Saturday, March 17, 2007

Two Fallacies that Cause (Excessive) Libertarian Despair:

Tyler Cowen's counsel of libertarian despair (discussed in my previous post), and other similar works by fearful libertarians (e.g. - this slightly less pessimistic contribution to the same symposium by Brink Lindsey) are, in my view heavily influenced by two important fallacies that lead many libertarians to be more pessimistic than is warranted.

I. The All or Nothing Fallacy.

One is the "all or nothing" fallacy, which leads many to conclude that because libertarians can't completely eliminate excessive government, that means that we can't achieve anything worthwhile by trying to cut it back incrementally. For example, as I argued in my previous post, Tyler provides good reasons for believing that complete victory is impossible, but almost no argument against the possibility of partial success. Of course, the inability to achieve complete success is not unique to libertarianism. Our liberal, conservative, and socialist rivals have the same problem. Liberals are far from achieving their goal of creating a European-size welfare state in the US, and have little prospect of succeeding in the near future; social conservatives are probably even farther away from fully imposing "traditional values" on society and that goal keeps on slipping even further away. Some liberals and conservatives have given up because of all or nothing thinking, but most recognize that partial success is still worth striving for. We should do likewise.

The all or nothing fallacy is not unique to libertarians. You see it also in the views of those 1960s radicals who believed that nothing short of complete social revolution was worth striving for. But for reasons that I can't fully explain, I think that libertarian activists are, on average, more susceptible to this error than liberals or conservatives.

II. Overstating the Importance of Recent Events.

The second fallacy is overstating the importance of the most recent events. Psychologists call this the "availability heuristic." We overvalue the significance of recent data because they tend to be uppermost in our minds and of course get more coverage in the media. Thus, many libertarians despair because Bush's "big government" conservatism has enlarged the state, while the Democrats have turned away from Bill Clinton's moderate, partly libertarian agenda. However, it is possible to point to equally bleak short periods in the past that were even worse, yet proved not to be a harbinger of the future. Between 1965 and 1975, for example, we saw 1) the rise of the Great Society, 2) government's mishandling of the Vietnam War, 3) Nixon's big government conservatism (even more thoroughgoing than Bush's, complete with price controls and a proposal for nationalized health care), 4) the growing popularity of socialist and communist ideology in much of the world, and 5) the beginning of the oil crisis, with its accompanying perverse government interventions. Yet libertarians would have been wrong to give up in 1975 merely because the most recent trends were against them. Indeed, the next twenty years saw substantial movement in a libertarian direction both in the US, and in many other parts of the world. And we would be equally wrong to give up because of today's less extreme adverse trends. Because of our successes in the 1980s and 90s, we - unlike the libertarians of 1975 - have grown used to the idea that we are destined to win, and thereby more likely to be deeply disappointed when we suffer setbacks. This reaction is understandable, but wrongheaded.

That is not to say that libertarianism does not face serious challenges or that libertarians haven't sometimes shot themselves in the foot, as with the waste of time and resources poured into the Libertarian Party. It does not even prove that we have not entered a period where the libertarian cause has, for some reason, become hopeless. However, we are not justified in despairing merely because we have failed to win a complete victory or because we have suffered several years of political setbacks. Those who counsel despair need much stronger evidence than that to prove their point.

Related Posts (on one page):

  1. Two Fallacies that Cause (Excessive) Libertarian Despair:
  2. Does Libertarian Success Just Produce More Government, and Should We Give Up Trying to Shrink It?
Tamanaha's Temptation:

I've been mulling over Brian Tamanaha's post "Losing My Stomach for Honest Academic Exchange," in which he reflects on the tension between personal relationships and academic integrity. The post was prompted by his discomfort at the prospect of writing a negative review of work by a fellow academic, and his "remorse" over making critical comments in another recent review.

From now on, to avoid being in these situations, I have resolved to only write reviews for books that I truly like (which I have done with pleasure a number of times). I feel like a coward, shirking my responsibility as an academic.
It would be easy to pile on Tamanaha for allowing his desire to maintain personal relationships to overcome his commitment to academic integrity. In this he is surely not alone, however. Many academics mistake a refusal to be forthright and critical for the virtue of civility, and academia as a whole is much the worse for it.

Yet Tamanaha deserves credit for both for raising this issue and engaging it with such candor and self-awareness. Few of our academic colleagues would openly acknowledge a tendency to choose a superficial collegiality over honest academic exchange. Indeed, far too many academics pretend to engage in serious discourse when doing little more than mutual back-scratching. This may advance careers but it is corrosive of serious academic standards. It is the professional equivalent of grade inflation.

To Tamanaha's further credit he recognizes the threat this tendency poses to the entire academic enterprise.

It’s not as much fun as it used to be to have a frank exchange of ideas, at least for me. More importantly, if we all start censoring our critical thoughts out of a desire not to offend others, or to avoid provoking a backlash, academic discourse will suffer. For this reason, I hope others do not share in my cowardice.

UPDATE: More from Daniel Solove here.

The Bravery of Bill Richardson:

New Mexico Governor Bill Richardson wants to be President, but that will not stop him from signing a bill legalizing medical marijuana in limited circumstances. "So what if it's risky? It's the right thing to do," Richardson told the press. Then again, New Mexico will be the twelfth state to approve medical marijuana, so maybe the move will actually help Richardson's campaign. (Link via TalkLeft)

If Death Is Always Worse, Is Anything Permitted?

I have long taken it for granted that there are some things worse than death. Certainly torture, if severe enough, can be worse. Apparently this is not a universal view, however.

At Balkinization, Marty Lederman points to this interview with John Yoo in which he says "death is worse than torture," and therefore torture must be permissible in some circumstances:

death is worse than torture, but everyone except pacifists thinks there are circumstances in which war is justified. War means killing people. If we are entitled to kill people, we must be entitled to injure them. I don't see how it can be reasonable to have an absolute prohibition on torture when you don't have an absolute prohibition on killing. Reasonable people will disagree about when torture is justified. But that, in some circumstances, it is justified seems to me to be just moral common sense. How could it be better that 10,000 or 50,000 or a million people die than that one person be injured? [emphasis added]
The second half of Yoo's quote is the fairly traditional (albeit highly controversial) utilitarian argument that torture may be justified in extreme circumstances to save innocent life. In the first half of the quote, however, Yoo suggests that because "death is worse," then if one is allowed to kill one's enemy in wartime, one must be allowed to do anything else to one's enemy as well. Whatever one's view of the acceptability of torture, this can't be right. Unless one is going to argue that torture would be justified whenever killing would be justified, then the lack of an absolute prohibition on killing cannot establish that an absolute prohibition on torture is not "reasonable."

Bill Evans Trio Plays "Waltz for Debby": Bill Evans was one of the most influential pianists of the 1960s; along with McCoy Tyner and Herbie Hancock, he helped define the sound of modern jazz piano. Evans is probably most famous for his trio recordings live at the Village Vanguard in 1961 with drummer Paul Motian and the amazing bassist Scott LaFaro. The recordings were divided into two albums, Waltz for Debby and Sunday at the Village Vanguard, and have since been combined together with the band's introductions and informal conversation into a three-disc set, The Complete Village Vanguard Recordings. (Interestingly, Paul Motian still regularly plays at the Village Vanguard, although his style today is 180 degrees from what it was with Evans.)

  YouTube doesn't have any recordings of that wonderful trio — tragically, LaFaro died in a car acccident 10 days after the Vanguard recordings were made — but it does have some terrific Bill Evans trio performances from just a few years later. My favorite is this 1965 performance of Waltz for Debby with Chuck Israels on bass and Larry Bunker on drums. The performance is much too brief — only 4:30 — but it's still excellent.
  Enjoy. And be sure to click on the YouTube link to see a number of additional performances with the same trio.
The Mortgage Professor on Suitability:

I was delighted to open my Washington Post this morning and see that the Real Estate Section of the paper is now carrying the column by the Mortgage Professor, Jack Guttentag. I've been a regular to his web site over the past couple of years, and I'm glad that he is going to be made widely available here. I've always liked Guttentag because he is not solely a practical personal finance advisor nor an abstract economic theorist, but rather is a great combination of the two. Today's column is a gem . It takes on the faddish and confused proposals to impose the "suitability" requirement developed in securities law onto mortgage lending. Consider:

The case for a mortgage suitability standard looks both simple and plausible, and it appears to have been making headway in Washington. A federal suitability rule has worked in the securities industry, the argument goes, so why wouldn't it work with home mortgages?

One major difference between the two markets is that the securities market has only one problem to which suitability is directed: preventing unsophisticated investors of limited means from being sold securities that are too risky for them. The home mortgage market, in contrast, has multiple problems for which suitability has been offered as a remedy.

First he notes that unlike the securities market, suitability in the mortgage market is directed at the wrong parties to resolve the underlying problem. But then he observes the more fundamental point about trying to impose a suitability requirement in this area:

The objectives of mortgage borrowers, in contrast, are diverse, complex and often not known by the loan provider. Here are five objectives that have been reported to me by borrowers who have selected option ARMs and interest-only loans:

· Reduce cash outflow to invest the excess in securities.

· Reduce cash outflow to pay down a second mortgage.

· Pay principal when convenient.

· Buy more house.

· Reduce payment to avoid default.

I sometimes get involved in an exchange with borrowers about whether their objectives are worth the risk, and sometimes I express my opinion to them quite forcefully. I would not want the legal right to overrule them, however, because I am not that smart.

As I said, I've been reading the Mortgage Professor for years and I recommended him strongly for those interested in both the practicalities and policies of mortgage issues. I often agree with him and even when I don't he is always informative.

Does Libertarian Success Just Produce More Government, and Should We Give Up Trying to Shrink It?

In his contribution to the recent Cato Unbound debate on Brian Doherty's essay on prospects for libertarianism, Tyler Cowen claims that the success of libertarian ideas leads to bigger government. He also contends that this proves that libertarians should largely abandon the effort to shrink the modern state and instead focus on other issues:

Libertarian ideas also have improved the quality of government. Few American politicians advocate central planning or an economy built around collective bargaining. Marxism has retreated in intellectual disgrace.

Those developments have brought us much greater wealth and much greater liberty, at least in the positive sense of greater life opportunities. They’ve also brought much bigger government. The more wealth we have, the more government we can afford. Furthermore, the better government operates, the more government people will demand. That is the fundamental paradox of libertarianism. Many initial victories bring later defeats.

I have enormous respect for Tyler and his scholarship, but in this case I think he's wrong. It is true that we can afford more government if we become wealthier. But more wealth also enables us to afford more of everything else. The extra increment of wealth will only be used to buy more government if people believe that to be a better use of the additional resources than other possible purchases. And of course the whole point of libertarianism is that purchasing more government is rarely, if ever, a good deal relative to the available alternatives. Moreover, if Tyler is correct that "the better government operates, the more government people will demand," then we should expect the growth of government to focus on those areas where libertarian reforms have made government operate better. Tyler himself lists several such fields, including monetary policy, policy towards the high tech sector, and a less perverse tax system. It is, striking, however, that most of the growth in government over the last 30 years has not occurred in these areas. It has instead focused on Social Security, medical care, agricultural subsidies, and other areas where libertarian ideas have had little or no impact on policy, and fairly crude "command and control" statism remains the name of the game.

Tyler next argues that, even though in his view (and mine) libertarians are right to believe that most of the post-New Deal regulatory/welfare state is a bad idea, they should largely stop fighting it because big government and growing wealth are a "package deal:"

The major libertarian response to modernity is simply to wish that the package deal we face isn’t a package deal. But it is, and that is why libertarians are becoming intellectually less important compared to, say, the 1970s or 1980s. So much of libertarianism has become a series of complaints about voter ignorance, or against the motives of special interest groups. The complaints are largely true, but many of the battles are losing ones. No, we should not be extreme fatalists, but the welfare state is here to stay, whether we like it or not ....

Let’s not fight the last battle or the last war. Let’s not obsess over all the interventions represented by the New Deal, even though I would agree that most of those policies were bad ideas.

Tyler is probably right to suppose that we can't achieve a complete rollback of the post-New Deal state in the foreseeable future. It does not follow that it is impossible to make large cutbacks in the size of government that fall short of the libertarian ideal. There is no theoretical reason to believe that big government and modern prosperity are a "package deal" to such an extent that such cuts are impossible. Indeed, empirical evidence suggests the opposite. In just a few years, Ireland has gone from being a fairly typical big government European-style social democracy, to a set of policies that have allowed to almost catch up with the US in the Index of Economic Freedom (a measure that ranks overall degree to which a nation pursues free market as opposed to statist policies). New Zealand and Australia, which also pursued quite statist policies until recently, have actually surpassed the United States on the index, and Singapore has always ranked well ahead.

None of this proves that cutting the size of government is easy or that every country can imitate Ireland's success. But it does suggest that Tyler is wrong to suppose that big government and modernity are so closely intertwined that major cuts in government are impossible. At the very least, we need much stronger evidence to demonstrate the existence of Tyler's "package deal" than he has provided.

Tyler also contends that, instead of trying to cut government, libertarians should refocus on issues such as global warming, nuclear terrorism, and intellectual property. We should indeed give careful consideration to these issues. But it does not follow that that requires us to give up the fight against big government. To the contrary, if (as Tyler believes), we are right about the harmful effects of overgrown government, reducing its size is likely to improve our ability to deal with these newer dangers. To the extent that reducing inefficient or harmful government programs increases our wealth, that creates more resources that can be devoted to combatting the threats Tyler points to. Moreover, as I have argued on many occasions (e.g. - here), a smaller government will be easier for rationally ignorant voters to monitor, and thus more likely to perform well. Finally, as Bryan Caplan points out in his response to Tyler, the new issues themselves might well be better addressed (at least in part) through private sector rather than political initiatives.

Bottom line: Libertarians are unlikely to win a complete victory over the modern state. But that doesn't mean we shouldn't try for incremental movement in that direction. The impossibility of total victory doesn't mean that we should give up the fight. Partial success is a lot better than admitting defeat.

UPDATE: It is theoretically possible that we can cut government down to roughly the size that currently prevails in the US, Ireland, or New Zealand, but no further. If so, Tyler would be correct as to the prospects for libertarianism in the US, but wrong about the vast majority of the world. However, Tyler provides no reason to believe that the current size of government in these countries is indeed the smallest that is politically feasible. So even in the most free market nations in the developed world, we should not rule out the possibility of major cuts in the size of government.

Related Posts (on one page):

  1. Two Fallacies that Cause (Excessive) Libertarian Despair:
  2. Does Libertarian Success Just Produce More Government, and Should We Give Up Trying to Shrink It?

Friday, March 16, 2007

Bad Week for DADT:

Two news items this week, one closely following the other, together shed some interesting light on the current state of "Don't Ask, Don't Tell." Under DADT, some 10,000 military personnel — including many with critical skills in which there's a shortage, like Arab linguists — have been expelled from service solely because it's learned they're gay.

First, on Monday, the Chairman of the Joint Chiefs of Staff, Marine Gen. Peter Pace, was asked by newspaper reporters to explain why he supports DADT. According to the Chicago Tribune, Pace defended the policy thus:

"I believe homosexual acts between two individuals are immoral and that we should not condone immoral acts," Pace said in a wide-ranging discussion with Tribune editors and reporters in Chicago. "I do not believe the United States is well served by a policy that says it is OK to be immoral in any way.

"As an individual, I would not want [acceptance of gay behavior] to be our policy, just like I would not want it to be our policy that if we were to find out that so-and-so was sleeping with somebody else's wife, that we would just look the other way, which we do not. We prosecute that kind of immoral behavior," Pace said.

The comments generated lots of criticism, including from the Secretary of Defense, who said that "personal opinion" about the morality of homosexuality had no place in the debate over the policy. Pace himself clarified that he was expressing only his personal views.

A significant and growing minority of Americans disagree with Pace that homosexual acts are immoral. These include not just Democrats like Barack Obama, but Republicans like conservative ex-military Sen. John Warner, who said this week that he "strongly disagreed" with Pace that homosexual acts are immoral. Most Americans also think gays should be able to serve in the military.

Even if one thought homosexual acts were immoral, it doesn't necessarily follow they should be disqualified from service. Lots of people do immoral things — lie, cheat, steal, commit adultery, commit crimes, take the Lord's name in vain, are gluttonous and lustful, worship idols — but are not automatically disqualified from service on that account.

Further, Pace's view that allowing gays to serve openly would send a message that we condone immorality is very questionable and oddly reductionist. We don't send a message that lying is OK by allowing liars to serve. And the predominant message of allowing gays to serve openly would not seem to be that we condone immorality but that we believe it is good and moral to serve one's country, especially in its hour of need. Why does Pace think that everything a gay person does is mainly about sex rather than, say, honorably serving one's country, as thousands have done in the wars in Iraq and Afghanistan?

On a smaller note we don't, pace Pace, "prosecute" people for homosexual acts (or even adultery) and haven't in most states for several decades. But in this era of recruitment shortages we increasingly do welcome into military service those who have actually been prosecuted and convicted of real crimes.

All that aside, I think Gen. Pace did us a service by frankly expressing his own moral perspective in defense of the policy. I suspect that a great many people, in and out of the military, share his idealistic perspective and would have answered in just the way he did. Though Pace and others would no doubt advance other reasons for excluding gays from service, it's revealing that the moral objections came first.

To see why Gen. Pace's honesty is so valuable, consider the second DADT event of the week. We learned on Wednesday that discharges for homosexuality dropped again in 2006, down to 612 from 1,227 in 2001. That's right, since the advent of the post 9/11 phase of the war on terror, when the country most needs the skills and bodies of its citizens on the front lines, expulsions for homosexuality have dropped by 50%.

The common and practical concerns about service by gay personnel expressed when President Clinton proposed lifting the ban in 1993 — that there would be problems of unit cohesion and morale, damage to enlistment and retention rates, invasion of soldiers' privacy — seem to have been subordinated to the intense need for the service of these people we've trained and invested in. When unit cohesion and morale are most important, in time of war, homosexuality is comparatively unimportant. The experience of other nations' militaries is that the presence of open homosexuals is not disruptive and that their service is more valuable than whatever small amount of unease it might cause a few straight soldiers.

Putting these two events together — the morality concerns expressed by Gen. Pace and the practical decline in DADT enforcement — yields an insight about how the respective views on the policy have flipped since 1993. Back then, advocates of gay military service were scolded that the military is an intensely practical venture whose mission is to deter and fight wars — not a forum for advancing idealistic social causes and abstractions (e.g., the egalitarian claims of homosexuals).

Now advocates of gay military service argue with considerable and growing empirical support that the military is an intensely practical venture whose mission to deter and fight wars is aided by allowing gays to serve without fear of reprisal and expulsion — not a forum for advancing idealistic social causes and abstractions (e.g., the idea that homosexuality is immoral). It is now opponents of gay military service who are left to advance a form of idealism that seems increasingly disconnected from, and unsupported by, considerations of military need. Unpersuasive in abstraction, opponents of DADT have increasingly shifted to the practical; shorn of a practical foundation, supporters of DADT must increasingly shift to the abstract.

"Larry, we miss you. . . . Don't get too comfortable.": Both Andrew Sullivan and Josh Marshall are speculating about who might replace Attorney General Alberto Gonzales if Gonzales is forced to step down. I think the most likely pick would be Larry Thompson, the Deputy AG (the #2 person at Justice) from 2001 to 2003. Thompson was in the running for the AG slot last time, and he was also mentioned as a possible Supreme Court pick in 2005. However, Thompson was passed over both times and now serves as General Counsel of PepsiCo.

  Thompson seems like a natural pick if Gonzales is forced out. On one hand, he's an experienced former insider who is apparently very well-liked in the Administration. On the other hand, he has enough independence from the Administration (having been out of government for 4 years, and himself being a former U.S. Attorney) that it would give DOJ a fresh start.

   Of course, we don't yet know Gonzales's future, so right now this is just a hypothetical question. But hey, we law professors love our hypothetical questions. (Incidentally, the title of the post is a quote from a speech president Bush gave in 2005 in Buffalo, as detailed in this story.)
Dorf on Raich: Professor Michael Dorf, of Columbia Law School, had an interesting post on Dorf on Law yesterday on the Raich case that mirrors some of my thoughts in today's Journal.
The court also rejected her substantive due process claim, largely on the strength of Washington v. Glucksberg. The court plausibly read Glucksberg to require a narrow "careful" definition of the right in question, which it defined as the right to use medical marijuana. Not surprisingly, it found that society had not yet recognized any such right as fundamental.

To my mind, this only shows the poverty of the Glucksberg approach. The real question is whether the government can ban a medical treatment necessary for sustaining life on the ground that Congress by fiat declares that the medical treatment is unnecessary or not efficacious, without granting a litigant any right to present factual evidence to the contrary. The answer to that question could be yes. We might think that Congress, or a state, or an administrative agency, is better situated to make medical judgments — even if sometimes those medical judgments are politically motivated — than are the courts. Or we might think that the judgment of Congress is entitled to a rebuttable presumption of correctness. But under the Glucksberg approach, we don't even ask the question.
By coincidence Mike presented a paper at my Advanced Constitutional Law Seminar at Georgetown yesterday and he and I discussed in class why Judge Pregerson, a stalwart liberal on the Ninth Circuit, might have ruled as he did. Mike reports on our exchange (as, a propos my previous post, I fully expected he would), and offers his own thoughts here.
But then, to repeat the question I asked yesterday, why did Judge Pregerson not also consider that in Lawrence the Supreme Court did not re-frame the issue in a way that undermined the plaintiffs’ claims? Instead of characterizing that case as involving, for example, a general right to sexual liberty (likely too broad to win approval) or a right to have same-sex anal sex (likely too narrow to win approval), Justice Kennedy accepted the plaintiffs’ framing of a right of intimate association that includes control over adult consensual sexual acts. The Lawrence opinion doesn’t exactly say that there is such a right, because it’s unclear what level of scrutiny the Court applies, but it also doesn’t adopt the Glucksberg framing. So what gives with Pregerson?

Professor Barnett suggested that Pregerson accepted the Glucksberg approach because he, Pregerson, was predicting that if the case made it up to the Supreme Court, there would be five votes for using that approach---at least in a case involving medical marijuana. And, Barnett said, that’s probably a good prediction in light of the questions Justice Kennedy asked during the oral argument in Raich, which were quite hostile to the plaintiffs’ arguments.

For me, this raises the question of whether a lower court judge should base his ruling in an area of uncertainty on his prediction of how individual Justices currently on the Court would vote, rather than his own best judgment about what the law is or should be. The Supreme Court decision in Raich 1 was not, after all, a holding on the substantive due process issue, and so nothing in that case bound the 9th Circuit in in Raich 2. My own view, which I argued at some length in a 1995 article in the UCLA Law Review, is that except in a few unusual circumstances, the job of lower court judges is to make their best legal judgment, not to predict the legal judgment of those who may end up reversing them. Here, I’ll just reproduce the barest core of the argument: "The prediction [approach] undermines the ideal of the impartial judge. It conceptualizes a high court as the sum total of the views of the individual judges. By contrast, the ideal of impartiality requires that judges attempt to separate their individual views from the requirements of the law. Thus, even if the high court judges are persons of impeccable character, the prediction model undermines the ideal of impartiality by equating particular high court judges' views with the law."
Later in the Spring, I will be contributing to a symposium sponsored by the Michigan Law Review on Glucksburg, so that will give me an opportunity to expand greatly my the critique of that approach.

More blogging on Raich on Drug Law Blog here
Raich and Scrutiny Land: I have an op-ed in today's Wall Street Journal on the Raich case that the editors entitled, Reefer Madness (link good for 7 days). I explain why
the rejection of Ms. Raich's constitutional claim highlights a serious problem with the Supreme Court's current approach to protecting liberty under the Due Process Clauses of the Fifth and Fourteenth Amendments. Ever since the New Deal, the Court will only consider challenges to a law if the liberty being restricted is a "fundamental right." Unless the liberty is characterized by the Court as "fundamental," it will not evaluate or "scrutinize" the government's claim that its restrictions are truly necessary. With laws restricting mere "liberty interests" not deemed fundamental, the Court will blindly accept the government's claim that its restriction is "reasonable."

In short, to get into "Scrutiny Land" — where the government is forced to justify its restrictions on liberty — a person such as Ms. Raich must jump through the hoop of showing that the liberty she claims is fundamental. Otherwise she automatically loses.

So what, you ask, makes some liberties fundamental and others not? According to the Supreme Court, either the right must be "implicit in the concept of ordered liberty" or it must be "deeply rooted in the Nation's history and traditions." Under either formulation, however, how a right or liberty is defined makes all the difference. Because the very same act may be accurately defined either narrowly or broadly, a court's choice of definition will dictate the outcome of the case.

Here's how.

Angel Raich contended that using the CSA against her infringed her right to preserve her life. If any right is fundamental, this one is: the right to "life" is specifically mentioned in the Due Process Clause itself, and even the federal Partial Birth Abortion Act, like the abortion law struck down in Roe v. Wade, includes an exception to its ban when the procedure is necessary to protect "the life of a mother." So if the right at issue in Ms. Raich's case is the right to preserve her life, she has jumped through the fundamental rights hoop and entered Scrutiny Land.

How does the government respond to this? By claiming that the liberty in question is the right to use cannabis for medical purposes, which it denies is either "implicit in the concept of ordered liberty" or "deeply rooted in the nation's history or traditions." Setting aside the embarrassing historical facts that marijuana was completely unregulated in the United States until the mid-20th century, and was widely used as a medication for most of our history, it is still obviously much harder to claim that a right to use cannabis for medical purposes meets either of these tests, at least as compared with a right to preserve one's life.

Given that everything turns on the description of the right, which one is correct? The dirty little secret of constitutional law is that they are both right. Ms. Raich is preserving her life and she is using cannabis for medical purposes. Because whether a liberty gets protected under the Due Process Clause depends on which accurate description a court chooses to accept, a court may rule however it wishes simply by choosing how to describe the right.

When the Ninth Circuit accepted the government's description of the right in question, the outcome followed like night follows day — because a "right to use cannabis for medical purposes" is not deeply rooted, etc., it was not fundamental. Because it was not fundamental, Ms. Raich could not enter Scrutiny Land, and her challenge failed.
Naturally, I would recommend reading the whole thing. (I will open comments on my next post, so today's comments on Raich are in one location.)

Related Posts (on one page):

  1. Dorf on Raich:
  2. Raich and Scrutiny Land:
  3. Ninth Circuit Rules in Raich Case:
An Interesting Item I Found, From 1757:

I haven't seen anyone else cite it; it's from the Journal of the Virginia House of Burgesses, June 2, 1757, reporting on a "Petition of sundry Freeholders, Inhabitants of the County of Middlesex," which set forth (emphasis added):

That a Sum, not exceeding £1000, was expressly limitted by Law, for constructing a Fort at Winchester, and they are informed £10,000 hath been expended. — That a well regulated Militia is the true and natural Defence of every free State, and praying that the Expence of building the Fort, and the Conduct of the Forces in the Pay of this Colony may be enquired to: And that if it is necessary to lay any more Taxes the same may be laid on the nett Produce of the Planter's labor, and raised within the Year ....

Further evidence, it seems to me, that "free state" in the Second Amendment means "free country", and not "state of the union independent of undue federal power." In 1757, no-one was thinking of Virginia as a "State," or talking about its independence to the colonial legislature. But, as Blackstone made clear in 1765, people were reasoning — whether or not correctly, or in a way applicable to modern conditions — that a free (in the sense of nontyrannical) country was best defended by the militia. And if the Colony of Virginia was seen as part of the free State called Great Britain, then it's quite reasonable that D.C. would be part of the free State called the U.S.


Thursday, March 15, 2007

"A Miserly Husband Has No Right

to make his wife a victim of his own sordidness." Words from George Bishop, Every Woman Her Own Lawyer: A Private Guide in All Matters of Law, of Essential Interest to Women, and by the Aid of Which Every Female May, in Whatever Situation, Understand Her Legal Course and Redress, and Be Her Own Legal Adviser (1858). More (emphasis in original):

What a Wife may do with a Miserly or Penurious Husband.—When a husband, by reason of penuriousness, meanly refuses to supply his wife with necessaries suitable to her rank and condition, the wife may obtain them of any tradesman or tradesmen, and the husband must pay the bills of the same.

On the other hand (emphasis also in original), A Wife can not maliciously run her husband into debt.

More on Kenneth Roth:

The Tikkun piece by Kenneth Roth referenced in my previous post provides some interesting insight into the mind of a leading modern NGO/human rights advocate, to wit:

My father had the good fortune to escape Nazi Germany in July of 1938. Among the lessons that I drew from his stories was that military force alone is not enough to combat the world’s evils. Clearly military force was needed to stop Hitler, but military force was also a very blunt instrument, it took a long time to play out, and it didn’t work until six million Jews had already been killed.

That's a rather odd lesson to draw, I think. Historians seem to agree that if Great Britain and France had challanged Germany militarily any time before the annexation of the Sudetanland, Germany would have been at a decided disadvantage, and would have had to retreat.

What is needed in addition to a readiness to use military force is a focus on the development of ethical views. We need a strong public morality that does not allow such atrocities to occur in the first place. I am not a pacifist by any means. I believe in using military force in places like Darfur, where it is necessary to stop the killing.

Note the example Roth gives. It's okay to use military force to stop genocide or other massive human rights violations, but not, e.g., in self-defense.

Fifty-eight years ago today (Dec. 10, 2006), in the aftermath of the Second World War, the UN General Assembly adopted the Universal Declaration of Human Rights, not as a binding treaty but as a declaration. From this broad statement of principles emerged a series of legally binding treaties. Some are quite familiar to Americans, such as the International Covenant on Civil and Political Rights, which, in many respects, looks like the U.S. Bill of Rights. Some are less familiar, such as the International Covenant on Economic, Social and Cultural Rights, which addresses issues such as the right to education, the right to housing, and the right to work—necessities that Americans often don’t think of as human rights, but that most of the world does. There are also specialized treaties on such matters as genocide, torture, racial discrimination, and the rights of women and children....

Now, there are some frustrating limits to international human rights law. First, it does not establish an absolute right to education or to food, but rather it says that governments have a duty to progressively realize those rights on the basis of available resources. So it speaks in terms of trends and intentions rather than absolute results. Second, human rights law speaks only to governments, not to private individuals who may express discriminatory attitudes.

So, Kenneth Roth thinks that the "positive rights" of international law don't go far enough. This is surely enough to make anyone with libertarian sympathies shudder. But even left-wing civil libertarians may shudder at his disappointment that international law doesn't ban "private individuals" from expressing "discriminatory attitudes."

Another concept that is often a source of confusion is that of proportionality. You often hear people say that so-and-so responded in a disproportionate way or that a specific attack was not proportionate. The confusion lies in the fact that proportionality has two different meanings; one of them is of concern to organizations like Human Rights Watch, the other is not. What we look at is whether, in a particular attack, the reasonably anticipated military advantage of destroying a target is justified in light of the likely civilian costs. For example, if you expect to kill an entire family in order to eliminate one foot soldier, that would probably be considered a disproportionate attack. This jus in bello sense of proportionality, as codified by the Geneva Conventions, requires constantly weighing expected civilian cost against military advantage.

If you're wondering how in God's name an NGO, with no knowledge of various secrets governments are privy to, at best a shaky handle on the relevant strategic objectives, an assumedly limited knowledge of military tactics, and so forth, can possibility from its position determine in hindsight whether a "the reasonably anticipated miliary advantage" of destroying any parituicular target "is justified in light of the likely civilian costs," well, so am I. [And Roth has previously expressed the completely unworkable position that if one is engaged in war, one must treat the other side's civilians as equally valuable to one's own; in other words, if you can save 99 of your own civilians by bombing a target that would result in the deaths of 100 enemy civilians, doing so would violate international law.

We also are challenging America’s method of fighting terrorism. There is nothing that is a greater affront to human rights principles than the deliberate killing of civilians. But the Bush administration has chosen to fight terrorism without regard to human rights.

Close your eyes. Think for a moment of what Iraq and Afghanistan would look like right now if the Bush Administration paid no attention to human rights. One can think that the Administration actually has some regard for human rights, or that it thinks that the negative publicity from, say, massacring civilians who support Sadrists, the Taliban, and Sunni terrorists in Iraq would outweight the benefits, but the idea that the U.S. is indiscriminately violating human rights, given the firepower available to the U.S. military, is facially absurd. Such overstatement hardly lends credibility to Roth and HRW.

Overall, I think it's fair to conclude that Roth and HRW, like Amnesty International, are part of the international far left. That's not to say that they don't sometimes do yeoman's work on human rights issues, but that their reports, public statements, et al., must be read critically in light of their underlying ideology, which despite Roth's protestations, is essentially pacifist.

UPDATE: Another stray thought: I'm sure that circa 1933, or even 1938, "public morality" in Germany was such that the German public would have overwhelmingly opposed the proposition that their government should murder six million Jewish civilians and another six million or so others for the greater glory of the Reich and the German people. That didn't stop it from happening. "Public morality" is hardly enough, especially in dictatorships where the leaders can feel free to ignore the public, suppress evidence of what they are doing, and manipulate public opinion through control of the media.

NGO Monitor Fisks Kenneth Roth of Human Rights Watch


The Fisking does not, however, include my favorite example of Human Rights Watch's [at best] willful blindness to what was going on in Lebanon.

Related Posts (on one page):

  1. More on Kenneth Roth:
  2. NGO Monitor Fisks Kenneth Roth of Human Rights Watch
Moments I'm Glad I Have an Unusual Name: I've never thought about it before, but I suppose that if a court is going to publish an opinion ruling that a defense attorney provided ineffective assistance of counsel, the court should include the defense attorney's middle name to avoid confusion.
Sebok on Contingency Fees in Germany:

Brooklyn (and soon Cardozo) law professor Tony Sebok has a very interesting column on a recent German Constitutional Court decision holding Germany's absolute ban on contingency fees unconstitutional.

Cleveland Sues to Keep Gun Laws:

Yesterday a new Ohio state law went into effect barring localities from adopting more stringent gun control ordinances than explicitly permitted by state law. The city of Cleveland maintains that this law violates the city's home rule rights, and filed suit to challenge the uniform state rule. The Plain Dealer reports here. Given how Ohio courts have dealt with home rule issues in the past, I would expect Cleveland's suit to fail.

Overruling Austin and McConnell?

Via Marty Lederman at SCOTUSBlog comes word that the appellee in FEC v. Wisconsin Right to Life will ask the Supreme Court to "reconsider" the holding in McConnell v. FEC upholding the constitutionality of a requirement that corporations to use separate, segregated PAC funds to pay for election-related advertising. If this is on the table, presumably the analogous state-law holding in Austin v. Michigan Chamber of Commerce will be too. This will make for some long briefs -- the appellees are getting 70 pages -- and an interesting decision. Stay tuned.

Ken Arrow strikes again:

Every single poll about the upcoming French presidential election is consistent with the following statements:

  • Moderate-right candidate François Bayrou would beat either of the other two main candidates, conservative Nicolas Sarkozy or socialist Ségolène Royal, in a two-way race. The second round of the presidential elections is such a two-way race, among the top two vote-getters in the first round.

  • Not only would Bayrou beat Sarkozy handily in the second round, he would also beat Royal by an even greater margin than Sarkozy would (according to the most recent poll that asked the question, on Feb. 27).

  • But Bayrou has been coming in third place in all the polls (except the Mar. 9 poll, where he was tied with Royal at 23%). Of course there's the margin of error and all that. But chances are he won't make it to the second round, even though he would beat either of the other two main candidates if he got there.

Making some simplifying assumptions -- all Le Pen voters support the most right-wing candidate, and all "other" voters support the most left-wing candidate (this makes sense because they're all communists or greens, except for a 1% conservative traditionalist candidate) -- and putting these together with the second-round poll results from Feb. 27, I conclude that Bayrou is the second choice of 75% of French voters.

This is why Bayrou only got 17% in the Feb. 27 first-round poll (to Sarkozy's 31 and Royal's 25) but would still beat Sarkozy 54-46 and Royal 55-45. But under a runoff system (or a rank-order voting system, which is similar in practice to what the French are doing here), someone who's everyone's second choice gets eliminated early on. But any other system probably has even worse pathologies.

Moral: You can't win!

For previous posts of mine on France and the French elections, see here, here, here, and here. Note my retraction here. Note also that Bayrou said, back in 2002, when he refused to have his party, the UDF, be assimilated into the new umbrella conservative party, the UMP: "I won't be phagocyted or digested by anyone." (Said a gay friend of mine: "O.K.! I won't cite him!")

What's Wrong with the Ninth Circuit?

Advocates of splitting the U.S. Court of Appeals for the Ninth Circuit often point to the court's high reversal rate by the Supreme Court. An editorial in Monday's W$J, for instance, noted that the Ninth is 0-8 so far this Supreme Court term. Tallying the Justices' votes in cases reviewing Ninth Circuit decisions, the justices have gone against the Ninth 67-5.

Accepting that the Ninth Circuit appears to be out of step with the Supreme Court, the interesting question for researchers is why? Some think it is a partial consequence of the court being too big. With so many judges, and without full court en bancs, the argument goes, the Ninth is less able to maintain a coherent jurisprudence. Others argue it's just a question of ideology, and that the Ninth Circuit has more than its share of independent-minded judicial ideologues. Which, if either, of these is true? And would splitting the Ninth do anything about it?

Via Sara Benesh on the Empirical Legal Studies blog comes a study by Kevin Scott of the Congressional Research Service that suggests both size and ideology play a role in the Ninth's reversal rate.

This paper sorts out the cause of the Ninth Circuit’s reversal rate by looking at the Court’s relationship with the Supreme Court over the past twenty years. By looking at merits reversals, including unanimous reversals, and attempting a broader assessment of the Ninth Circuit’s status vis-à-vis the other circuits and the Supreme Court, I ultimately argue that both size (though indirectly) and ideological orientation influence the Ninth Circuit’s high reversal rate. These findings have broad implications for how we model the behavior of court of appeals judges and their relationship with the Supreme Court.
Scott's ultimate conclusion, however, is that a proposed split "would likely not have the effect of reducing the frequency with which the two courts would be reversed by the Supreme Court. "If that is the case, the case for splitting the Ninth will have to be made on other grounds.

I remain somewhat inclined to favor splitting the Ninth on size grounds alone. As an outsider, the size of the Court seems particularly unwieldy, and I have knee-jerk reaction against less-then-full-court en banc panels. One problem with division proposals is that it is difficult (if not impossible) to address the size issue without splitting up California into more than one circuit. In any event, for those interested in this issue, Scott's paper provides some interesting food for thought.

Trying to Sequester Carbon:

Today's New York Times has an article about a planned carbon sequestration demonstration by American Electric Power. The aim is to demonstrate a technology that can be used to remove carbon dioxide from coal emissions so that the CO2 can be buried in the ground. According to the story, the project "will use a new process — so far tested only at laboratory scale — that uses chilled ammonia to absorb the gas for collection. The process was developed by Alstom, a major manufacturer of generating equipment, and aims to reduce the amount of energy required to capture the carbon dioxide."

The primary question the project will answer is not whether it is possible to remove carbon from coal emissions at a reasonable cost. The primary cost from this form of carbon sequestration comes from the energy required for the process itself. Reports the Times, "Some experts have estimated that nearly a third of a power plant’s energy output might be needed to pull carbon dioxide from the waste stream. Alstom hopes to hold it to 15 percent." If successful, the sequestration technology could find wide use if, as some expect, Congress adopts some sort of binding limits on carbon emissions in the next two years.

Truth in Advertising, or a Disgruntled Employee Filling Out the Form?

From the Australian Lawyers' Weekly, a response from the law firm gadens lawyers (three-dimensional but capital-letter-challenged) to a questionnaire about the firm's planned attendance at a yearly job fair:

Who from your firm will be attending?

A representative selection of some of our finest and most earnest young solicitors may attend, subject to their daily billing targets. If the stall is unattended, it’s because we’re all doing something more important.

Will they be making any presentations or giving talks?

Unlikely. They’re quite shy and very focused on their chargeable hours. We will be raffling off an interview every hour as usual, but this should be no cause for amusement or conversation.

What items/information will you have for graduates to take away?

We will be giving away a manila folder containing a sample time sheet, a list of after-hours dinner delivery services in the CBD, a guide to achieving optimum personal billing statistics during your summer clerkship and a bus ticket.

What are the three most important qualities you are looking for in a graduate employee?

A law degree; willingness to work till it hurts, then keep working; and the personality and personal values of a federal cabinet minister.

How many positions will you have available for graduates this year?

We prefer to hire in bulk to account for natural attrition and burnout. This year we are taking 150 graduates in the hope of there being six or seven of them left standing by February 2008. This is more than previously because we’ve been losing them faster than anticipated. Young people today just seem to be soft.

Thanks to Dylan Kissane for the pointer.

M.T. Cicero:

Just ran across the title of an edition of Cicero published by Benjamin Franklin, M.T. Cicero's Cato Major. I imagine it was a common way of writing Roman names back then, but it sounded more modern to me than either 18th century or classical, and made me smile. I could just imagine: "Hey, M.T., how are things?" "Just fine, J.C., how are you and Cn.P. getting along?"

As I understand it, the Romans abbreviated promiscuously in various inscriptions, and especially regularly abbreviated the first name; but my sense is that the norm was not to abbreviate the family name except where space was at a special premium, because, well, it's the family name, damn it. But I guess I should take it up with old B.F. himself.

And, yes, I know (or at least think I know) it should be C.I. (even though when composing this post I almost screwed it up by first writing G.J. and then C.J.), but J.C. sounded funnier.


Wednesday, March 14, 2007

Radio Interview on Kelo and Eminent Domain Reform:

My interview on the Kelo decision and eminent domain reform, with the Virginia Public Radio Program "With Good Reason" will be airing March 17-23. If you live in Virginia or the Washington, DC area, you can tune it at these stations and times over the course of the week. With Good Reason will also be posting a streaming archive of the interview on its website after it airs. So all of you who don't live in the area won't be deprived:).

Would Repealing D.C. Gun Ban Prevent Supreme Court Review / En Banc Review in Second Amendment Case?

Reader Michael Brock writes:

A new bill was just introduced in the House, "To restore Second Amendment rights in the District of Columbia"

This bill would effectively repeal the laws that were struck down in Parker. If this bill passes, would that have any negative influence on the cert. worthiness of Parker?

You bet. I doubt the bill will get enacted. But if it is, and if the D.C. gun ban is mostly repealed (something the bill seems to try to do, though I haven't checked all the statutory cross-references to make sure it succeeds), that would make the declaratory and injunctive challenge at the heart of the Parker case moot, and would prevent en banc review and Supreme Court review.

Unless I'm mistaken, it would also lead to the D.C. Circuit panel decision's being vacated -- and thus losing its precedential effect -- under the so-called Munsingwear doctrine. "The established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss."

Congratulations, Sasha!

From yesterday's Second Circuit access to DNA testing decision:

Today, with the advance of forensic DNA technology, our desire to join Learned Hand’s optimism has given way to the reality of wrongful convictions -- a reality which challenges us to reaffirm our commitment to the principle that the innocent should be freed.[fn3]

[fn3] See, e.g., In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring) (“[I]t is far worse to convict an innocent man than to let a guilty man go free.”); WILLIAM BLACKSTONE, 4 COMMENTARIES *352 (“[B]etter that ten guilty persons escape, than that one innocent suffer.”); see generally Alexander Volokh, n Guilty Men, 146 U. PA. L. REV. 173 (1997). Notably, DNA testing -- with its capacity to “exonerat[e] defendants (or those wrongly convicted) to a practical certainty,” Harvey II, 285 F.3d at 305 n.1 (Luttig, J., respecting the denial of rehearing en banc), and to identify the guilty -- promises to render, in some cases, both sides of Blackstone’s maxim.

I haven't read the opinion, and thus can't say whether I endorse its reasoning. But I fully endorse the practice of citing to the Volokh brothers whenever possible.

"The Freshest Advices, Foreign and Domestic":

Not a line from Borat -- rather, it was the motto of The Providence Gazette and Country Journal, at least as of Aug. 9, 1777. Maybe we should adopt it as our motto, too.

Ninth Circuit Rules in Raich Case: In a ruling issued this morning, the Ninth Circuit rejected our Due Process Clause and medical necessity claims. The opinion is here. I will have more comment on this later, but there are three hopeful aspects of its opinion. First, the panel went out of its way to suggest that Angel appears to qualify for a medical necessity defense should she be prosecuted criminally.
Although Raich appears to satisfy the factual predicate for a necessity defense, it is not clear whether the Supreme Court’s decision in United States v. Oakland Cannabis Buyers’ Cooperative forecloses a necessity defense to a prosecution of a seriously ill defendant under the Controlled Substances Act. 532 U.S. 483, 484 n.7 (2001). Similarly, whether the Controlled Substances Act encompasses a legislative “determination of values,” id. at 491, that would preclude a necessity defense is also an unanswered question. These are difficult issues, and in light of our conclusion below that Raich’s necessity claim is best resolved within the context of a specific prosecution under the Controlled Substances Act, where the issue would be fully joined, we do not attempt to answer them here.
Second, it maintained that if more states were to recognize a right to use cannabis for medical purposes, the Due Process Clause right asserted in this case (as it narrowly defines it) could be recognized as fundamental under the "emerging awareness" approach in Lawrence:
We agree with Raich that medical and conventional wisdom that recognizes the use of marijuana for medical purposes is gaining traction in the law as well. But that legal recognition has not yet reached the point where a conclusion can be drawn that the right to use medical marijuana is “fundamental” and “implicit in the concept of ordered liberty.” See Glucksberg, 521 U.S. at 720-21 (citations omitted). For the time being, this issue remains in “the arena of public debate and legislative action.” Id. at 720; see also Gonzales v. Raich, 125 S. Ct. at 2215.

As stated above, Justice Anthony Kennedy told us that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” Lawrence, 539 U.S. at 579. For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, considering that during the last ten years eleven states have legalized the use of medical marijuana, that day may be upon us sooner than expected. Until that day arrives, federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.
Finally, the Court did not rule on our statutory interpretation claim because it had been raised too late in the procedings and was therefore waived.

The first two of these rulings by the Ninth Circuit were far more than an otherwise losing party had any right to expect.

Update: I will be discussing today's decision with Al Rantel tonight on KABC Talk Radio 780AM in Los Angeles at 9:05ET/6:05PT 11:05PM ET/8:05PM PT. You can listen on-line here.

Related Posts (on one page):

  1. Dorf on Raich:
  2. Raich and Scrutiny Land:
  3. Ninth Circuit Rules in Raich Case:
"I Wish I Had Your Comments Before Writing": In a recent e-mail sent to his Justice Jackson e-mail list, Professor John Barrett recounts an interesting exchange between Justice Jackson and his former co-worker Bernard Meltzer, by then a law professor at the University of Chicago. Meltzer, who recently passed away at the age of 92, had written an article criticizing Justice Jackson's opinion in Stein v. New York. Meltzer sent Justice Jackson a reprint, and Justice Jackson replied in a letter:
Dear Bernie,
  I have just read your comment on Stein v New York for
the writing of which it was my ill luck to be assigned. It seemed to
me one of those that can have no fully satisfactory answer. I wish I
had your comments before writing. But I think you have done a
very fair, instructive and constructive job on the case.
  Thanks for the reprint. With my best wishes
  Robert Jackson
  Pretty cool. Incidentally, I recommend Barrett's list to those interested in Justice Jackson. You can see a partial set of archives here, and you can sign up for free by e-mailing Professor Barrett at barrettj at
Hecklers' (Terrorists'?)Veto at University of Leeds?:

From Scholars for Peace in the Middle East:

On Wednesday morning March 14, just hours before an invited academic talk and two-day academic workshop series by SPME Board member, Matthias Kuentzel, German scholar, the University of Leeds cancelled this invited, university- sponsored, two-day workshop on "Hitler's Legacy: Islamic Antisemitism in the Middle East."

Dr Kuentzel's talk is part of a series of scholars' and artists' talks at the German Department. The series is supported by a grant form the School of Modern Languages, who did not raise any issues during the grant application process. The University cited security reasons for cancelling the workshop based on threatening emails it received to the Office of Vice Chancellor.

Dr. Kuentzel is a research assistant of one the world's leading institute in the research of antisemitism, the Vidal Sassoon International Center for the Study of Antisemitism (SICSA) at the Hebrew University of Jerusalem and a member of the board of directors of Scholars for Peace in the Middle East, an academic society with about 0ver 9000 faculty throughout the world. who is a Research Associate at the Vidal Sasson Institute on Anti-Semitism of the Hebrew University in Jerusalem. The series of events had been well publicised for several weeks.

Members of SPME and other academics of good will from around the world are being asked to immediately write to the Vice Chancellor’s Office at 0113-3434030 or e-mail to demand that this event be allowed to continue with appropriate security.

Related Posts (on one page):

  1. More on Censorship at the University of Leeds:
  2. Hecklers' (Terrorists'?)Veto at University of Leeds?:
New book on gay marriage:

David Blankenhorn, a self-described liberal Democrat, comes out forcefully against recognizing same-sex marriage in a book being released today. Blankenhorn heads a think-tank called the Institute for American Values, and has written much on the effects of fatherlessness in families.

I haven't read the book yet, but Blankenhorn is as smart and articulate as they come in the ongoing national debate over gay marriage. His book should be well worth a look from anyone who follows the issue closely.

Deconstructionism and conservative activism:

The Critical Legal Studies movement is heavily influenced by the deconstruction movement. Jack Balkin explains how deconstruction as a literary and philosophical tool migrated into the law, in his 2005 Cardozo Law Review article Deconstruction's Legal Career:

Deconstruction began as a series of techniques invented by Jacques Derrida, Paul de Man, and others to analyze literary and philosophical texts. These techniques, in turn, were connected to larger philosophical claims about the nature of language and meaning. . . .

When deconstruction moved from literature departments to the legal academy, it was modified further. Legal academics on the left, particularly feminists and members of the Critical Legal Studies (CLS) movement, saw deconstruction as a way of challenging legal orthodoxies. They assumed pretty much without question that they could adapt deconstructive techniques to critique unjust legal doctrines and advocate more just arrangements. Once again, this assumption is rather puzzling. It is true that many literary deconstructionists identified with the political left. But they were using deconstruction to show the impenetrability, mutability, and conceptual incoherence of all texts, not simply the texts produced by political conservatives.

So the indeterminacy of texts is a double-edged sword, which ultimately can be wielded by conservatives against cherished liberal principles. My friend and colleague Mike Seidman elaborates, in his excellent recent article Critical Constitutionalism Now (now published in the Fordham Law Review):

[The Critical Legal Studies movement's] indeterminacy claim was that standard legal materials -- statutes, constitutions, and precedent -- often failed to dictate a single outcome. Critical scholars demonstrated over and over again that legal rules and conventional methods of interpretation could, in the right hands, produce wildly different results. Some scholars went beyond this claim to assert that not just legal materials, but also underlying ideologies, were indeterminate . . . .

Events of the last six years provide a stunning confirmation of the claims critical constitutionalists made during the last century . . . . In a wide variety of contexts -- from the legal defense of an aggressive war, to the assertion of constitutional power to hold American citizens indefinitely without legal process, to the claim that the president has inherent constitutional power to utilize torture and warrantless wiretapping, to assertions that the filibuster is unconstitutional and that mid-decade gerrymandering of congressional districts is constitutionally permissible, to the unprecedented search of the office of an incumbent congressman -- the Bush administration and its allies have used legal rhetoric to hold and consolidate power. . . .

Although they can take small comfort from this fact, this complex interaction of legal consciousness with politics vindicates the key claims of critical constitutionalists. It turns out that constitutional principle is sufficiently elastic easily to accommodate the Bush revolution . . . .

And, of course, critics of this "Bush revolution" (rightly or wrongly) pile a lot of blame on one particular Executive Branch actor: John Yoo.

Perhaps this view (that the indeterminacy critique of constitutionalism can easily cut in a conservative direction), together with its associated warning (that progressives who, in the name of indeterminacy, try to undermine rule-of-law norms, will find this biting them back in the end), deserves a name. I suggest: the Yoo-De Man thesis.


Tuesday, March 13, 2007

French Court Ruling on Gay Marriage: If you believe that foreign law shapes the meaning of the U.S. Constitution, then the chances that the U.S. Constitution guarantees a federal constitutional right to same-sex marriage just got a lot lower. (LvHB)
The Muffin Joke:

Redheadlaw7 and I are with Jack: It's a very funny joke. The New York Times doesn't get it. I blame liberal media bias.

Wonders of the world:

The Washington Post has a cool photo gallery of candidates for the New Seven Wonders of the World. Take a look at the pictures, but don't pay that much attention to the descriptions.

For instance, apparently the "ancient city" of Machu Picchu was "founded by Yale University professor Hiram Bingham in 1911." That's pretty ancient! [UPDATE: This has now been corrected to "found."]

More significantly, Istanbul's Hagia Sophia is "a church that was first built in 537 B.C. as a Mosque when the city fell to the Ottomans." How many mistakes are there in that one line?

  • It was once a church, and it was once a mosque (though it was a mosque only after it was a church, not before), but now it's just a museum.

  • In fact, its construction was more like A.D. 537.

  • Not much chance of its having been built as a mosque even in A.D. 537 (to say nothing of 537 B.C.), since Islam wouldn't even exist for about another century after that.

  • And the city didn't fall to the Ottomans until about 900 years after the construction of the church (and the Ottomans arguably didn't even really exist as "Ottomans" until around 1300).

Anyway, pretty picture!

Why Haven't We Written About the US Attorneys' Story?: In an unrelated comment thread, anonymous commenter "CrazyTrain" writes:
I'd like to see a study on why the most read legal blog on the internet has not once mentioned the US Attorneys' scandal. This blog even includes ex AUSA's. Amazing. I used to think you guys were somewhat nonpartisan but now you guys just look like hacks. No one here is "obligated" to write about any topic of course, but the failure to write about a topic is fair game to judge one's views, and the fact that not one post here has been devoted to this very important issue in the legal community evidences the hackery of the writers here.
  First, I would like to clear up something: Of course we are all political hacks! Our secret trick is that we alternate which side to spin: sometimes we are political hacks for the right, and sometimes we are political hacks for the left. Naive readers occassionally mistake this for principle, but I trust the more sophisticated see it as the randomized hackery it truly is. In any event, a great rule of thumb is that our silence means that we are secretly conspiring with your enemies to keep stories out of the public eye. Remember, if a legal event isn't being blogged about at the Volokh Conspiracy, it just didn't happen.

  On a more serious note, I haven't written about the U.S. Attorney's story because I'm having a hard time figuring out just how big a deal it is. Parts of it are obviously very troubling: I was very disturbed to learn of the Domenici calls, for example. More broadly, I have longrunning objections to the extent to which DOJ is under White House control, objections that this story helps bring to the fore (although my objections are based on my views of sound policy, not on law).

  At the same time, several parts of the story seem overblown. U.S. Attorneys are political appointees who serve at the pleasure of the President, and the press seems to overlook that in a lot of its reporting. Also, I know one or two of the Administration figures named in some of the stories, and based on my knowledge of them and their character (although no secret details of the story — I have not spoken with anyone about it) I have a feeling that they're getting a bad rap.

  So in the end I don't quite know where I come out based on what we know. Without knowing where I come out, I don't feel I have much helpful to add. I realize that this may mean I am missing a big story. Perhaps this will prove to be a simply huge scandal, and in time it will seem odd that we weren't all blogging about it. But I don't know what I'm supposed to do when I read a story and I'm not sure what to make of it.

  In any event, readers such as CrazyTrain who are sure are about this story are welcome to explain why (politely, of course) in the comment thread.
The Death of Captain America:

Jonathan Last reports in the WSJ.

UPDATE: USC's Mary Dudziak has more on the Legal History Blog.

Presentation on "Federalism and Political Ignorance" at UC Santa Cruz:

This Friday, March 16, I will be speaking on "Federalism, Political Ignorance, and Voting With Your Feet" at a conference on Federalism and Decentralization organized by the UC Santa Cruz Economics Department. My presentation will run from 2:30 PM to 3:30 in Building E-2, Room 499 on the Santa Cruz campus. Perhaps of greater interest will be the very next presentation (at 4 PM), by Stanford's Barry Weingast - one of the most influential federalism scholars in the world today. Prof. Weingast will be speaking on "Second Generation Models of Federalism," and I'm willing to bet that his talk will be more than worth the price of admission. My talk is his undercard or opening band, so to speak.

When I was an undergraduate, UC Santa Cruz had the reputation of being the country's biggest party school. Perhaps I'll be able to find out if UCSC lives up to its reputation during my stay there:).

UPDATE: Several commenters suggest that I may have confused UCSC's reputation as a party school with that of UC Santa Barbara. That is quite possible, though I distinctly remember hearing California friends talk about UCSC as a major party school back when I was in college. However, if I have indeed mischaracterized UCSC, I apologize. Of course, it's not clear whether the misrepresentation hurts UCSC's rep more than it helps it or vice versa. A reputation as a party school may attract at least as many students as it repels.

UPDATE #2: In answer to a commenter's question: No there is no real price of admission. You can come hear the presentations at the conference for free, though voluntary donations to support the needy law professors and social scientists are more than welcome:).

Pet Peeves about Law Review Editing:

Legal academics have lots of complaints about the nature and quality of law review editing. At Concurring Opinions, Daniel Solove shares his two biggest pet peeves — unnecessary parentheticals and excessive footnoting — and suggests that "many law review editors have no idea just how widely professors view some of their editing practices as silly and bothersome."

If law review editors were to jettison the two pet peeves I mention above, it would eliminate the bulk of my gripes. My sense is that these two pet peeves are among the most loathed editing practices by law reviews. So all you law review editors out there — especially those at the journals who write the Bluebook — please put a swift end to the parenthetical and the needless citation. Law professors around the country will rejoice. And you'll be happier too, as it will make your lives easier as well. It's a win-win situation for everyone!

Like Solove, I've had both positive and negative editing experiences with student-edited law reviews. In the best cases, student editors provide useful feedback that improve an article's clarity and persuasiveness, and help ensure it is properly cited. In the worst cases, student editors forget that the author knows more about the subject than they do, introduce errors into the text, and apply Bluebooking rules in an absurdly rigid fashion. In my experience, some law review editors are so obsessed with following the "rules" that they abandon common sense. In most cases, I have had little problem explaining why I would not accept certain proposed edits or additions, but sometimes I get a surprising amount of resistance. My advice to editors (as a former Articles Editor myself) would be this: Apply the rules with common sense, and remember they are a means to an end, not an end in themselves.

UPDATE: As the comments indicate, some law review editors have pet peeves about academic authors. Based on my experience as an Articles Editor, and from advising our law review now and then on specific articles, some of these pet peeves are certainly justified. I also recommend these pointers from a current law review editor in the comments.

Judge Bars GM Alfalfa Sales:

Yesterday the U.S. District Court for the Northern District of California overturned the USDA's 2005 decision to deregulate "Roundup Ready" alfalfa, barred new sales of seed, and barred any additional planting of already-bought seeds effective March 30. According to the court, the Agriculture Department had failed to conduct an environmental impact statement (EIS) as required under the National Environmental Policy Act (NEPA).

The court's decision does not mean that plaintiffs demonstrated "Roundup Ready" alfalfa necessarily poses any particular environmental threat. All that was required for plaintiffs to prevail under NEPA is that there was a potentially significant environmental impact that the agency failed to consider. Nor does the decision mean that the risks posed by "Roundup Ready" alfalfa outweigh its environmental and consumer benefits. NEPA simply required that the USDA adequately examine this question before making its decision.

The judge will consider whether to make this injunction permanent in April. In the meantime, news coverage of the decision can be found here. Monsanto's press release is here.

Perhaps There Is Hope Even for Law Professors:

"It is glorious to serve one's country by deeds; even to serve her by words is a thing not to be despised." (Sallust, The War with Catiline, though he was speaking specifically of historians, such as himself.)

Problems with CNBC's Stock Trading Contest and its corporate blog.—

CNBC, the financial channel, is running a stock trading contest with a million dollars as the prize. It begins with a 10-week contest with over 250,000 contestants so far, followed by a 2-week finals period with 20 finalists, who start anew with no carry-over of profits from the 10-week “regular season.” Trades in a fictional investment portfolio of $1,000,000 may be logged online at any time, though the fictional trades are entered only at the closing price at the end of every trading day. During the regular season, each weekly percentage winner receives a $10,000 prize and a place in the finals. The other 10 places in the finals go to the top 10 leaders for the overall regular season. The winner of the 2-week finals wins $1,000,000 payable as an annuity. If you are interested, you may still enter.

Unfortunately, CNBC’s site had major problems on Thursday, with trading staggering slow and often failing in the morning and completely impossible for much of Thursday afternoon. Friday, there was a total meltdown: for at least the last three hours of trading on Friday, the site was up, but the portfolios were empty, which made it impossible to enter Buy or Sell orders to be executed on market close on Friday. One can see some of the frustration from players here, here, here, here, here, and particularly here.

On both Thursday and Friday, customer service responded with form letters, and on Friday afternoon, responded with false information that the site was fixed and working. As for liability for Thursday’s problems and Friday’s meltdown, the contest rules contain not only a general waiver, but a more specific refusal to guarantee access.

At CNBC’s Friday evening wrap-up show covering the first week of the contest, if the site’s meltdown was mentioned, I missed it. Now this week Mark Koba is blogging on the contest at CNBC. Comments are not allowed, and even to read the blog requires registration.

Corporate bloggers face a particularly tough challenge: to appear pretty honest while usually spinning the facts in favor of the corporate entity who pays one’s salary. One possible use of such a CNBC blog would be as a lightening rod for criticism, diverting harmful power surges away from the network’s shows, which can then pretend that there are no problems. And, of course, a corporate blogger also has access to people in the loop whom other mortals do not, which can be great for getting answers to nagging questions.

So far on Monday, the first day of the blog, Koba has filed 12 blog posts. None mentions the trading problems last week. In two posts, Koba did address another common complaint, that the first week’s winner had multiple accounts—over 800 of them, in fact.

The First Openly Atheist Congressman:

Representative Pete Stark (D-CA) has publicly confirmed that he is an atheist, thereby become the first openly atheist member of Congress in American history (hat tip: Radley Balko).

However welcome, Stark's announcement is not much of a counterexample to my argument that atheists are severely discriminated against in the political arena (see here and here). Stark is a well-entrenched incumbent in a heavily Democratic district and is probably nearing the end of his career (he is 75 years old). He therefore is running a much smaller political risk than would most other politicians if they made a similar statement. Although Stark's announcement has some symbolic value, this small step for an atheist is also a pretty small step for atheist-kind.


Monday, March 12, 2007

What Kinds of Arms do We Have a Right to Bear? A Question about the Individual Rights Theory of the Second Amendment:

Like most of the other VC bloggers, I am sympathetic to the idea that the Second Amendment protects an individual right to bear arms, not just a "right" limited to members of state-controlled "militias." The DC Circuit's recent decision in Parker increases the likelihood that that view will soon triumph in the Supreme Court. However, this possibility raises some important questions about the scope of the individual right in question. In particular, what kinds of "arms" do we have a right to bear?

As a textual matter, the "the right to keep and bear arms" seems to apply to all types of weapons, without exception. This approach, however, would give citizens the right to own powerful military weapons, perhaps even including nuclear bombs and other WMDs. One possible textual limitation is the idea that the right is limited to those that one person can "keep and bear," thereby excluding a great deal of heavy military equipment, such as tanks or artillery pieces. However, the right would still apply to such potent handheld arms as machine guns, RPGs, shoulder-launched surface to air missiles (e.g. - the Stinger SAM), and grenades. It is far from clear to me that largely unrestricted private ownership of such weapons is desirable.

Questions such as these are usually met with the response that the Second Amendment will still permit "reasonable" regulations. This, however, is far from satisfactory in light of the fact that people of differing ideologies have widely divergent conceptions of what counts as reasonable. Moreover, the implicit assumption that regulations banning private ownership of RPGs and Stingers are "reasonable" is in tension with the theory that the principal purpose of the Second Amendment is to give citizens the ability to use their weapons to resist a tyrannical government. This "insurrectionary theory" of the Second Amendment is arguably the most popular interpretation advanced by scholars sympathetic to individual rights view. Obviously, RPGs, handheld SAMs, and machine guns are likely to be far more effective in achieving this goal than mere handguns or hunting rifles. The insurrectionary theory of the Amendment is at odds with most arguments claiming that the Amendment only protects the right to own weapons that don't pose grave risks. After all, the most dangerous weapons are often the ones that can most effectively be utilized by a resistance movement opposing the government.

I come to improve the individual rights view of the Second Amendment, not to bury it. However, advocates of the theory will need to develop a more compelling account of the scope of the individual right in question. That need will be even more urgent if the Supreme Court embraces the individual right theory, as it may well soon do.

Related Posts (on one page):

  1. What Kinds of Arms do We Have a Right to Bear? A Question about the Individual Rights Theory of the Second Amendment:
  2. Saul Cornell on Parker:
Saul Cornell on Parker:

Ohio State historian Saul Cornell, director of the Second Amendment Research Center, offers a very negative assessment of Judge Silberman's majority opinion in Parker v. District of Columbia on Balkinization. According to Professor Cornell, the opinion "rests on a combination of bad law and even worse history." This may all be true, but Cornell's post fails to make the case. Cornell's post is long on rhetoric and conclusory allegations, but rather short on evidence to support his central claim.

The best example is Professor Cornell's discussion of the court's treatment of the 1939 Supreme Court decision in United States vs. Miller. "It is rather shocking to see a Federal Appeals Court misread established precedent in such a politically distorted fashion," writes Professor Cornell. According to Professor Cornell, the court adopts a "revisionist reading" of Miller that dismisses the contemporary understanding of the decision which embraced "the overwhelmingly scholarly and legal consensus of the day that the Second Amendment was about the militia." This may be a fair characterization of the case, but this hardly suggests that the D.C. Circuit was wrong to conclude that the Second Amendment protects the right of an individual to own arms and keep them in a private residence.

The Miller opinion devotes substantial space to showing that the Second Amendment right is connected to the militia, but it does so to determine whether the weapon at issue — a sawed-off shotgun — was the sort of weapon that would be used by a militia. If so, the Court suggests, the defendant would have had the right to keep the weapon in his home. As the Court explained:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.
This interpretation is further supported by the Court's discussion of the significance of the word "militia" in the Second Amendment:
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
If members of the militia could not own their own arms, it would certainly be difficult to rely upon them to "appear bearing arms supplied by themselves." Thus, the question was not whether an individual — or, at least, a "physically capable" male — could own a gun, but whether the rather unconventional weapon at issue was "the kind in common use at the time" that a member of the militia would be expected to own. In sum, Miller's extensive discussion of the militia is fully consonant with the conclusion that the Second Amendment protects the rights of individuals to own guns.

Something else that is curious about Professor Cornell's discussion is his attribution of a quote to Justice McReynolds that is not in the opinion. Professor Cornell writes:

Judge McReynolds prefaced the decision by noting that "We construe the amendment as having relation to the military service and we are unable to say that a sawed-off shotgun has relation to the militia."
Justice McReynolds may well have said this — perhaps when announcing the opinion — but the quote does not appear in the text of the opinion — at least not that which is available on Westlaw. Perhaps more importantly, this quote, like the rest of Miller, is fully consistent with the interpretation I've sketched above. In other words, it does not undermine the conclusion that the Second Amendment protects the rights of at least some individuals (those in the militia, organized and unorganized) to own at least some guns (those well-suited to military service). In other words, it does nothing to undermine a qualified individual rights interpretation of the Amendment.

It should also go without saying that merely establishing the existence of a right, such as to gun ownership, leaves open how that right should be defined and when it may be limited by government regulation. Thus, this interpretation does not necessarily lead to the invalidation of reasonable gun control measures that do not infringe upon the Amendment's central purpose.

Professor Cornell has other criticisms of the Parker opinion, such as its reliance upon Anti-Federalist writings in Pennsylvania, but they seem less significant to the outcome of the case. How the D.C. Circuit handled relevant Supreme Court precedent seems more important than its assessment of 18th Century texts. I also suspect that some of the sources Professor Cornell claims would contradict the D.C. Circuit's opinion, such as the writings of Justice Joseph Story, are more equivocal than his post would suggest.

The length of this post notwithstanding, I don't claim to be a Second Amendment scholar — I devote only one day to it in my ConLaw class — but I am unconvinced by Professor Cornell's post, particularly given his resort to sweeping statements about what is no more than ambiguously supportive evidence. I readily admit that the interpretation of Miller sketched above is not the only plausible reading of the decision, but I do not see much of anything in the opinion that wholly repudiates this sort of qualified individual rights view. If, as Professor Cornell maintains, this sort of interpretation amounts to an abuse of precedent lacking any historical foundation, his Balkinization post does not make the case.

[ASIDE: I took a class with Professor Cornell at the University of Pennsylvania when he was a graduate student and I was in high school. The class was on the political and social thought of the American colonial and revolutionary periods. It was an intellectual feast and helped spark my interest in academia. It was also my first sustained exposure to classical liberal thought — something from which I've clearly never recovered. On all these counts, I am grateful.]

UPDATE: A reader writes to confirm that the Justice McReynolds quote above is from the New York Times story about the Miller opinion when it was issued. Apparently it is a direct quote (or at least a paraphrase) from what Justice McReynolds said when announcing the opinion. This does not change the substance of my post, however, as the quote is fully consistent with the interpretation I outline above.

SECOND UPDATE: Thanks to my law librarian, I have obtained a copy of the New York Times story from May 16, 1939 on the Miller decision in which the aforementioned Justice McReynolds quote appears. As I suspected, the quote cam from Justice McReynolds' announcement of the decision (which he "drawled from the bench," the NYT reports). This story, like the text of the Miller decision itself does not support Professor Cornell's case, however. Instead, it reinforces the understanding that the Second Amendment protects an individual right to own those weapons that have a relationship to service in the militia. Only because the Court concluded that a sawed-off shotgun lacked such a relationship did it overturn the lower court decision quashing the indictment of two individuals for taking such a weapon across state lines without registering it.

THIRD UPDATE: Several commenters note the Second Amendment Research Center is funded by the Joyce Foundation, and suggest this is relevant because Joyce Foundation is a prominent funder of gun control efforts. This may be true, but I do not think it is relevant to the truth or falsity of Professor Cornell's arguments. As I have argued before, the merits of an argument can and should be evaluated independently of any funding source. Sure, following the money trail can, like other ad hominem evaluations, serve as a useful heuristic, but it says nothing about the ultimate validity of the argument itself.

Recruiting Costs and Supreme Court Clerk Bonuses: My co-blogger David B. mentions Dahlia Lithwick's article on Supreme Court clerkship signing bonuses, and I just wanted to add my two cents on the question. In particular, I think such bonuses may look a little less extraordinary when placed in the context of the already high costs of attorney recruiting.

  Here's my thinking. Major law firms pay extraordinary amounts of money to recruit associate talent. Consider the lavish summer associate programs most firms run every year. A firm of 300 lawyers might have 40 summer associates, and the cost of a single summer associate — including salary, hiring costs, overhead, expensive lunches, opera tickets, and lost billables from associates — probably runs in the neighborhood of at least $75,000. A 300-lawyer firm that has 40 summer associates therefore pays in the neighborhood of three million dollars for its summer program.

  What do law firms get for their three million dollars? Not much billable work, as summer associates have no idea what they're doing. And firms don't really get the opportunity to screen candidates, as most firms give offers to all or almost all summer associates. But they do it because it gives them a leg up on attracting lawyers after graduation: law students who enjoy their summer experience at a firm are relatively likely to sign on, and firms need new associates. So the firms pay out $75,000 per summer associate to try to persuade students to sign on.

  At the kinds of firms that attract Supreme Court clerks, however, these efforts usually don't pan out quite as well as at most other firms. The very top students at the very top schools have a lot of options, and they go back to their summer firms less often than at other places. Some go into government, others public interest law, and others may try for top-flight boutique firms that most candidates didn't know about when they were fall 2Ls. All of which means that the price of recruiting the very best students is unusually high; if only 40% of these students come back to the firm where they summered, then the effective price of recruiting a top law student through summer programs goes up to the neighborhood of $200,000.

  When you consider these numbers, I think a $200,000 Supreme Court clerkship bonus begins to seem less out of place. Clerks are usually in lots of debt, and the up-front, all-at-once cash actually does make a considerable difference to them. If the firm successfully recruits a clerk, it gets a very strong lawyer without having to pay the candidate through the summer program. And hiring Supreme Court clerks likely increases general law student interest and yield rates: students that are in the running for jobs at the firms that attract clerks are likely to know about which clerks are going to what firms. As a result, successfully recruiting clerks helps the firm attract other candidates, which ultimately leads to better lawyers at a lower average cost of recruiting those lawyers.

  Anyway, that's my best guess of how it looks to the kind of firms that are making these decisions. Am I way off, either as to the costs of the summer programs or how firms view the cost of recruiting more generally? If so, I hope you'll (politely) let me know in the comment thread.

  UPDATE: One more thought. Lithwick states that Supreme Court clerks at firms have an "unofficial" two year rule, and that many leave the firm after two years. FWIW, I haven't heard of this or seen any evidence of this. My anecdotal experience is that most fomer clerks stay at firms for more than two years at higher rates than most associates.
Rabkin to George Mason:

I'm very pleased to announce that Professor Jeremy Rabkin of Cornell University, an authority on international law (and the dangers of the imposition of international law on the United States), and author of, most recently, Law Without Nations? Why Constitutional Government Requires Sovereign States (Princeton University Press, 2005), has agreed to join the George Mason University School of Law faculty this Fall. To know Jeremy is to be extremely impressed with him.

Jeremy will join Eric Claeys, another great lateral hire, and a lineup of new assistant professors not as yet completely set.

Will the Supreme Court Take Parker?: Having mentioned in passing yesterday that I think the Supreme Court would take the Parker case, I wanted to respond briefly to Randy's very interesting post below that predicts the Court will not take the case.

  My thinking is that Parker is a good case for cert because there is a split on the constitutionality of the D.C. gun ban: the federal U.S. Court of Appeals for the D.C. Circuit struck it down in Parker, but the "local" D.C. Court of Appeals upheld it in Sandidge v. United States, 520 A.2d 1057 (D.C. 1987). Sandidge adopted a "collective rights" view of the Second Amendment, and under Sandidge the D.C. "local" court system has rejected all Second Amendment challenges to D.C.'s gun laws.

  I would imagine the conflict between Sandidge and Parker justifies Supreme Court review because no other court can resolve the conflict within the D.C Court system as to the constitutionality of the D.C. gun ban. (I'm assuming that the federal ruling doesn't somehow trump the "local" court ruling; this would be the case with federal versus state rulings on federal constiutional law questions, although I suppose it's possible that there is a difference with the unusual D.C. court system. Does anyone know?)

  Finally, Randy rightly mentions the possibility of en banc review in the D.C. Circuit. I don't know how likely it is, as I would imagine it depends on the internal dynamics within that court (a topic on which I remain rationally ignorant).

  UPDATE: In the comment thread, "Dr.Grishka" writes:
It would seem to me that the federal ruling "trumps" the DC Court of Appeals ruling. Anyone prosecuted under that statute can seek federal habeas relief on the grounds that he cannot be prosecuted under the federal habeas statute.
  I believe that's wrong, though. My understanding is that under the District of Columbia Court Reform and Criminal Procedure Act, Pub.L. No. 91-358 (1970), defendants convicted in the DC local court system cannot seek habeas relief in the DC federal court system. See Swain v. Pressley, 430 U.S. 372 (1977).
Supreme Court Salaries:


Well, Justice Anthony Kennedy is, for one. As he testified just last month before the Senate Judiciary Committee, "Something is wrong when a judge's law clerk, just one or two years out of law school, has a salary greater than that of the judge or justice he or she served the year before." The fact is that if the market is working to drive associate salaries higher and higher, the lack of a market is now ensuring that a first-year associate at a law firm who clerked on the court will earn more next year than Justice Antonin Scalia ($203,000), Special Prosecutor Patrick Fitzgerald ($140,300), or a well-paid public defender ($75,000). And whether or not those salary disparities make you weep in sympathy, it's hard to dispute the justices' claim that the opportunity cost of staying on the bench has become almost impossible to ignore.

Well, Justice Kennedy, here's an option for you: resign! I'm sure you can make a lot more than some young associate working for a firm specializing in Supreme Court litigation, or, for that matter, as an arbitrator. Indeed, I'd speculate that you could easily make 3 or 4 million dollars a year! What, you don't want to give up the power and prestige that comes with being a Supreme Court Justice? Than maybe there is NOTHING wrong with current salaries, at least at the Supreme Court level. Indeed, I'd guess that none of the the Justices would resign even if they had to take, say, a (n unconstitutional) 25% percent pay cut.

In fact, I'm not so sure it wouldn't be healthy if we had more rotation between the federal courts and private practice. Sure, the judges have life tenure, but does that necessarily mean we want all federal judges to necessarily consider it a job for life? Michael Luttig (who recently resigned to take a high-paying private sector job) was appointed to the Fourth Circuit in his late 30s. In an ideal world, should a Bush I appointee still be ruling on cases in 2040? On the other hand, we don't want judges ruling on cases with an eye toward pleasing future private sector employers. But the idea that an occasional 50-something federal judge like Luttig, having already served on the bench for a decade and a half, decides that there's something else he'd rather do with the rest of his life, doesn't especially disturb me. (In fact, I know a relatively young man who was approached about a federal judgeship, but declined the offer because he thought it meant he'd be morally obligated to stay in that job for decades, a commitment he didn't want to make. Would it really be so terrible if young, bright, ambitious, attorneys saw federal judging as a thing to do for a decade or two?)

UPDATE: Given that it's not a market-based salary, there's really no way of knowing whether federal judges are underpaid or overpaid based on their talents. My guess is that judges in expensive metropolitan areas are underpaid given the cost of living, and judges in more rural areas are in some cases overpaid, given the other perks of the job, including a very generous pension system. (This dynamic tends to be true of federal jobs more generally, despite some feeble attempts to adjust salaries to cost of living.) And of course, some federal judges are significantly more talented than others, raising the potential overpaid/underpaid gap in any given scenario. But it does strike me as odd for someone who has already accepted the job, and has no thoughts of resigning, to complain that he's grossly underpaid. Underpaid relative to one's value in the open market, sure; but underpaid relative to one's own calculus of the benefits of the non-pecuniary benefits of the job? Unlikely. Given that Justice Kennedy likely could easily command a $2 million salary, probably without working very hard, it seems clear that he values the non-salary benefits of being a Justice at well more than $1.8 million. I understand the dynamic quite well; until a few years ago, my salary was significantly less than first year associates in D.C. got paid, but I wouldn't have traded my job for theirs. To therefore claim that I was "underpaid" relative to these associates would have been a complete non-sequitor.

Law firm bonuses:

Check out Dahlia Lithwick's article on Supreme Court signing bonuses. However, do not check out the Washington Post version of the article, where my quote was left on the cutting room floor!

Symposium on Parker: National Review Online this morning has a symposium on Rearming: The D.C. gun ban gets overruled featuring John Eastman, Cam Edwards, Alan Gura (lead counsel for the plaintiffs), Dave Koppel, John Lott, Nelson Lund, Clark Neily (another attorney for the plaintiffs), and me. Here is my take on the likelihood the case will be reversed either en banc or by the Supreme Court:
When discussing with my wife the Supreme Court justices’ possible reaction to the Parker case, she observed that “it would be really exciting if they followed the Constitution.” Indeed! But I predict they won’t hear the case. True, the federal circuits now disagree about the original meaning of the Second Amendment. But there is no “circuit split” on the constitutionality of either the D.C. statute or a comparable federal statute banning all hand guns. The constitutionality of state statutes, such as have been upheld in other circuits, is complicated by the need to apply the Fourteenth Amendment, so those precedents are legally distinct. Further, because Solicitor General Paul Clement may well agree with the majority’s interpretation of the Second Amendment, as does the current Justice Department, he may oppose granting Cert. Given that even liberal justices have long ducked this issue in the past, it would be very risky for them to take it up now that the Court is more conservative, textualist, and originalist. Of course, the case could be reversed en banc by the D.C. Circuit, but again I doubt it. Unlike the protection of an unenumerated right that makes judicial conservatives nervous — like the right to life at issue in Abigail Alliance — the proposition that the Second Amendment protects an enumerated individual right applicable to the federal government unites originalist-inclined judges, whether conservative or libertarian. Moreover, that Judge Silberman is highly respected, his opinion is powerfully reasoned, and the dissenting opinion is astonishingly weak, all argue against an en banc review. But wouldn’t it be exciting if . . . ?
However, I have no confidence whatsoever in my powers of prediction. You can offer your own predictions, or reactions to the other views expressed in the symposium, here.
A Dissenting View on Parker:

SUNY Cortland political science professor Robert J. Spitzer thinks the Judge Silberman's opinion got the history of the Second Amendment and relevant precedents hopelessly wrong in Parker v. District of Columbia.

In its 58 page ruling, the two-member Parker majority contradicts nearly fifty other federal court rulings spanning seven decades, as well as four Supreme Court rulings, all of which support the straightforward proposition that the right to bear arms exists only in connection with citizen militia service. For all of the dissembling by gun rights advocates, the amendment’s full wording is pretty clear: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” As Supreme Court Chief Justice Warren Burger once noted, the amendment “must be read as though the word ‘because’ was the opening word.”

Given the VC commentary on Parker has been quite supportive, I thought readers might be interested in this contrasting view.

UPDATE: Here's another non-VC view from Michael Dorf.

Rapanos -- Once More, with Feeling:

I recently completed another short paper on Rapanos v. United States, in which a splintered Supreme Court adopted a narrow construction of federal regulatory jurisdiction under the Clean Water Act. Because I had already published a short paper on the decision, the title captures my approach to the piece. (It was also taken from a Buffy episode, which makes several cameos in the text of the piece.)

This paper was solicited by the Land Use Institute at Vermont Law School. It will be published in a forthcoming monograph collecting several essays on the Rapanos decision and its implications for wetland conservation and water pollution control. I believe all of the contributions will be available on the VLS website once the project is complete. In the meantime, a draft of my paper is available on SSRN, and I have reproduced the abstract below.

The Supreme Court's decision reaffirming limits on federal regulatory jurisdiction in Rapanos v. United States was significant, but hardly revolutionary. The Court's holding that the Clean Water Act only reaches those wetlands with a significant nexus to navigable-in-fact waters followed directly from its prior decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, in which the Court held the CWA did not extend to isolated, intrastate waters because they lack a significant nexus to navigable waters. Rapanos and SWANCC suggest the Court is reluctant to conclude Congress has authorized far-reaching federal regulatory controls over private land use, absent explicit statutory language to the contrary. Such a federalism clear statement rule may be in tension with some environmental concerns, but it need not hamper environmental conservation. Environmental progress is wholly consistent with meaningful limits on federal power. If the federal government is to play an optimal role in the protection of wetlands, and match its efforts to those aspects of wetland conservation that require action of a federal scope, it would concentrate its efforts in those areas where non-federal efforts are most likely to be insufficient. The challenge to policy makers is to adapt conservation measures to the broader legal landscape and recognize that environmental protection can live within legal limits.

Levy Cheers D.C. Circuit Gun Ruling:

Robert Levy, a Cato Institute senior fellow and co-counsel for the plaintiffs who successfully challenged the District of Columbia's gun laws in Parker v. District of Columbia celebrates the ruling in a Washington Post op-ed.

Unless the Court of Appeals elects to rehear Parker, the case will probably head to the Supreme Court; and that is where it belongs. The citizens of this country deserve a foursquare pronouncement from the nation's highest court about the real meaning of the Second Amendment. For those of us eagerly awaiting a clear statement in support of an individual's right to keep and bear arms, the U.S. Court of Appeals for the D.C. Circuit has declared that the Constitution is on our side.


House Warming Panel Unveiled:

House Speaker Nancy Pelosi has unveiled the composition of the new House "Select Committee on Energy Independence and Global Warming." Chaired by Rep. Edward Markey (D-Mass), the panel was created to grease the skids for climate change legislation.

Curt Schilling Enters the Blogosphere:

Star Boston Red Sox pitcher Curt Schilling has begun writing his own blog, 38 Pitches. Unlike most celebrity athletes, Schilling is often very frank, insightful, and controversial in his public statements. His first few blog posts follow that pattern, and he has even enabled comments.

In just a few days, Schilling has already posted a lot of interesting stuff for baseball fans, sabermetrics aficionados, and diehard Red Sox supporters. I'm not going to even try to summarize it all. If you're at all interested in baseball, you should check out Schilling's blog for yourself.

But one particularly interesting point for me is that Schilling seems to agree with the Moneyball approach to gauging hitters, which focuses on the value of on base percentage (OBP) and running up pitch counts:

Q-What stat do you focus on for hitters?

A-The ones I will always pay attention to are pitches per AB, swing % in counts, OBP, stuff like that. AVG, RBI’s, Runs mean zilch to me when it comes to putting a pitch specific game plan together.

Schilling writes that he intends to file regular game report posts throughout the Red Sox season. So stay tuned!

Want to use Outlook Express? Then learn how to speak French!

If you install Office 2007, it will wipe out all the spell-checking dictionaries--except for French! Hat tip to the great Francophone website Technologies du Langage.

TL is also conducting a detailed linguistic analysis of the speeches of the major French presidential candidates. For example, how often do they say "Je veux" (I want) versus "Il faut" (it is necessary)? The former is "voluntarist and egocentric," while the latter is "collectivist and impersonal." The two leaders, Nicolas Sarkozy and Segolene Royal, prefer "Je veux," while the unexpectedly strong third-party candidate Francois Bayrou leans to "Il faut."

Another entry looked at how often the candidates used any form of "vouloir" (to want), compared to other common verbs. Again, Sarkozy and Royal led the pack in "vouloir" use. A follow-up examined the candidates' use of various forms of "vouloir" (e.g., I want, they want, he/she will want, etc.). Sarkozy and Royal, much more so than other candidates, used the first-person form (Je veux; I want).

I suggest that the linguistic analysis indicates that Sarkozy and Royal ought to start running anti-Bayrou commercials using a variation of "Stuck Inside of Mobile with the Memphis Blues Again." How about "Bayrou just knows what you need, but I know what I want."

It would be interesting if some technologically adept linguists followed TL's lead, and began studying the word choices of the American presidential candidates.

The Right to Bear Arms and Sentencing Enhancements:

Apropos Orin's post below, the effect of the right to bear arms on sentencing enhancements has already come up under some state constitutions. Forty state constitutions secure an individual right to bear arms. (Six don't have a right-to-bear-arms provision, two provisions have been interpreted as securing only a collective right, and two more are textually ambiguous and have not been interpreted by their state courts.) Some state courts in those states have considered whether enhancing a sentence based on possession of guns violates the state right to bear arms.

The general thrust of those decisions that I've found is that such enhancements are constitutional if the government proves a connection (usually called a "nexus") between the possession of the gun and the crime, but unconstitutional otherwise. See, e.g., State v. Eckenrode, 150 P.3d 1116 (Wash. 2007); People v. Atencio, 878 P.2d 147, 150 (Colo. App. 1994); see also Brewer v. Commonwealth, 206 S.W.3d 343, 347 (Ky. 2006) (requiring a nexus between a gun and the crime before a gun can be confiscated in a forfeiture proceeding). How close the connection must be, I can't tell you, though if you're really interested you can read the cases to see what bearing they have on that.

I also can't tell you for sure whether federal courts would accept this test, if they recognize an individual right to bear arms. But it seems to me to make sense.

On one hand, the right to keep and bear arms does not include the right to use them in crime, whether by firing them, brandishing them, or even having them available so they can be used (and thus so they can embolden the criminal and his associates). To the extent the sentencing enhancements require a finding that the gun was possessed in furtherance of a crime, as Orin says they do at least under one statute, that should be constitutional.

On the other hand, the mere possession of a gun at the time a crime is being committed, even if the gun is far away or if the crime is not at all furthered by the gun's presence (say, it's the distribution of online pornography), likely can't constitutionally trigger an enhancement: That would simply be punishing someone for constitutionally protected behavior (possession of a gun, not use of a gun), which would be impermissible even if the person was also engaged in some properly punishable behavior.

Incidentally, something similar arises in the use of membership in a racist organization as a sentencing factor, where the First Amendment right of association is potentially involved; see Dawson v. Delaware (1992).


Sunday, March 11, 2007

The Second Amendment and Sentencing Enhancements: As Jonathan notes below, Doug Berman asks at Sentencing Law & Policy whether the DC Circuit's Parker case will alter sentencing enhancements for weapons possession. I think the answer is generally "no." The first reason is pretty straightforward: Most circuits have already rejected the individual rights interpretation of the Second Amendment. A defendant in such a circuit obviously isn't going to have any luck with any kind of Second Amendment argument.

  Second, even under Parker's individual rights interpretation the Second Amendment permits reasonable regulation of gun possession. For example, the Fifth Circuit's 2001 Emerson decision adopting an individual rights interpretation of the Second Amendment ultimately upheld the federal prosecution for possessing a firearm while subject to a state court order prohibiting it entered in a divorce action.

  My sense is that the allowance for reasonable regulations would render most (if not all) federal sentencing enhancements constitutional even under the Parker approach. For example, Doug points to the Angelos case, a case involving a drug dealer who used guns when he bought and sold marijuana. It is true, as Doug says, that Angelos received an enhancement for possessing guns at home. However, I believe there was more to it than that: under 18 U.S.C. 924(c), the jury had to and did find that Angelos possessed the guns at home "in furtherance" of his drug trafficking crimes. It seems to me that it doesn't infringe on the "core" of the Second Amendment to criminalize possessing a gun in furtherance of illegal drug trafficking offenses. To the extent others share that view, it would indicate that such enhancements do not violate the Second Amendment even under the Parker/Emerson individual rights view.

  With all of that said, it's hard to know what impact Parker will have until the Supreme Court takes a look. My guess is that the Supreme Court will grant cert, agree with the individual rights interpretation (probably 5-4), but then impose only a very deferential review of existing regulations that will end up largely maintaining the status quo.
Will D.C. Gun Ruling Affect Sentence Enhancements?

At Sentencing Law and Policy, Douglas Berman wonders how Friday's decision by the U.S. Court of Appeals for the D.C. Circuit invalidating the District of Columbia's gun control laws will affect sentence enhancements, particularly those predicated on simple gun possession:

in the wake of Parker, defendants facing sentencing enhancements based on having guns in their homes likely can and should raise constitutional objections based on the Second Amendment. And courts, applying constitutional doubt doctrines, probably should now be more cautious about broad applications of sentencing enhancements based on having guns in the home.

Berman notes a case in which the defendant's sentence was enhanced because of guns found in his home. Is this kosher after the Parker decision? After all, if a criminal defendant has a constitutional right to own a gun in the home, on what basis could simple gun possession in the home increase a defendant's sentence? It's an interesting question that I leave for sentencing mavens and other VC readers to ponder.


Snacking on some kumquats; what a delicious, adult treat, sweet, sour, and bitter. I wouldn't have thought of even mentioning them -- hasn't everyone tried them? -- but then I remembered how someone roughly my age was talking about having recently tried artichokes for the first time. Not everyone is quite as variety-of-produce-obsessed as we Californians; so if you haven't tried them before, and don't mind some bitter flavor in your dessert, give them a try. And remember: Eat them whole, don't peel them.

Sunday Song Lyric: Somehow I missed the Buffy bandwagon. I enjoyed the movie, but never really watched the show. Joss Whedon had other notable writing credits (such as Toy Story), but I did not become a real Whedon fan until after renting the entire season of "Firefly" and "Serenity." I now count myself among those who would love to see a second Firefly movie.

I've now watched a few "Buffy the Vampire Slayer" episodes, and I found some to be quite clever -- as is the underlying concept of a blonde cheerleader named "Buffy" becoming vampire killer. It's a well done show. One episode that I found particularly interesting (and helped inspire the title of a recent paper) is "Once More with Feeling," aka the Buffy musical. Admittedly, Whedon was not the first TV writer to think of this idea, but I think he pulled it off better than most (see, e.g., "Cop Rock"). From the opening song there is a self-referential wryness that permeates the episode and makes the conceit work. Here's how the episode begins:

Every single night, the same arrangement,
I go out and fight the fight.
Still I always feel this strange enstrangement,
Nothing here is real, nothing here is right.
I've been making shows of trading blows
Just hoping no one knows
That I've been going through the motions,
Walking though the part,
Nothing seems to penetrate my heart.
The title of the episode (and my paper) is taken from this reprise of "What You Feel" sung by the demon Sweet, who is responsible for making everyone sing.
What a lot of fun
You guys have been real swell
And there's not a one who can say
This ended well
All those secrets
You've been concealing
Say you're happy now,
Once more, with feeling
Now I gotta run
See you all in hell
The full lyrics for the episode are available here.
Are Derogatory Posts on Anonymous Chat Sites Costing Law Students Jobs?

This recent Washington Post article focuses on a Yale Law School student who believes that false derogatory statements about her personal life posted on a anonymous internet chat site prevented her from getting any offers for summer associate jobs. The article has generated a major blogosphere debate about the dangers of anonymous commentary on the internet (e.g. here, here, and co-conspirator Randy Barnett here).

Most of the commentators appear to assume that the YLS student is right to believe that her failure to get an offer was caused by the chat site posts. I am not so sure. According to the Post:

[The student] graduated Phi Beta Kappa, has published in top legal journals and completed internships at leading institutions in her field. So when the Yale law student interviewed with 16 firms for a job this summer, she was concerned that she had only four call-backs. She was stunned when she had zero offers.

Though it is difficult to prove a direct link, the woman thinks she is a victim of a new form of reputation-maligning: online postings with offensive content and personal attacks that can be stored forever and are easily accessible through a Google search.

I sympathize with her dilemma, but I doubt that it was caused by the chat site. How do I know? Because the same thing happened to me! Like this person, when I interviewed for law firm summer associate jobs as a second year student at Yale, I had "graduated Phi Beta Kappa [from my undergrad institution], ha[d] published in top legal journals and completed internships at leading institutions in [my] field." And, very similar to her, after interviewing at a dozen big DC firms, I ended up with two call backs and zero offers. Why did this happen? Frantic later investigation showed that the main culprits were precisely some of the credentials listed above. Because of them (particularly the publications), firms feared that I would go into academia and either never take a permanent job with the firm, or leave after just a year or two. A highly paid associate who quickly jumps ship for academia is far less profitable for a firm than one that stays for several years and can eventually bill hours as a senior associate.

Of course, I don't know for sure that what happened to me also happened to the student discussed in the article. But, in addition to the issue of her publications in "top law journals," there are two other reasons to doubt that the chat site comments played a decisive role. First, most people know that anonymous comments on chat sites are often inaccurate, and intelligent employers are unlikely to give them great credence - especially if doing so leads them to pass up a strong job applicant from what is arguably the nation's most elite law school. Second, even if law firm hiring committees did believe the comments, it seems unlikely that very many of them would reject the student's application for that reason. Most big law firms care very little about associates' personal lives outside the office, so long as those associates are racking up the billable hours. Even if one or two firms were deterred from making offers to this student by the internet comments, it is highly unlikely that all sixteen (or even a large percentage of them) were.

This is not to deny the fact that anonymous comments on the internet may cause great offense and hurt feelings, including in this case. But I doubt they play as big a role in the job market as some have suggested.