibility:
Of course, I've never thought that U.S. News rankings had much credibility to begin with. As I've suggested before, the best way to judge the "rank" of a law school from the perspective of students is by looking at the quality of its student body, primarily through the most objective factor available, LSAT scores. Looking at a school's LSATs scores tells you how desirable a law school is to students at large, taking into account, via the "wisdom of crowds," all relevant considerations, including job prospects, tuition, locational advantage, teaching quality, job placement, faculty prestige, and so forth. Such data reveal, for example, that relatively new urban law schools with strong faculties in desireable locations, such as Cardozo and George Mason, are preferred by students over many more "prestigious" (and higher-ranked in U.S. News), and venerable, Big Ten Midwestern state law schools (judged by 25th or 75th percentile LSATs, Iowa and Wisconsin aren't even in the top 50!). For an individual student making a decision, this test would need to be heavily modified by individual circumstance: who cares if students generally prefer to live in New York, D.C., or L.A., if you'd prefer to live in Lexington, Virginia, or St. Louis, Mo.? Who cares about job placement if you know you are taking over your father's practice? And so on. UPDATE: There are lots more great statistics in the same Seto article. Here's one more: "Harvard gets a 0.4 bonus for its four-point edge in median LSATs (173 as opposed to 169), while losing 0.7 overall score points for a .06 deficit in median UGPAs (3.81 as opposed to 3.87)." |
