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Saturday, April 7, 2007

Banning Laptops in Class:

Georgetown law professor David Cole explains why he banned laptops from this class:

Some years back, our law school, like many around the country, wired its classrooms with Internet hookups. It's the way of the future, I was told. Now we are a wireless campus, and incoming students are required to have laptops. So my first-year students were a bit surprised when I announced at the first class this year that laptops were banned from my classroom.

I did this for two reasons, I explained. Note-taking on a laptop encourages verbatim transcription. The note-taker tends to go into stenographic mode and no longer processes information in a way that is conducive to the give and take of classroom discussion. Because taking notes the old-fashioned way, by hand, is so much slower, one actually has to listen, think and prioritize the most important themes.

In addition, laptops create temptation to surf the Web, check e-mail, shop for shoes or instant-message friends. That's not only distracting to the student who is checking Red Sox statistics but for all those who see him, and many others, doing something besides being involved in class. Together, the stenographic mode and Web surfing make for a much less engaged classroom, and that affects all students (not to mention me).

I don't think it is a big surprise that Professor Cole is pleased with the results. Perhaps more interesting is the fact that many of his students were too.

How does banning laptops work in practice? My own sense has been that my class is much more engaged than recent past classes. I'm biased, I know. So I conducted an anonymous survey of my students after about six weeks — by computer, of course.

The results were striking. About 80 percent reported that they are more engaged in class discussion when they are laptop-free. Seventy percent said that, on balance, they liked the no-laptop policy. And perhaps most surprising, 95 percent admitted that they use their laptops in class for "purposes other than taking notes, such as surfing the Web, checking e-mail, instant messaging and the like." Ninety-eight percent reported seeing fellow students do the same.

After wireless was installed in all of our classrooms, we adopted a classroom computer use policy at Case limiting laptop use to class-related activities. I share David's concern about laptop use, particularly the natural tendency to let transcription replace actual note-taking and the potential for one student's non-academic use to distract his or her classmates. I mention the policy at the start of every semester, but I generally trust my students not to abuse their laptop privileges, knowing full well that some students are surfing the web, or worse (particularly in the back). Nonetheless, I have been reluctant to ban laptops from my classes. Given Cole's experience, I might need to reconsider. [For my reconsideration, see the comments.]

[LvHB]

UPDATE: Rick Garnett has thoughts at PrawfsBlawg here.

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Google Directions:

Go to Google Directions, and enter in the boxes Boston and London. Thanks to Haym Hirsh for the pointer.

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Ohio AG Sues Paint Makers for "Public Nuisance":

On Monday, new Ohio attorney general Marc Dann filed suit against several paint manufacturers alleging that they contributed to a "public nuisance" by manufacturing lead paint decades ago. (See also here.) Lead paint remains in many older homes where it can pose a risk to children if not properly contained or remediated. RightAngleBlog has collected some responses to the suit here.

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Rotten Tomato Raid by Pullman Police:

This is a good reason not to use grow lamps to grow tomatoes in your closet. [LvIP]

[Note to local officials: That water pipe in my office was a just prop for a recent law school event on the "Bong Hits 4 Jesus" case. Honest.]

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"The Vindication of Major Mori":

David Luban has an interesting post at Balkinization on the plea bargain of David Hicks and the controversial defense strategy of Major Michael Mori.

This outcome seems like poetic justice, because the result spectacularly vindicates Maj. Mori’s decision to go to Australia to try to arouse political indignation about Hicks’s imprisonment – and Colonel Davis had threatened to press charges against Mori for violating a military-law prohibition on speaking disrespectfully of high U.S. government officials. Mori didn’t back down, and we now see that his tactical decision to focus on political sentiment in Australia was exactly the right one for his client.

For more commentary from various perspectives on the Hicks plea bargain and sentence, see the AIDP blog.

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Did Speaker Pelosi Commit a Felony?

Setting aside whether House Speaker Nancy Pelosi's amateur effort at shuttle diplomacy was wise or effective, did she violate the Logan Act and commit a felony during her visit to Syria? Robert Turner thinks the answer could be "yes."

Ms. Pelosi's trip was not authorized, and Syria is one of the world's leading sponsors of international terrorism. It has almost certainly been involved in numerous attacks that have claimed the lives of American military personnel from Beirut to Baghdad.

The U.S. is in the midst of two wars authorized by Congress. For Ms. Pelosi to flout the Constitution in these circumstances is not only shortsighted; it may well be a felony, as the Logan Act has been part of our criminal law for more than two centuries.

Michael Dorf thinks otherwise. Among other things, Dorf notes that "no one has ever been convicted of violating the Logan Act, and no indictments have even issued in the last 200 years." Even if one thinks Speaker Pelosi violated the letter of the law, Dorf notes, "There is zero chance that Pelosi will actually be prosecuted." Moreover, there are many arguments she could make in her defense.

That Pelosi's conduct was legal, does not mean it was appropriate or politically astute. Here's more Dorf on Pelosi from Dorf on Law:

The Constitution is best read to forbid congressional freelancing (to be distinguished from such things as congressional factfinding missions to foreign countries for the purpose of oversight of appropriations and related matters). Speaker Pelosi may undermine her public position on Iraq---where the Constitution clearly contemplates a substantial role for Congress---by asserting authority in an area where the Constitution truly supports Presidential prerogative.

UPDATE: More from Michael Dorf and Marty Lederman here.

Let me also make a plea for greater civility in the comments. I believe this is an interesting issue that can be discussed without partisan vitriol or name-calling.

SECOND UPDATE: Perhaps Pelosi should take diplomacy lessons from Bill Richardson.

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Friday, April 6, 2007

As Professor Shmoe Says:

Here's a tentative conjecture I have about effective legal writing: Legal writing tends to be better if you give scholars you quote credit in footnotes, not in the text. Thus, for instance,

Professor X has insightfully expressed the argument that the disruption inquiry subjects speech to a "heckler’s veto"; that is, the "content- or viewpoint-based listener reactions" of co-workers, superiors, or the public are a determining factor of the scope of employee speech protection.

is generally better written just as

The disruption inquiry subjects speech to a "heckler’s veto"; that is, the "content- or viewpoint-based listener reactions" of co-workers, superiors, or the public are a determining factor of the scope of employee speech protection.

(I assume of course the quote from X is attributed in a footnote, and I don't want to discuss how else, if at all, this sentence can be improved.)

Why do I say this?

1. The reader wants to see what you're arguing. Who said it first generally doesn't matter. What matters is the argument that's being made; and while "Professor X has insightfully expressed the argument that" is not a vast digression or distraction, it is something of one.

2. The reader also wants to know what you are arguing. Whether deliberately or not, "Professor X has insightfully expressed the argument that" is unclear on whether you fully endorse the statement. It looks like you are, but it's not completely clear. "As Professor X has argued," is less ambiguous, and seems to commit the author more clearly to what comes after; but even that's not as clear as just saying what you're asserting, and giving the credit in the footnotes.

3. Especially when a lot of people are credited, the article begins to look more like a literature survey, a summary of what others are saying. You want the article to come across as what you are saying. Of course, give credit where credit is due, but footnotes take care of your obligations just fine.

Now there are some exceptions to this general suggestion. Professor X's statement may be important precisely because he says it, for instance if he's a very big gun (e.g., what Nimmer of Nimmer on Copyright says is important because he's Nimmer), if he's a judge whose opinions are therefore especially likely to be influential, if he has special knowledge of the underlying facts (e.g., if he's writing about his own experiences dealing with some case), or if his view may seem surprising for him (e.g., "even Professor Laurence Tribe has endorsed the individual rights of the Second Amendment"). The statement may also be so closely associated with some concept or viewpoint that mentioning the professor may help remind people about the concept. And there are doubtless some other situations in which naming the scholar in the text is a good idea: In some fields or subfields, the "Professor X says .... And Professor Y argues ...." style is so common that it might be expected by at least some readers, though my sense is that general legal scholarship (or for that matter briefs addressed to courts) is not such a field.

But in general, my sense is that mentioning professors' names is needlessly distracting. The motive may well be laudable -- graciously give credit to those who have influenced your thinking -- but the result is less effective than if you stick with the substance, and give credit in the footnotes.

I likewise wouldn't encourage people to name authors of arguments that you want to rebut, for instance,

Professor X has argued that the disruption inquiry subjects speech to a "heckler’s veto"; but this is mistaken because [argument].

Here, the alternative is something like (with all the appropriate footnotes that cite X)

Nor does the disruption inquiry subject speech to a "heckler's veto." [Argument.]

or, better yet, something that frames the argument affirmatively but that rebuts the "heckler's veto" argument in the process. Here too the alternative is somewhat briefer and less distracting; but, as importantly, it depersonalizes the disagreement as much as possible. Especially if your argument is very effective, there's no reason to make it look like an attack on Professor X (something that X or his friends may be unusually sensitive to). Focus on what you're saying, and on why the contrary views are mistaken, and not on who holds the contrary views.

Now again there are exceptions to this rule. Sometimes, for instance, if X is well-known, you may want to make clear that you're taking him on, because that shows that you have the guts and ambition to take on the top people. But this rarely works, and in any event, even if that's reason to take on some of the big guns by name, the rule should still remain: Leave the text for the substance, and put people's names in the footnotes.

I should stress that this is a conjecture about what is most effective. It is not a theory about what's "wrong," or even a conjecture that the approach I counsel against is highly ineffective.

At the same time, I hope it's more than just an esthetic preference of mine. I'd love to hear your views on it (at least in part because I'm contemplating adding it to the third edition of my Academic Legal Writing book, and I'd like to vet it with my blog readers first).

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Monica Goodling Resigns: Monica Goodling has announced that she is resigning from DOJ.
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"Gun Used in Self-Defense?"

The ABC News site asks:

Have you ever defended yourself from a crime in your home, in your business, or in public by using a gun? Perhaps you warded off a potential attacker by simply showing a gun?

40 states now allow their citizens to obtain conceal-carry permits for handguns. Some people say that's dangerous, while others say it allows them to protect themselves.

If you have a story of self-defense involving the aid of a gun and would like to tell it to 20/20, please fill out the form below. A "20/20" producer may contact you.

To fill out the form (if you do have such a story), go here. I hasten to add that I can't speak to the likely quality of the resulting story -- the story may use representative incidents or unrepresentative ones, may describe them thoughtfully or sensationally, and so on. Still, I thought it was worth noting the inquiry.

Thanks to Paul Hsieh for the pointer.

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Hooking Your Computer Up To Government Owned Networks and Fourth Amendment Protection: This week, the Ninth and Tenth Circuits have each decided interesting cases on how the Fourth Amendment applies when a person hooks up their personal computer to a government-owned computer network, leading to a search of the personal computer by a government official. I'd like to blog about both opinions at length, because there is a lot here -- some of it right, some of it a bit off. But in the meantime I'll just note the opinions: United States v. Heckencamp (college student connects to college network; retains REP in his computer, but remote search by university system administrator okay under "special needs" exception) (hat tip: Tom Cross); United States v. Barrows (town government employee who brought computer to work and connected it to townn's internal network on permanent basis lost reasonable expectation of privacy in machine's contents). Very interesting cases.
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ABC News Site on the Yale Flag-Burning:

From an online survey at the ABC News site:

Three Yale students have been arrested on charges of arson, reckless endangerment and other crimes for allegedly burning a flag on the porch of their apartment. One of the students translated for U.S. troops in Afghanistan. None have criminal records.

Should flag burning be a crime?
Yes. The flag is one of our most important symbols and desecrating it should be illegal.
No. What the students did is unfortunate, but they are protected by the First Amendment.
I'm not sure. I need more information.

The only trouble: They have apparently been arrested not for burning a flag on their own porch, but for burning a flag belonging to someone else, while it was still attached to his home; on top of that, the "flames [had] reached the building's awning." So, yes, that sort of flag burning should be a crime -- the crime of arson and reckless endangerment. And ABC News should be a little more careful in its reports.

Thanks to Greg Pollowitz (National Review Online's Media Blog) for catching this, and to InstaPundit for the pointer.

Related Posts (on one page):

  1. ABC News Site on the Yale Flag-Burning:
  2. Three Yale Students Arrested For Burning U.S. Flag:
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United States v. Askew and the Scope of Investigative Stops: The D.C. Circuit handed down an interesting stop-and-frisk case involving an officer's unzipping a suspect's jacket during an investigative stop, revealing a gun. Judge Kavanaugh (joined by Judge Sentelle) ruled that the unzipping of the jacket was a permissible part of the investigative stop; Judge Edwards dissented on the ground that the unzipping of the jacket exceeded the scope of Terry v. Ohio. The case is United States v. Askew, found via How Appealing.

  A quick summary of the facts: The defendant was identified in the street as a possible suspect in an armed robbery nearby, and was brought before an eyewitness of the robbery to see if the eyewitness recognized him. Before the ID procedure, the officer had conducted a "pat down" that hadn't revealed any weapons. Next, the officer partially unzipped the suspect's jacket to help an eyewitness identify whether the suspect was in fact the robber. When unzipping the jacket, the officer felt a hard object that blocked him from being able to unzip the jacket all the way. However, he did not stop to investigate further at that time. Finally, after the identification procedure was over, the officer unzipped the jacket the rest of the way, revealing a black pouch with part of a gun sticking out. It later turned out that the suspect was not the armed robber; he just happened to have been walking near the scene of the robbery with a gun in a black pouch on his person. The suspect was charged with gun offenses, and argued that the unzipping of his jacket violated his Fourth Amendment rights.

  I think this is a very close case, and after thinking about it for a while I'm not sure where I come out. My initial instincts were that Edwards was right, because Terry allows an investigative stop and a protective search for weapons but not an investigative search. Judge Kavanaugh makes two arguments in support of the view that Terry does allow investigative searches, but neither seem terribly strong. First, he argues that fingerprinting can be allowed during Terry stops, and that these are intrusions much like unzipping a jacket. However, unzipping a person's jacket is plainly a search of his person; fingerprinting generally is thought not to be a search (although some lower courts disagree). Second, he notes that Fourth Amendment scholar Wayne LaFave has suggested that he thinks some limited investigative searches during Terry stops should be okay. But with all due respect to my co-author Wayne LaFave, his personal opinion about what the law should be is not the same as what the law is.

  On the other hand, this case does seem different from the usual case, in that the first partial unzipping was not really investigatory. Its purpose was to expose what the suspect was wearing underneath his jacket so the eyewitness could help identify whether the suspect was the robber, not to find something underneath the jacket. Given that, it seems plausible that you should subject the initial unzipping to a general Terry reasonableness analysis, as Judge Kavanaugh does. As for the reasonableness analysis, it seems plausible too, although it's hard to know without knowing more details. Was removing the jacket really helpful to the ID process, given that the jacket underneath was apparently already visible (as suggested by the fact the officer ended up not bothering to remove the jacket after the zipper became stuck when it hit the hard object)? On the other side, is unzipping a person's jacket really just a de minimis intrusion on his privacy, as Kavanaugh suggests? (slip op at 13). Perhaps, but I'm not entirely sure.

  I also have some doubts about the second unzipping. Was the second unzipping really about officer safety? If the officers were really concerned about their safety, why wait until the show-up was over to continue to unzip the jacket? Anyway, very interesting case.
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Privatization and the Law and Economics of Political Advocacy, Part 4 -- Miscellaneous Points on the Model:

This post continues my series on my upcoming Stanford Law Review paper on Privatization and the Law and Economics of Political Advocacy (see here for the technical paper). The last post set out the basic economic model -- read that post, if you haven't already and if you want to understand this post. This post just elaborates a bit on the basic model -- and applies it to prisons -- before we go on to apply the model to the real world and prisons.

* * *

If one accepts the fundamental assumption of this Part—that the probability of success only depends on the total amount of money in the pot—this simple model is flexible enough to accommodate many institutional details of privatization. The total free-riding result happens whenever one sector has a lower threshold than the other, for whatever reason. In this story, you and your competitor are identical except that you have 90% of the industry and he has 10%. But one’s threshold could be lower for other reasons as well.

For instance, suppose that, to add insult to injury, the government not only breaks you up but also subjects your revenues to a high (50%) tax rate. The breakup already altered your spending threshold by making all your curves shift down to 90% of their previous level (see the figures in the previous post). Now, with the 50% tax, your revenue and marginal revenue curves shift further down—to 45% of their original levels. (If your 10% competitor is subject to the same tax, his curves are 5% of the original industry curves.)

So the combination of the breakup and the tax makes you act like a 45% firm. These new percentages—call them “real” shares—no longer need to add up to 100% (in fact, with the 50% tax, they add up to 50%), but they convey the economic intuition that your spending threshold is lower when, for whatever reason, your benefits decrease.

After we determine everyone’s “real” shares, the same analysis applies as before: The “biggest” firm does all the advocacy, and the “smaller” firm free rides. The only difference is that we learn who is “biggest” not just by looking at proportions of the market but at shares of total industry revenue. Instead of calling this firm “biggest,” we’ll call it the “dominant” firm. Thus, if the tax rate on your revenues is 90%, you will act as though your share is 9%; and if your 10% competitor is exempt from the tax, then he, with his 10% share, is actually the dominant actor. Now you will free-ride off him.

In short, anything that affects your revenues affects your “real” share. Suppose, for instance, that your competitor is less profitable than you are: Your 90% share is a monopoly share in a 90% geographic area, while the remaining 10% is divided among 100 competitors who act according to the textbook perfect competition model, where everyone makes zero economic profits. Then those competitors—and thus that entire 10% sector—act as though they had a 0% share.

Or, as a final example, suppose that your competitor is better at advocacy. Perhaps, for whatever reason (maybe he is a slicker lobbyist), each dollar of his is twice as persuasive as a dollar of yours. Then, he acts as though his share is 20%, and his threshold goes up accordingly. All these considerations affect your “real” shares for purposes of choosing how much to spend on advocacy. (In this example, he still won’t do anything because 20% is still less than your 90% share.)

This model applies straightforwardly to privatization, which splits up an industry between public and private much as the Antitrust Division could split up a monopolistic firm. To be sure, the public sector is not a “profit maximizer” like a private firm. But the concept of profit maximization needn’t be interpreted in a narrow financial sense. Government agencies—or, more precisely, people who work at the agencies and who have some control over what the agencies do—pursue goals of some sort. Whether it is the Pentagon or a state Department of Corrections, a government agency does obtain some benefit from its service provision.

Moreover, agencies are not the only actors; the employees of the agencies, through their unions, also enjoy some benefit from public provision of the service, and they can also participate in political advocacy. The challenge is to determine who the relevant actors are and what benefits they might plausibly seek to maximize. This is what I will try to do in later posts for corrections agencies and corrections officers’ unions.

The model implies, at a minimum, that some amount of privatization will decrease advocacy, for two reasons. The first reason is that, as long as the level of privatization does not exceed a certain critical threshold, the public sector will dominate (in terms of “real” share) the whole private sector combined, so the model predicts that whole private sector’s advocacy would be zero. The second reason is that as privatization increases, the benefits of service provision to the public sector fall; because the public sector is smaller than it would be without privatization, its advocacy falls.

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Thursday, April 5, 2007

Blankenhorn (round 2):

Last week I responded to an article by David Blankenhorn in the Weekly Standard arguing that support for SSM and non-traditional views of marriage “go together” and are “mutually reinforcing.” He based this conclusion on international survey data that shows, he claims, a correlation between recognition for SSM in a country and non-traditionalist beliefs. He also quoted from a few pro-SSM marriage radicals in academia who literally embody the tendency of these views to “go together”: they support SSM because they think it will undermine traditional marriage. I responded that, for a number of reasons, this was not a winning argument.

Now Blankenhorn has defended his argument against my criticisms. (1) First, he denies that he has “eschewed” the argument of Stanley Kurtz, based on claimed correlative data, that gay marriage has contributed to the decline of marriage in Europe. Instead, he says that he “embraces” Kurtz’s argument, and is trying only to “build” on it. (This has come as a relief to Kurtz, who initially suggested there might be some disagreement between them.) (2) Second, he argues that it is unfair of me to require him to “scientifically demonstrate” that gay marriage is contributing to non-traditional beliefs about marriage when the correlative data allow us “to make reasonable (if qualified, and modest) inferences about a likely causal relationship” between the two. (3) Third, he claims that while there may be a few anti-SSM marriage radicals who believe gay marriage will actually strengthen marriage, “the dominant, most influential idea about gay marriage” on the left is represented by the marriage radicals he cites and not those I cite. (4) Finally, he challenges me to cite a “prominent supporter” of SSM who has publicly committed to otherwise traditionalist beliefs about marriage (e.g., we should make divorce harder, discourage out-of-wedlock births, stigmatize adultery).

Let’s take these responses one at a time.

(1) The whole point of Kurtz’s work has been to show, mainly through the use of correlations, that gay marriage has caused marital decline in Europe. (Even Kurtz’s correlations are faulty, incomplete, and unpersuasive – but that’s another matter.) In his book, Blankenhorn said flatly, “These correlations [between SSM and non-traditional attitudes] do not prove that gay marriage causes marriage to get weaker. I am not trying to prove causation.” (p. 232) (emphasis original) In his Weekly Standard article, he suggests “giving up the search for causation” and looking for “recurring patterns” in the data instead.

It seemed to me that Blankenhorn was trying to distance himself, at least rhetorically, from Kurtz. I thought it was a wise decision.

(2) It is now clear that Blankenhorn’s argument is structurally and conceptually the same as Kurtz’s, only weaker. Here’s why.

There are a couple of ways one might argue that gay marriage is hurting marriage. First, one might argue that gay marriage has caused problems to marriage itself, like rising cohabitation and unwed childbirths. That is what I’d call a strong and direct claim about the harm of gay marriage. Second, one might argue that gay marriage has caused people to have beliefs about marriage that might, in turn, cause concrete harms to marriage itself. This is an indirect and weaker claim about the harm of gay marriage. Kurtz presents the former, stronger and more direct, form of the argument. Blankenhorn, it turns out, is presenting the latter, weaker and more indirect, form of the argument. Blankenhorn’s argument is thus a poor cousin of Kurtz’s.

Except for that, the arguments are basically the same. Like Kurtz, Blankenhorn relies on what he claims is a correlation to “infer” a “likely causal relationship.” (Blankenhorn is, to his credit, rhetorically more modest than Kurtz about the strength of his own argument.)

What do we make of Blankenhorn’s use of correlations? I don’t think correlations are useless. They might indicate something important is going on. By itself, a correlation could be a starting point for further investigation. It’s a clue that two seemingly unrelated phenomena may be related. But it might also seriously mislead us unless we’re very careful.

Consider the case of smoking as a cause of cancer, which Blankenhorn uses to show that correlations can be valuable because they can help show causation. Yes, there’s a correlation between smoking and cancer. But we know smoking causes cancer not simply because of this simple correlation. Instead, we know smoking causes cancer because decades of careful, replicated, peer-reviewed, and methodologically sound medical research has revealed (1) a correlation (2) that sequentially matches the harm (e.g., lung cancer often follows smoking), (3) we’ve controlled for confounding variables and (4) ruled out multiple other plausible causes of the harm (e.g., auto exhaust or coal-fired plants), (5) and we’ve identified the agent or mechanism (over 70 chemicals in tobacco) that (6) causes a harmful result (tobacco carcinogens damage DNA inside lung cells).

When it comes to gay marriage “causing” harm by leading to non-traditional attitudes about marriage, Blankenhorn gives us only the first of these six. He has only correlation. And even this, it turns out, is suspect.

I’m not just playing with words here and I’m not requiring “scientific proof” analogous to demonstrating pathological processes in the body. I’m asking for a standard degree of reliability in inferences and an accounting when the correlations seem explicable by numerous other factors and are sequentially all wrong (more on that below). There’s good reason to be suspicious of an argument that a correlation allows us to infer a causal relationship. There’s a correlation between people who buy ashtrays and people who get lung cancer, but this hardly proves that buying ashtrays causes lung cancer. If we relied on correlation, we’d think all sorts of crazy things were causally related.

Consider what can be done with a correlation used to “infer” a “likely causal relation.” People in countries without same-sex marriage are more likely to believe women should stay at home and not work, that men should be masters of their households, that there should be no separation of church and state, that people should not use contraception when they have sex, that divorce should never be permitted, and that sodomy should be criminalized. If these correlations exist, have I demonstrated the existence of a “cluster of beliefs” that reinforce one another and “go together,” undermining the arguments against SSM?

Or consider the more sympathetic correlations to SSM that Blankenhorn ignores. Countries with SSM are richer, healthier, more democratic, more educated, more liberal, have more egalitarian attitudes about women, etc. Have I shown that the absence of SSM is likely causing harm in those unfortunate backward countries that refuse to recognize it?

Here’s another correlation helpful to the conservative case for SSM: countries with SSM are enjoying higher marriage rates since they recognized it. Have I shown that SSM likely caused this?

Even Blankenhorn’s correlation is suspect, in a way very similar to Kurtz’s. Non-traditional attitudes about marriage in countries with SSM preceded the recognition of SSM, just as signals of marital decline in Europe preceded SSM. Though I haven’t gone back and checked the previous international surveys from the 1980s and 1990s, I’ll bet my mulberry tree they show that. Besides, even the survey data Blankenhorn relies on show that he’s got a problem. In one survey, the data comes from 1999-2001, before any country had full SSM. In the other survey, the data comes from 2002, when only one country (the Netherlands) had full SSM.

How could SSM have caused a decline in traditional marital attitudes before it even existed? Of course, Blankenhorn is still free to argue that non-traditional attitudes greased the way for SSM, but this doesn’t show that SSM caused or even reinforced non-traditional attitudes. What Blankenhorn needs, even as a starting point, is some evidence that non-traditionalist views rose after SSM. He doesn’t have that.

Of course, even if he had the sequence right, he’d still have the problem of trying to deal with the existence of multiple other factors that have plausibly fueled non-traditionalist attitudes. Here, too, Blankenhorn has the same problem as Kurtz. Just as we can plausibly surmise that factors like increased income, longer life spans, more education, and women’s equality – rather than SSM – have caused actual marital decline, so we can plausibly surmise that factors like these have caused a rise in non-traditionalist attitudes about marriage. And even if the data showed a rise in non-traditional attitudes after SSM, that might well only be a continuation of pre-existing trends. Kurtz has that problem, too, when he tries to show marital decline.

(3) I demonstrated in my last post that there are quite a few marriage radicals who are uncomfortable with gay marriage (either oppose it or very reluctantly support it) because they think it will strengthen marriage. That was just the tip of an iceberg, believe me. Blankenhorn says that he is familiar with these authors and cites them in his book.

But wait a second. While he mentions Michael Warner, for example, it is not to present Warner’s concern that gay marriage will reinstitutionalize marriage but as evidence of the bad reasons gay couples seek marriage (see p. 142). And while he quotes from Tom Stoddard (pro-SSM marriage radical) in the noteworthy early debate Stoddard had with Paula Ettelbrick (anti-SSM marriage radical), he omits even mentioning Ettelbrick’s influential concerns about SSM expressed in the same debate he quotes from (p. 162). (I quoted from her essay in my last post, "Blankenhorn and the Marriage Radicals".)

Apologies if I missed it, but I can’t find any acknowledgment from Blankenhorn of the marriage radicals’ deep unease with gay marriage, an unease that is present in the writings of even those marriage radicals who favor gay marriage. This is a significant and strange omission, one that henceforth opponents of gay marriage must know will not go unchallenged.

Blankenhorn may now say that the authors I have cited and the concerns they have expressed are a minority on the left. I don't know what the basis is for that claim, so I don't know how to assess it. But frankly, it is hard to credit such an observation when his book demonstrates no familiarity with these quite common anti-SSM concerns among marriage radicals.

And why do we care what marriage radicals think anyway? Though prolific in academic journals, they’re a small group and are not very influential in public policy. They won’t be able to control how heterosexuals or homosexuals think of their marriages or how they practice them. Gay marriage will have its effects, whatever they hope for.

Blankenhorn defends his reliance on their writings in his book this way (p. 128):

I believe that my nightmare can even be expressed as a sociological principle: People who professionally dislike marriage almost always favor gay marriage. Here is the corollary: Ideas that have long been used to attack marriage are now commonly used to support same-sex-marriage. (emphasis original)

We could have a lot of fun with “sociological principles” like that. How about this:

People who professionally dislike feminism almost always oppose gay marriage. Here is the corollary: Ideas that have long been used to attack feminism are now commonly used to oppose same-sex marriage.

Or this:

People who professionally dislike homosexuality almost always oppose gay marriage. Here is the corollary: Ideas that have long been used to attack homosexuality are now commonly used to oppose same-sex marriage.

(4) Blankenhorn challenges my claim that conservative supporters of SSM generally believe the following:

(1) marriage is not an outdated institution, (2) divorce should be made harder to get, (3) adultery should be discouraged and perhaps penalized in some fashion, (4) it is better for children to be born within marriage than without, (5) it is better for a committed couple to get married than to stay unmarried, (6) it is better for children to be raised by two parents rather than one

He thinks such people don’t really exist and asks me to name a prominent one. OK, here goes.

As I thought was clear in my post, I believe these six things (though I may not count as a “prominent” SSM supporter). Though I’d prefer to let him speak for himself, I know that Jon Rauch unequivocally supports 1, 4, 5, and 6. On 2, he certainly supports the goal of reducing the divorce rate, but isn’t sure how to do it. On 3, he supports discouraging adultery socially (“stigmatizing it,” as Blankenhorn aptly puts it), but doesn’t want the law to penalize it. And while Andrew Sullivan can certainly speak for himself, I also know that he supports all six, though he also doesn’t want the government investigating or penalizing people for adultery. (Like Rauch and Sullivan, I don't support criminalizing adultery but am open to proposals for attaching some form of civil disadvantage to it. I suggested as much reviewing William Eskridge's book Gaylaw six years ago.) I'd bet David Brooks, a conservative supporter of SSM, agrees with all or most of these ideas in some form — but I frankly haven't asked him. I’m certain there are others in this pro-SSM traditionalist camp. Maybe conservative pro-SSM writers and bloggers will challenge Blankenhorn's suspicion that they're a fiction.

Where have we said all these things? I don’t know that each of us has written about each of them in precisely these terms or in the somewhat different terms Blankenhorn insists we should have. But these views are at the very least implicit in the conservative case, and in some cases they've been made explicit. The conservative case for SSM is now almost 20 years old, going back to Sullivan’s pathbreaking New Republic article, and continuing through his book Virtually Normal, Rauch’s voluminous writings and book arguing that marriage should be the gold standard for commitment and raising children, and my own work.

I don’t have time to chase down sources and quotes for Blankenhorn, but for my own work he could start with the Traditionalist Case for Gay Marriage or look at some of the many columns I’ve written on the subject. If he really cares what I think, he can look forward to a law review article I'll be writing soon on traditionalism and gay marriage. I don’t know how one could come away from all this with the impression that I think marriage is outdated, that high divorce rates are good (I’ve criticized them in numerous debates on the subject with St. Thomas Professor Teresa Collett, BYU Professor Lynn Wardle, etc), that children’s well-being is unrelated to marriage, etc.

As Blankenhorn correctly puts it, we really do “operate[] from a very important shared intellectual and moral framework,” which is what makes the SSM debate among conservatives so much more interesting than the tired debates between the pro-SSM marriage radicals and anti-SSM marriage traditionalists. They really have nothing useful to say to each other. By contrast, I've suggested ten principles upon which conservatives, both pro- and anti-SSM, can agree. They give us a lot of common ground.

In conclusion (!), I wouldn’t usually use this many electrons responding to a single article or book. But Blankenhorn’s book is unusually well-written. And intellectual guilt-by-association has an easy appeal that may make his argument that these bad things all "go together" an anti-gay marriage mantra in the future. Like Kurtz’s superficially frightening correlations, now largely ignored on both sides of the debate, Blankenhorn's argument has to be carefully unpacked to show how unsatisfying it is.

P.S.: If you haven't had enough, see some further thoughtful comments about Blankenhorn's argument by St. Thomas Law School's Robert Vischer.

P.P.S.: Rauch has now finished reading Blankenhorn's book and calls it "the best piece of work that the anti-gay-marriage side has yet produced, containing much to admire despite its flaws."

P.P.P.S.: Maggie Gallagher weighs in: "The question is: what is the main idea SSM advocates are asking us to embrace and what implications over the long term will accepting this core idea about gay marriage have for our ideas about marriage in general?"

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Dice-K's Debut:

In their ongoing struggle against the Empire, the Rebels have called on a new hope from far, far away. Today, he made an impressive debut. True, it was only one game, and against the weak Kansas City Royals. However, let us not forget that Luke Skywalker had to vanquish the incompetent Jabba the Hutt in order to prepare for his confrontation with the more formidable Emperor Palpatine. In time, "Dice-K" Matsuzaka may do the same with the Emperor Steinbrenner.

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DOJ Computer Crime Manual: The Justice Department's Computer Crime and Intellectual Property Section recently published a new manual, "Prosecuting Computer Crimes," that explains most of the federal computer crime statutes and analyzes sentencing and jurisdictional issues as well. I disagree with some of the positions adopted in the manual, but it's a very useful resource for those wanting to get started in the field. It's also essential reading if you're a defense attorney in a federal computer crime case and you want to know what positions the government is likely to adopt.
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Gonzales Prepping for Senate Testimony: From the front page of the Washington Post:
  Attorney General Alberto R. Gonzales has retreated from public view this week in an intensive effort to save his job, spending hours practicing testimony and phoning lawmakers for support in preparation for pivotal appearances in the Senate this month, according to administration officials.
  After struggling for weeks to explain the extent of his involvement in the firings of eight U.S. attorneys, Gonzales and his aides are viewing the Senate testimony on April 12 and April 17 as seriously as if it were a confirmation proceeding for a Supreme Court or a Cabinet appointment, officials said.
  Ed Gillespie, a former Republican National Committee chairman, and Timothy E. Flanigan, who worked for Gonzales at the White House, have met with the attorney general to plot strategy. The department has scheduled three days of rigorous mock testimony sessions next week and Gonzales has placed phone calls to more than a dozen GOP lawmakers seeking support, officials said.
  . . .
  "In a sense, this is even more difficult than a confirmation hearing, because you are defending a record that has been assailed publicly and it involves other members of Justice who are also going to be called," said former senator Daniel R. Coats (R-Ind.), who led confirmation preparations for Supreme Court Justice Samuel A. Alito Jr. and former White House counsel Harriet E. Miers.
  "It just compounds the difficulty facing any witness in this situation," Coats said. "You don't have the ability to coordinate with other organizations or individuals that are going to be testifying, and there will be a lot of people looking for inconsistencies. It is no small challenge for the attorney general."
  When it's such a major challenge for an Attorney General to testify truthfully about what he himself did, it's probably time to get a new Attorney General.
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Needless Abstractions:

While I'm on the topic of writing, I thought I'd bring up one of the most serious problems I find in legal writing (though I suspect it's common in other fields, too): Needless abstractions.

Generally speaking, arguments are most effective when they are made using words that clearly describe the real problems that people face, rather than using abstractions (even if the abstract terms aren't especially legalese). Consider the following phrases, from student papers I got in my firearms regulation seminar:

... when law enforcement is unavailable.

Considering the amount of violence that is connected with guns ...

... will have a positive effect.

They are written in fairly plain English, and aren't hard to understand -- but they make their points through abstract terms such as "unavailable," "violence," and "positive effect," and the circumlocution "law enforcement."

When you want someone to protect you, whom do you want? Your visceral, real-life answer will be "the police," not "law enforcement." What do you want them to do? Your normal answer will be "come in time," not "be available." "When the police can't come in time" quickly engages the reader's practical concerns; "when law enforcement is unavailable" doesn't. (I assume that the "[come in time] to prevent a killing, rape, or robbery" is implicit from context; if it isn't, then some such phrase should be included.)

"Considering the amount of violence that is connected with guns" is likewise not nearly as effective as "Considering how many people are killed, injured, or threatened with guns." Killings, injuries, and threats are what people really worry about; "violence" is just the abstract term for that. Readers will intellectually understand what "violence" means, but they won't be as engaged by it as they would be by "killed, injured, or threatened."

Similarly, instead of "will have a positive effect," it's much better to describe the actual effect, for instance "will prevent many murders and suicides." No one wants "positive effects" in the abstract; they want specific, concrete benefits, and if you explain the benefits, people will be more persuaded.

One more example:

The waiting period provides a vital time frame, which allows an individual the time to reconsider their actions and consequently, lives will be saved.

This sentence contains several writing glitches; "individual" is legalese for "person," "a vital time frame" is vague, and "their" is plural while "individual" is singular. But the deeper problem is that the sentence is written using unnecessary abstractions. A better formulation would be:

The waiting period can prevent impulsive murders and suicides, by giving people time to calm down [optional: and reconsider their plans].

Instead of the general "time to reconsider their actions" and "lives will be saved," this explains concretely which actions (impulsive murders and suicides) will be reconsidered and which lives will be saved. It provides more substantive details, describes a concrete scenario for the reader (an impulsive person needs to calm down, or else he'll commit murder or suicide), and thus makes the argument more persuasive.

There are two situations in which the concrete is not as good as the abstract. First, sometimes one needs to use a term that's more abstract but more precise. For instance, "murder" is usually a better, more concrete term than "homicide," but if one is talking about a study that measures all homicides (including manslaughter, justifiable homicide, and excusable homicide), one must use the more accurate term.

Second, sometimes one intentionally wants to soften the emotional force of a claim, either because the issue may be too viscerally engaging (part of the reason that some articles use "sexual assault" instead of "rape"), or because one is describing the other side's argument. This second reason is not entirely praiseworthy, but it may be tolerable; persuasive writers have an obligation to describe the counterarguments honestly, thoroughly, and clearly, but they need not frame them in the most emotionally forceful way possible.

But these are exceptions. The rule should be to talk about what actually matters to the reader (the police not coming in time) and not about abstractions (law enforcement being unavailable).

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Passive Voice:

A recent usage thread turned to the old question of the passive voice. Many people recommend that you turn the passive voice -- "The action was done by this person" (the object was verbed by the subject) or just "The action was done" -- into the active voice, "This person did this action" (the subject verbed the object).

This is generally good advice. Passive voice often makes writing less direct and thus less forceful: "Passive voice should be avoided by you" is worse than "Avoid the passive voice." It also sometimes conceals responsibility, as in the famous "Mistakes were made" used as a substitute for "We made mistakes."

But when it comes to writing, unwise editors often turn good general advice into a bad categorical rule. So it is here: "Generally avoid the passive voice" is good, "never use the passive voice" is bad.

In particular, if your discussion focuses more on the object than on the subject (the actor), it's often better to use the passive voice, which has a similar focus. If you’re writing about the substance of the USA Patriot Act, for instance, the passive sentence "The Act was adopted shortly after the September 11 attacks" may be better than the active "Congress adopted the Act shortly after the September 11 attacks." The passive voice properly focuses the discussion on the Act, where you want it to be, rather than on Congress, which is not terribly relevant to your thesis. (Of course, if you were writing about Congressional decisionmaking related to the Act, "Congress adopted ..." may be exactly right -- but again the point is to choose the voice that fits what you want to emphasize, not to mechanically make everything active.)

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Virtual Property:

There's a fascinating post over at Terranova -- a terrific blog on the legal, economic, and social environments in virtual worlds -- on Elizabeth Townsend Gard's experiment with her first year Property students, in which students make "expeditions" into Second Life to explore what the common law property concepts they're learning about in class (the law of finders, adverse possession, landlord-tenant law, etc.) look like in virtual space, and then they report back on what they've learned. The student projects are quite interesting, and the whole project is worth a good look, at least if you're interested in what "property law" might look like in 50 years or so . . . [Thanks to Greg Lastowka for the pointer]

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Privatization and the Law and Economics of Political Advocacy, Part 3 -- The Model:

This post continues my series on my upcoming Stanford Law Review paper on Privatization and the Law and Economics of Political Advocacy (see here for the technical paper). This installment is not connected to privatization specifically at all, much less prisons, but gives (in plain English) the basic economic theory behind public goods and free riding.

* * *

I now present the main model I use to predict how industry actors will react to privatization. The central feature of the model is that industry-increasing advocacy is a public good. Privatizing part of the industry therefore introduces a collective action problem: Unless everyone in the industry cooperates with each other, they will together spend less on industry-increasing advocacy than a single firm would if it covered the whole industry, because a portion of their expenditures will benefit their competitors.

This intuition should not be surprising, as it is standard in the literature on public goods. When a good is private, everyone pays for, and enjoys, only his own consumption. By contrast, when a good is public, in the classic model, everyone benefits from the total amount, and this amount is determined by the total amount of contribution.

If we benefit from our national defense, we benefit from the full amount, not from the chunk we paid for; we cannot be excluded from the full benefit, no matter how little we paid; and the total amount of national defense is just determined by how much money Congress allocated to national defense from the Treasury. A tax-funded program that improves air quality benefits everyone who breathes the relevant air, whether or not they contributed to the program; and the total improvement is just determined by the amount of resources directed toward that goal.

Similarly, contributing to a candidate’s campaign benefits all of his supporters; and it is not too implausible to say, as an approximation, that to the extent the money he raises and spends affects his probability of winning, it is only the total amount of money that matters.

In all these cases, the temptation to free ride off one’s fellows’ contributions is strong—so strong that the category of “public goods” is standard among economists as a case of “market failure.”

To explore the basic model, consider a monopolist, who's willing to invest some amount of money in lobbying to increase the size of his industry. To determine that amount, he weighs the benefit that his money can buy—the expansion of the industry is worth something to him, and money can help his policy pass—against the cost of the lobbying.

If that firm is broken up into two smaller firms—say a 90% incumbent firm and a 10% splinter firm—the larger incumbent isn’t willing to spend as much as it used to be, because the costs of lobbying are the same while the benefits are 10% less than they used to be. And the smaller splinter firm won’t be willing to spend anything, because it will be satisfied free-riding off the larger incumbent’s lobbying. Thus, splitting up an industry tends to decrease industry-expanding lobbying.

The rest of this post will illustrate this intuition graphically.

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Making the Daily Show: Over at PrawfsBlawg, lawprof Jack Chin blogs about his experience being interviewed for a segment on the Daily Show. An excerpt:
Probably their most effective technique was one that lawyers can't emulate: Editing together a question with an answer to an entirely different question. You see, they do the interview with a single camera; first, they ask all of the questions and tape the mark's answers, and then they tape the questions, sometimes doing multiple takes, so they have several versions from which to choose. So, a couple of questions went like this:

Question: Do you think it is important that everyone have the right to vote?
Answer: Very much so, yes sir.


Question: Does the Arizona Voter Rewards Initiative make you angry?
Answer: No, but I think it is a bad idea as a matter of policy.

On TV, it was like this:

Question: Does the Arizona Voter Rewards Initiative make you angry?
Answer: Very much so, yes sir.


The last thing the Daily Show team taught me was the value of an airtight release, which they made me sign at the beginning of the process. The document made clear that they were free to present me in a false light, so nothing they did was unexpected.
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Wednesday, April 4, 2007

"Spousal unions" for same-sex couples pass New Hampshire House:

The vote was overwhelming and bipartisan, 243-129. The bill is limited to same-sex couples, who will have all the rights and restrictions of marriage. Attempts to include father-son and sister-aunt partnerships, etc., and opposite-sex couples, were defeated.

The bill moves to the state senate and then to the Democratic governor, who opposes gay marriage but hasn't spoken either way on civil or "spousal" unions.

New Hampshire would be the sixth state to grant full marital benefits to gay couples, and the third to do so purely legislatively, without an order from a court. All of the state-wide laws so far have been limited to same-sex couples (with an exception for elderly opposite-sex couples in California) and have applied the consanguinity and other eligibility restrictions of marriage.

UPDATE: A commenter makes an excellent catch. The actual legislation calls the new partnerships "spousal unions" — not "civil unions" — making it even harder to distinguish what the state is doing from marriage. I've adjusted the title and text of the post to reflect this. It's going to test some boundaries.

Some interesting questions to ask presidential candidates campaigning in New Hampshire and who've said they favor "civil unions," but not "marriage": Do you favor "spousal unions" for gay couples that give them all the rights and responsibilities of marriage but aren't called "marriages"?

And what if we take it the next step and called them "marital unions" but not "marriage"? This will test just what it is people think is at stake in the use of language to describe gay families.

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Profile of Yale Law Dean Harold Koh:

The Yale Daily News has what strikes me as a balanced profile of Koh [the first of a two-parter], who is by all accounts a nice guy, a good fundraiser, and beloved by his students, but is also a highly partisan liberal Democrat under whose tenure as dean conservative and libertarian students have felt increasingly uncomfortable, and conservative and libertarian alumni have, at least in some cases (as noted in the Daily News piece) grown increasingly alienated.

The article paraphrases a post I wrote for the VC mentioning that, by contrast to when I was a student, Harvard Law School under Dean Kagan now has a reputation as a far friendlier place than Yale for Federalist Society types, and that Harvard is now much more open-minded than Yale about hiring non-liberals. While I don't object to the paraphrase, it would have been better form if the Daily News writer had made it clear that he never actually spoke to me, but just cribbed some comments from the VC.

Meanwhile, Professor Bainbridge piles on. Noting that Koh is on everyone's short list for the Supreme Court in a Democratic administration, Bainbridges predicts that "Koh's appointment to the SCOTUS would be an unmitigated disaster."

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Columbia University Continues to Threaten to Use Eminent Domain to Expand into a Nearby Harlem Neighborhood:

Last year, I blogged about Columbia University's threats to use eminent domain to take over some land it covets in a the nearby Manhattanville neighborhood of Harlem. According to this New York Post article by urban development specialist Julia Vitullo-Martin (hat tip Candace de Russy), the University is continuing its threats:

The expansion of Columbia, already the city's seventh largest private employer, would add another 6,900 premium jobs - high pay, with generous benefits and pensions - to the local economy.

And the 17 acres on which the school hopes to build (bordered by 125th and 133rd streets, and by Broadway and Riverside Drive) are largely underused relative to the rest of Manhattan.

The sticking point is plainly Columbia's demand to get it all. Luisa Henriquez, who lives in a city-owned building on 132nd Street, puts it this way: "Columbia moving in is a bad thing because Columbia isn't willing to share."

"We're not going to take [eminent domain] off the table," says Columbia Executive Vice President Robert Kasdin. "We're going to preserve our right to argue to the state that it's in the public interest that they do it."

Yet even the strongest Harlem supporters of the Manhattanville plan, like realtor Willie Kathryn Suggs, balk. "I don't want them invoking eminent domain for private use. It's not right," says Suggs. "The neighborhood will get safer streets and better restaurants. I want that to happen. But under the rules. If they want more property they should buy it fairly, like anyone else."

And the opponents are ferocious. Manhattanville's largest private property owner, Nick Sprayregen, President of Tuck-It-Away Self-Storage, says that Columbia wants four of his five buildings . . . "My father built this business, which I intend to hand onto my children," he says. "We worked hard for the neighborhood, and intend to be part of its success.

"I won't move," Sprayregen insists. "But Columbia wants it all - 100 percent of everything. They have no desire for nuance, for compromise, for diversity."

The article notes that Columbia plans to argue that the area in question is "blighted." Under New York law eminent domain law, which is perhaps the most hostile to property rights of any in the country, almost any area can be declared blighted - and thereby subject to condemnation - no matter what its condition. As I noted in my original post, just a few years ago a New York appellate court held that Times Square was blighted, thereby permitting the condemnation of some property there for transfer to the New York Times for the purpose of building a new headquarters for the New York Times. Unfortunately, the use of blight standards broad enough to cover virtually any property is far from unique to New York, as I explained in more detail in this August 2006 Legal Times article. The retention of broadly defined blight statutes also undermines many of the reform laws enacted in the wake of Kelo v. City of New London (See my paper on post-Kelo reform, pp. 15-21).

Three other aspects of the Columbia/Harlem situation are symptomatic of broader flaws in eminent domain policy. First, this is just one of many cases where the power of eminent domain is used by wealthy and politically influential interests (in this case Columbia), at the expense of the poor and politically weak (here, the mostly poor and minority residents of Manhattanville). Second, as Columbia's lawyers surely know, even the mere threat of eminent domain often enables powerful interest groups to acquire land at a lower price than the owner would be willing to accept on the open market. For this reason, the misuse of eminent domain for the benefit of powerful interest groups is far more common than we might think if we focus only on takings that are actually carried out. Finally, like many would-be beneficiaries of eminent domain, Columbia claims that it needs to acquire 100% of the area in question and that eminent domain may be the only way to do so. Both claims are dubious, especially the latter. As I explain in some detail in this forthcoming article (pp. 21-29), there are numerous private sector alternatives to condemnation in cases where a developer seeks to acquire land for uses that really are more valuable than those of the present owners.

Perhaps Columbia's planned expansion really would benefit the local economy more than the present uses of the land in question. If so, it is highly likely that those benefits could be achieved without resorting to condemnation or using the threat of eminent domain to intimidate property owners into selling at a low price. And we should also keep in mind the fact that many "blight" and economic development condemnations actually damage local economies far more than they benefit them, as happened in the notorious 1981 Poletown condemnations, and also in Kelo v. City of New London (where some $80 million in public funds has been spent on a development project for little or no return). Once Columbia takes over the condemned land, it will not be under any legal obligation to actually provide the 6900 new jobs and other economic benefits that it is currently touting. As in many previous such cases, the new owner of condemned land could decide that providing the benefits it promised is not in its interest.

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Three Yale Students Arrested For Burning U.S. Flag: No, it's not a First Amendment test case; as I understand the facts, the three students went on to someone else's private property and lit their American flag on fire. One of the three students is Said Hyder Akbar, 23, the author of Come Back to Afghanistan.

Related Posts (on one page):

  1. ABC News Site on the Yale Flag-Burning:
  2. Three Yale Students Arrested For Burning U.S. Flag:
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Justice Stevens' Scientific Mistake:

As Roger Pielke Jr. points out at Prometheus, there is a scientific error in Justice Stevens' Massachusetts v. EPA opinion:

there is a science error in the majority opinion, though it seems clear that it would not change their judgment of injury. It states:

. . . global sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming.

According to the IPCC’s Third Assessment Report this value is more like 3 to 5.5 centimeters (from figure 11.10b here) with the rest of the 10 to 20 centimeters total due to natural causes. The Supreme Court has attributed all sea level rise to global warming which is incorrect.

As Pielke goes on to note, this error is not particularly material to the majority's conclusions — it would have found standing even had it relied upon the correct estimates for warming's contribution to sea-level rise — but it is worth noting nonetheless.

Related Posts (on one page):

  1. Justice Stevens' Scientific Mistake:
  2. More Mass v. EPA Commentary:
101 Comments
Steve Simpson Responds to Comments on IJ Campaign Finance Report:

Last week I noted the new report from the Institute for Justice on state campaign laws and their impact on grassroots political activity. The post spurred many interesting Comments. Steve Simpson of IJ has provided a response to some of the comments and questions presented there.

I reproduce his response here (it is extensive, so I have hidden some of the text):

Your readers have raised a number of interesting points and questions about IJ’s study on disclosure in the ballot issue context on which I’d like to comment.

First, its important to be clear about our position. We support a free market in information. Disclosure should be between groups that speak out about ballot issues and their contributors. If some groups think disclosure is important, they can disclose their contributors and perhaps even make it an issue in the campaign. If reporters or voters favor it, they can call on groups to disclose. But the government should not require disclosure simply because people want to exercise their First Amendment rights.

That does not mean that no one will know who is behind a ballot initiative. Placing an issue on the ballot is a fairly detailed process. Someone must actually draft the language of the initiative, gather the necessary signatures, and go through the process to place the issue on the ballot. That person or group will obviously have to be disclosed.

But disclosure laws apply to more than just the sponsors of a ballot initiative.

(show)

24 Comments
Privatization and the Law and Economics of Political Advocacy, Part 2:

In my previous post, I introduced my forthcoming Stanford Law Review article, Privatization and the Law and Economics of Political Advocacy. (Again, for those who are interested in a more technical exposition, you can also check out my related economics paper.) I explained the nature of the political-influence argument against privatization, and quoted from recent writers who have applied this critique to prison privatization. This post gives a brief outline of my argument, which I will develop further in later posts.

* * *

I assume, for purposes of this Article, that the concern underlying this critique is reasonable—that is, that economically self-interested pro-incarceration advocacy is undesirable. (Though in fact, this is not at all clear; I'll return to this point later.) This concern, however, fails to support the argument against privatization for several reasons.

First, the public sector—chiefly public corrections officers’ unions—is already a major self-interested pro-incarceration political force. For instance, the most active corrections officers’ union, the California Correctional Peace Officers Association, has contributed massively in support of tough-on-crime positions on voter initiatives and has given money to crime victims’ groups, and public corrections officers’ unions in other states have endorsed candidates for their tough-on-crime positions. Private firms would thus enter, and partly displace some of the actors in, a heavily populated field.

Second, there is little reason to believe that increasing privatization would increase the amount of self-interested pro-incarceration advocacy. In fact, it is even possible that increasing privatization would reduce such advocacy. The intuition for this perhaps surprising result comes from the economic theory of public goods and collective action.

The political benefits that flow from prison providers’ pro-incarceration advocacy are what economists call a “public good,” because any prison provider’s advocacy, to the extent it is effective, helps every other prison provider. (We call it a public good even if it is bad for the public: The relevant “public” here is the universe of prison providers.) When individual actors capture less of the benefit of their expenditures on a public good, they spend less on that good; and the “smaller” actors, who benefit the least from the public good, free-ride off the expenditures of the “largest” actor.

In today’s world, the largest actor—that is, the actor that profits the most from the system—tends to be the public-sector union, which still provides the lion’s share of prison services and whose members benefit from wages significantly higher than those of their private-sector counterparts; the smaller actor is the private prison industry, which not only has a small proportion of the industry but also does not make particularly high profits.

By breaking up the government’s monopoly of prison provision and awarding part of the industry to private firms, therefore, privatization can reduce the industry’s advocacy by introducing a collective action problem. The public-sector unions will spend less because under privatization they experience less of the benefit of their advocacy, while the private firms will tend to free-ride off the public sector’s advocacy. This collective action problem is fortunate for the critics of pro-incarceration advocacy—a happy, usually unintended side effect of privatization. One might even say that prison providers under privatization are led by an invisible hand to promote an end which was no part of their intention.

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The State of Post-Kelo Reform - A Reply to Bert Gall:

In my previous post, I put up a critique of my paper on post-Kelo eminent domain reform by Bert Gall, an attorney with the Institute for Justice. IJ has done outstanding work protecting property rights in both the legal and political arenas, and I am sorry to have to disagree with them. However, I do not believe that the "Kelo Backlash" has been as effective as Bert claims, nor do I agree that his arguments refute my paper. In this post, I will address his claims that the Kelo backlash headed off a preexisting trend towards an increase in eminent domain abuse and that most post-Kelo laws have been effective. His more specific critique of my analysis of the Wisconsin and South Carolina reform laws is probably of lesser interest to VC readers, and I may address it in a later separate post if time permits.

I. Did the Kelo Backlash Head off a Preexisting Negative Trend in Eminent Domain Law?

Bert argues that "[e]ven 'weak' reforms have helped hold the line against a Kelo-driven worsening of state laws." I agree with Bert that, in most states, pre-Kelo eminent domain law was a terrible deal for property owners. However, there is little evidence that things were getting worse after Kelo than they had been before. Bert claims that the Kelo decision itself emboldened state and local governments to condemn more property than previously. However, Kelo did not give condemning authorities more discretion than they enjoyed under previous US Supreme Court precedent. Before Kelo, the leading case in this field was Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), which allowed government to undertake any condemnation that was "rationally related to a conceivable public purpose," without any need to prove that the "purpose" would actually be achieved. Midkiff, 467 U.S. at 241. It is difficult to imagine a more permissive rule than this one, and in fact Kelo did not establish a more permissive new standard. Indeed, as I argue in this article, Kelo may have very slightly increased protection for property rights relative to the virtual blank check for takings endorsed in Midkiff.

That doesn't prove that Kelo was rightly decided, as some of the decision's defenders claim. Consistency with precedent is no virtue if that precedent itself is deeply flawed, as Midkiff was; in Kelo, the Supreme Court wasted an opportunity to cut back on the abuse of constitutional property rights sanctioned by its earlier mistaken holdings. For that, the decision deserves severe criticsm. However, Kelo did not begin a new negative trend that the political backlash against it somehow headed off.

As evidence that Kelo did lead to a new negative trend, Bert claims that the decision caused an increase in condemnations, citing this IJ study. The study claims that Kelo opened the "floodgates" to new condemnations, and does indeed document a large number of dubious post-Kelo takings. However, its methods rely heavily on press accounts for data, and it is likely that abusive condemnations received far more press coverage after Kelo focused attention on the issue than before. I suspect that the new IJ study reflects increased press coverage of eminent domain abuse more than an increase in the incidence of abuse itself. Since Kelo did not give state and local governments any more power than they had before, this is a more likely explanation than Bert's argument. It is theoretically possible that state and local officials expected the property owners to lose in Kelo and therefore were restraining themselves until their side won an unexpected victory. However, prior to Kelo, most experts expected the government to win, and the most surprising aspect of the decision was not the outcome but the narrowness of the 5-4 margin.

In sum, if Bert wants to demonstrate the effectiveness of post-Kelo reform, he must prove that the new laws have meaningfully restricted the pre-Kelo powers of condemning authorities. The new laws almost certainly did not prevent a Kelo-inspired trend towards greater use of condemnation, because there was probably no such trend in the first place.

II. Do Post-Kelo Reform Laws Effectively Restrict Eminent Domain?

As I explain in my paper, some of the post-Kelo reform laws do indeed effectively curb the power of condemning authorities. By my count, some 15 states have enacted post-Kelo reform laws that I categorize as "effective" in the sense that they either ban Kelo-style "economic development" takings or significantly restrict them relative to preexisting law (see Table 4 in my paper). On the other hand, some 20 states and the federal government have enacted ineffective reforms that impose virtually no new restrictions on the power to condemn property, and 14 have enacted no reforms at all. Bert claims that:

17 reforms narrow the definition of "blight," or in the cases of Florida and South Dakota, eliminate “blight” condemnations for private development – an important change since, in most states, Kelo-style takings occur through the use of "blight” designations. Also, 17 reforms require “blight” to be designated on a property-by-property basis rather than an area-wide one . . . Moreover, several reforms shift the burden of proof in condemnation actions from owners to condemning authorities.

Because Bert doesn't identify the states he has in mind (with the exception of Florida and South Dakota), it is difficult to assess these claims or even to tell whether he is actually disputing my conclusions or not. Florida and South Dakota did indeed pass two of the most sweeping post-Kelo reform laws in the country, and I point this out in my paper (pg. 26). It is also true that many post-Kelo reform laws "narrow" the definition of "blight"; "blight" designations are a prerequisite to one type of often-abused condemnation. However, a "narrower" definition of blight is not a meaningful restriction on eminent domain if the new definition is still broad enough to encompass virtually any property. As I discuss in detail in my paper (pp. 15-20), in some 15 states that have passed post-Kelo reforms, the new definition of blight is either exactly the same as the old or still broad enough to render virtually any property the government might choose to seize "blighted." Similarly, requiring blight to be designated on a "property by property" basis has little value if virtually any property can still be so designated. Shifting the burden of proof to the government will have little effect if what the government needs to prove is extremely easy to demonstrate. Under the broad definitions of blight retained in many state post-Kelo laws, all that the government need show is that the area in question is an obstacle to "sound growth" or a "social or economic liability," both of which can be said for virtually any property if the government has a proposed use for the property that might increase growth or otherwise benefit the local economy.

Bert also argues that if several states now considering new post-Kelo reform measures pass effective laws, the situation will greatly improve. That may well be true, but many effective post-Kelo reforms have either been watered down or completely rejected by state legislatures in the past. It would be unwise to count our chickens before they hatch, which is why I restricted my analysis to laws that have actually been enacted. Finally, Bert notes that three of the four states with the most private-to-private condemnations between 1998 and 2002 have passed effective reforms. This is true, in so far as it goes, and I noted it in in my paper (Table 5, pg. 13). However, one of those three states (Pennsylvania) has significantly watered down its reform by exempting condemnations taking place in Philadephia and Pittsburgh for the next five years; these are the cities where most of Pennsylvania's Kelo-like takings in fact occur (ibid., pp. 27-28). Michigan's new law to a large extent builds on a 2004 earlier court decision that had already forbidden "economic development" takings (though it does make improvements in other areas). Thus, these two laws represent only modest improvements, though they are significant enough to count as "effective" under the generous coding rules I adopted in my paper. Even more importantly, as I summarized in Table 5 of the paper, 14 of the 20 states that, according to an IJ study, had the highest incidence of abusive condemnations in 1998-2002 have adopted ineffective reform laws or none at all. The same is true of 15 of the 20 states with the largest numbers of "threatened" condemnations (ibid., pg. 44).

III. Areas of Agreement.

I end on a more positive note. Bert and I probably agree on more than we disagree. Depending on how one interprets his statements, it is possible that we actually agree on the quality (or lack thereof) of post-Kelo laws in the vast majority of states. Bert also has not disputed my criticism of the flawed reforms enacted by the federal government, such as President Bush's ineffectual executive order on takings. Finally, we agree that Kelo was a terrible decision and that property rights advocates should pursue both legislative and judicial remedies for the situation. Pre-Kelo federal public use law was so bad that there was nowhere to go but up; and the same was true in many states. And we have indeed moved up since Kelo. At the same time, there has been a lot less progress than many expected in the wake of Kelo's massive unpopularity across the political spectrum. My paper documents this shortfall, and tries to explain it.

My friends at IJ worry that reform advocates might give up the fight if it seems hopeless. In my view, we should be at least equally concerned that people will give up because they wrongly assume that the problem has been solved by "reforms" that actually have little or no effect.

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Bert Gall of the Institute for Justice Presents an Optimistic Take on Post-Kelo Eminent Domain Reform:

The Institute for Justice, the outstanding libertarian public interest law firm that litigated the Kelo case, has a more optimistic view of post-Kelo eminent reform than I do. They have sent me this analysis by IJ attorney Bert Gall, which criticizes my paper on post-Kelo reform for being too pessimistic. In the interest of promoting debate on this important issue, I have agreed to post Bert's piece. I will reply in my next post, and allow Bert to post a rejoinder, if he so chooses. Here it is:

The Kelo Backlash: A Strong, and Continuing, Response to a Terrible Decision

The Institute for Justice represented Susette Kelo and her neighbors in Kelo v. City of New London. Since the Supreme Court handed down its now-infamous decision in that case, the Institute has, in addition to litigating several new eminent domain challenges, worked with legislators on eminent domain reform, and has monitored closely and analyzed legislative developments. What is absolutely clear is that the Kelo backlash has, in a very short period, achieved significant and substantive results in the political arena. Unfortunately, Ilya's overly pessimistic assessment of those results lacks both completeness and a sense of perspective; as a result, it is skewed in such a way that conforms to, rather than tests, his hypothesis about "political ignorance."

With this post, I want to highlight the real-world legislative results of the Kelo backlash. A complete, up-to-date, tally of reforms shows that, since Kelo, eminent domain reform has been passed in 34 states. Of the reforms that have passed, most have made substantive improvements in state law that will provide a real benefit to home and business owners. (While citizen-sponsored initiatives have been very important, the vast majority of good reforms originated with legislatures.) For example, 17 reforms narrow the definition of "blight," or in the cases of Florida and South Dakota, eliminate “blight” condemnations for private development – an important change since, in most states, Kelo-style takings occur through the use of "blight” designations. Also, 17 reforms require “blight” to be designated on a property-by-property basis rather than an area-wide one. (Since the condemnations in Kelo were not for “blight,” it’s not clear what effect a favorable decision in the case would have had on those laws.) Moreover, several reforms shift the burden of proof in condemnation actions from owners to condemning authorities. Anyone who has litigated an eminent domain case knows that all these kinds of changes represent dramatic improvements for home and small business owners facing the threat of condemnation. Ilya, who has written several excellent amicus briefs opposing the use of eminent domain for private development, surely appreciates the difference that these changes make in the kinds of arguments governments and property owners can make.

Any judgment on the effectiveness of legislative reform in Kelo's wake must be tempered by perspective. That is, one must ask, "What was state law like before Kelo, where is it now, and where is it going?” Before the Kelo backlash, the legal environment in most states was extremely hostile to property owners facing eminent domain for private development. The Kelo decision – in which the Supreme Court held for the first time that economic development is a public use, thereby eviscerating the public use clause of the Fifth Amendment – threatened to make things even worse. Indeed, the practical effect of Kelo for many local governments was for them to accelerate, successfully, the pace of eminent domain abuse before reforms were passed. (That fact doesn’t square with Ilya’s remarkable assertion that Kelo “may have represented a slight tightening of judicial scrutiny of public use issues . . . .”) But, now, the legal environment is much better for property owners in most states. Even “weak” reforms have helped hold the line against a Kelo-driven worsening of state laws. And more strong reforms appear to be on the way. For example, although they failed to pass good reforms last year, Virginia and New Mexico appear on the verge of enacting strong reform legislation, and good legislation is making its way through the state legislatures of Ohio and Texas. All four of these states, along with other states like Alabama – which initially passed weak reform, but then strengthened it – illustrate that there can be more than one bite at the legislative apple for proponents of reform. If the aforementioned reforms go through, 6 of the 8 states with the most private-to-private condemnations from 1998 through 2002 will have good eminent domain reforms; as it stands, 3 of the top 4 already do.

Applying a sense of perspective, and a closer look, makes Ilya's conclusions about several pieces of legislation questionable. Time and space constraints prevent a state-by-state critique, so two examples will have to suffice here. First, South Carolina's constitutional amendment, which was approved by the voters after being sent to them by the legislature, provides some of the strongest defenses against eminent domain abuse in the country. Yet Ilya labels it "ineffective," even though the amendment states that eminent domain may not be used for the purpose or benefit of economic development. More importantly, it requires that “blight” designations must be on a property-by-property basis, and very narrowly defines "blight" as property that both (1) meets certain conditions and (2) as a result of those conditions, poses a threat to the safety and health of the community. Even if there is wiggle room in the first prong of the requirement, there is none in the second. (Notably, Ilya does not argue that “safety” could be interpreted broadly.) Thus, South Carolina voters and the legislature have passed a strong constitutional amendment. Ilya also labels the Wisconsin legislation "ineffective," but it is certainly a vast improvement over where the law stood before because it does protect the owners of single-family homes from bogus "blight" condemnations. Of course, it would have been better for all multi-family homes and businesses to be included, but the protection the legislation provides for the owners of single-family homes is, as Ilya concedes, considerable. And that protection, now that it has been established for single-family residential properties, may very well be extended to all multi-family residences and businesses in the future. Thus, an "ineffective" label is unfair.

In sum, post-Kelo reform efforts have been far more successful than Ilya recognizes. When Kelo was handed down, many people's initial reaction was despair. After all, as Justice O’Connor wrote in her dissent, “The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.” But despair gave way to a powerful backlash that has, in less than two years, improved legislative protections against eminent domain abuse in most states. (It has also led to widespread public revulsion at private takings, as well as two state supreme court decisions that have explicitly rejected the Kelo holding – plus two more that question it). To be sure, more must be done so that every American is protected. States without reform need to act, and many states need to improve their reforms. In states, like New Jersey, where governments remain on an eminent domain binge and reform is a long-term proposition, litigation must continue. But the large amount that's been accomplished so far, as well as the good work that's being done right now, should not be obscured by an analysis that is informed more by theory and pessimism than reality.

Bert Gall is a senior attorney at the Institute for Justice, where he litigates eminent domain abuse cases on behalf of home and small business owners.

NOTE: For the benefit of conflict of interest mavens, I have documented my own connections to the Institute for Justice in previous posts. See, e.g., here.

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Tuesday, April 3, 2007

An Unintentionally Ironic Defense of Norman Finkelstein:

Norman Finkelstein, a professor at DePaul University most famous for his vigorous (and some would say vicious) attacks on what he terms "the Holocaust Industry," has been recommended for denial of tenure by a DePaul dean, after winning departmental approval. I don't know enough about the specifics of the case to comment on the potential tenure denial, but I do know some good irony when I see it.

Inside Higher Ed notes, correctly, that while calling leading Holocaust scholars "hoaxters and huxters" and "criticizing people who invoke the Holocaust to justify political positions, he constantly identifies his parents [I've only seen him refer to his mother, as in this post] as Holocaust survivors."

But that's old hat. Peter Kirstein, a professor at Saint Xavier University and Illinois AAUP official, is apparently one of Finkelstein's most vocal supporters. The title of his blog post on the issue? "Exclusive: Norman Finkelstein, DePaul Scholar and Son of Holocaust Survivors, Struggles for Tenure." The reference to him being the son of Holocaust survivors is completely gratuitous, and is being used to justify Kirstein's strongly held political view that Finkelstein is a mensch who deserves tenure. You can't make this stuff up.

UPDATE: David French has more on the Finkelstein matter over at Phi Beta Cons.

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Guiora on Interrogating Detainees:

My (soon-to-be-former) colleague Amos Guiora has a new paper on "Interrogation of Detainees: Extending a Hand or a Boot?" in which he makes the case for clearer interrogation guidelines and greater protection of detainees in the coercive interrogation context. Given Amos' extensive real-world counter-terrorism experience, his work is always worth reading, and often quite thought-provoking. He will be missed at Case.

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More Mass v. EPA Commentary:

For those who want more commentary on the Supreme Court's decision in Massachusetts v. EPA, I have an op-ed-style commentary about the case on National Review Online.

For those who want still more, SCOTUSBlog is posting commentary and analysis by various folks. Among those up so far are posts by Mark Moller of the Cato Institute and Tim Dowling of Community Rights Counsel. Although my sympathies are with Mark, I lean toward Tim's assessment of the practical implications of the case. CRC has also launched a "warming law" blog here.

UPDATE: Want still more on the case? Here are some worthwhile reads:

Grist's David Roberts has also posted this excerpt about the case from yesterday's White House press briefing.

ANOTHER UPDATE: Jonathan Weiner at the UChicago Faculty blog and Roger Alford on Opinio Juris.

Related Posts (on one page):

  1. Justice Stevens' Scientific Mistake:
  2. More Mass v. EPA Commentary:
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Privatization and the Law and Economics of Political Advocacy:

As I noted in a recent post, I'm delighted to be publishing my article, Privatization and the Law and Economics of Political Advocacy, with the Stanford Law Review. (Those of you who want to read something more technical can check out my economics paper on the subject, Privatization, Free-Riding, and Industry-Expanding Lobbying.) This will be the first of a series of blog posts summarizing the paper. Comments are welcome, as the paper won't be published until next year.

* * *

Over 90 years ago, opponents of World War I alleged that “munitions manufacturers frighten the popular mind with the fear of imaginary external enemies and inflame it with murderous patriotism.” According to Stefan Zweig, the war began only when “newspapers in the pay of the arms manufacturers began to whip up sentiment against Serbia.” After the war, that accusation morphed into the charge that arms makers were self-interestedly obstructing peace efforts. Today, an opponent of U.S. military policy characterizes defense contractor CACI International Inc, whose chairman speaks publicly of the “heinous[ness],” “fanatical horror,” and “barbarism” of terrorism, as “one of the most unabashed corporate backers of Bush’s foreign policy and a key supporter of the military campaigns in Iraq and Afghanistan.” Critics also charge that private military interests affect what weapons systems we rely on and what alliances we enter into, and that, in some countries, those interests may even take over the government.

This theme—that private contractors use their influence to advocate not just privatization but also, insidiously, changes in substantive policy—sweeps more broadly than just defense contractors. The following list gives a sense of the generality of the accusation; the last few items illustrate that the critique comes from “the right” as well as from “the left.”

In this Article, I examine this “political influence” challenge to privatization using the case study of private prisons. I conclude that, in the prison context, there is at present no reason to credit the argument. At worst, the political influence argument is exactly backwards, by which I mean that privatization will in fact decrease prison providers’ pro-incarceration influence; at best, the argument is dubious, by which I mean that whether it is true or false depends on facts that proponents of the argument have not developed.

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Things That Annoy Me, Part CCXLIV -- "In and of Itself":

Blecch. Yes, it's an established idiom; I'm not saying it's wrong in some semantic or grammatical way. But "say it with extra prepositions," or for that matter "say it with clichés," is not the key to good writing. "By itself" or "itself" is almost always an adequate substitute; the "in and of" is just empty verbiage. Cut it out.

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Duke Energy -- The Other Clean Air Act Case:

Massachusetts v. EPA was not the only Clean Air Act decision handed down yesterday. In a second decision, Environmental Defense v. Duke Energy, the Supreme Court waded into the ongoing controversy over "New Source Review," specifically when modifications to existing power plants and industrial facilities trigger costly upgrades in emission control technology.

Some hoped or expected the Supreme Court would put an end to NSR litigation, clarifying once and for all the scope of the Clean Air Act's relevant provisions, but this was not to be. Duke Energy is an extremely narrow opinion. A unanimous Court overturned the Fourth Circuit's opinion, rejecting its the argument that the EPA must define what constitutes a plant "modification" consistently throughout all relevant regulatory programs, but it did little else. (Justice Thomas wrote a separate opinion concurring in part rejecting a portion of the Court's reasoning, but not disputing the end result.) The court explicitly left untouched Duke Energy's other arguments against the EPA's enforcement actions, and it failed to address an interesting jurisdictional issue that some thought prompted the Court to hear the case in the first place.

What this means is that NSR litigation will continue, at least until the remaining cases are settled or Congress finally reforms the program. There is little dispute that certain portions of Clean Air Act are woefully out-of-date and effectively lock-in older, more polluting facilities. Yet the EPA lacks the statutory authority to rewrite the relevant NSR provisions unilaterally (though the Bush Administration has tried), and there is no consensus in Congress, as of yet, about how to proceed. So don't be surprised if the Supreme Court is once again petitioned to consider NSR in the years ahead.

David Rivkin, who authored the law professors' amicus brief in which I participated, has more thoughts on SCOTUSBlog here. I previewed the case here.

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Bar/Bri Parody: A pretty funny segment, from the 2006 UVa Law parody show. Thanks to Matt Bodie for the link.
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Law School Deans and the U.S. News Rankings: Over at The Conglomerate, Gordon Smith offers evidence that law school deans really do value the U.S. News rankings -- at least when their schools do particularly well.
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Monday, April 2, 2007

From Now on, I'm Sticking With Amazon:

I've been having a problem with Buy.com, and here's what's really irritating: I send them an email, then send me an email back requesting specific information, which was already in the original email. I send another email providing the information once again, and get another email that clearly reflects the fact that my latest email also wasn't read with any care. They do provide a customer service number for follow up, but that requires waiting on hold, well, forever.

The only problem with Amazon is that many products are no longer available directly through Amazon, but only through a third-party seller working with Amazon. This means I'm not "eligible for free SuperSaver shipping" and have to rely on a company I'm not familiar with. But lately, if Amazon does carry whatever product I need, I buy from it; I've also had good experiences with Amazon, including in the rare instances when I've had to call or email customer service to resolve problems.

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Paying the Dane-Geld, with Enthusiasm:

A commenter on the thread about the UK schools that "avoided selecting the Holocaust as a topic for GCSE coursework for fear of confronting anti-Semitic sentiment and Holocaust denial among some Muslim pupils" and "deliberately avoided teaching the Crusades at Key Stage 3 because their balanced treatment of the topic would have directly challenged what was taught in some local mosques" writes:

Are these schools being oversensitive out of mere PC, or out of a fear (justified or not) of violent reprisals from Muslims? That is a big distinction that neither the BBC article nor Cramer's blog explores. (Keep in mind that during the height of the "Motoons" controversy, some newspapers not only refused to publish the cartoons, but openly admitted that they only did so out of fear of a violent backlash.) If the schools have reason to believe that teaching certain things might provoke violent responses from certain quarters, they might reasonably make student and faculty safety the higher priority than a "fair and balanced" curriculum.

If that's the case, it's sad that events in the UK have reached the point where schools are forced to make such choices.

1. If indeed events in the UK have reached the point where schools fear violence from Muslim students not just for displaying the Mohammed cartoons, but for teaching about the Holocaust, and teaching in a balanced way about the Crusades, then how do we unreach that point? I somehow don't think that paying the Dane-geld is the way to deal with the situation, especially when you're trying to teach a new generation, both of Muslim Britons and non-Muslim ones. Maximizing short-term student and teacher safety by taking steps that dramatically undermine long-term national safety (as well as undermining educational quality) is not, I think, "reasonabl[e]."

2. As best I could tell from the report, there is no reason to think that the schools were indeed afraid about "violent responses"; they just didn't want to irritate students and parents, and to create classroom discussions that would require them to publicly condemn certain sentiments on the students' parts. I saw no evidence that talk of the Holocaust, or even a balanced presentation of the Crusade, was really seen as likely to provoke violent reactions. So even if you are eager to surrender to threatened violence, is it too much to ask for at least some evidence that violence is indeed being threatened?

Related Posts (on one page):

  1. Paying the Dane-Geld, with Enthusiasm:
  2. From a U.K. Government Report:
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Justice Scalia's Unsatisfying Dissent:

I found Chief Justice Roberts' dissent on the standing issue in Massachusetts v. EPA to be quite powerful. There were reasons to believe that the Chief Justice had strong opinions about standing before he joined the Court, and this was confirmed by his opinion. I was not nearly as impressed by Justice Scalia's dissent on the merits. In fact, I was quite disappointed. While I believe there were many powerful arguments to be made against the majority's interpretation of the Clean Air Act, I did not find Justice Scalia's opinion to be particularly compelling.

The first part of Justice Scalia's dissent argues that the EPA should have the discretion to decline to regulate greenhouse gases for reasons even if the scientific evidence were to lead the EPA Administrator to conclude that greenhouse gas emissions "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." Justice Scalia's argument is premised on the assumption that the EPA Administrator should not be required to make a judgment about the risk greenhouse gases may pose, even in the face of a rulemaking petition, unless really explicitly required to do so by Congress. According to Justice Scalia, the EPA had good reasons to not want to regulate greenhouse gases, even if they weren't the sort of reasons suggested by the statutory language. Implicit in the argument is that so long as the EPA provides some reasoned explanation for its decision, those who dislike the decision should seek political rather than judicial remedies.

This argument is of a piece with Justice Scalia's approach to executive power, and his hostility to citizen suits against government agencies, but I do not think it is an accurate reflection of the relevant Clean Air Act provisions. Like it or not, the relevant CAA provisions were intended to be action-forcing, and were designed to require the EPA to act in a particular fashion once certain predicate determinations were made. This is a common feature in many environmental statutes. It may not always lead to sound policy, but that is the choice Congress made.

The second part of Justice Scalia's opinion turned to the antecedent question of whether the EPA had the authority to regulate greenhouse gases in the first place. Here Justice Scalia focused narrowly on the statutory text. While this portion of the opinion made some good points, such as the fact that the term "air pollution" typically refers to concentrations of harmful substances in the ambient (i.e. surrounding) air rather than substances dispersed throughout the atmosphere -- I found the statutory analysis to be somewhat deficient and quite unsatisfying.

Unless one is ready to throw virtually all of the relevant statutory interpretation questions into the EPA's lap under Chevron -- which Justice Scalia seemed prepared to do here -- I think it is necessary to augment any discussion of the statutory text with an analysis of the Clean Air Act's regulatory structure. For example, just as the Court it unreasonable in Brown & Williamson to conclude the FDA could regulate tobacco if this would result in a cigarette ban, the Court could have concluded that it was unreasonable to adopt an interpretation of the CAA that, when applied consistently, would force the EPA to try and set NAAQS for greenhouse gases -- an equally absurd result given the structure and history of the law.

After the oral argument in Mass v. EPA I thought it was possible that if there were four votes to deny the petitioners standing, Justice Kennedy could provide the fifth vote to uphold the EPA's conclusion that it lacked the statutory authority to regulate greenhouse gases. Upon reading Justice Scalia's dissent, however, I can see why it did not convince any Justice who was reluctant to side with the EPA and had not already agreed that the petitioners should lose on other grounds.

Perhaps Justice Scalia did not expand his arguments because he knew he would not have the votes, and addressing the merits was already unnecessary given the his agreement with the Chief Justice's on jurisdiction. Perhaps Justice Scalia thought his conclusions were so obvious that they did not need elaboration, but this is not the way to build a majority on the Court in close cases. A third possibility is simply that Justice Scalia failed to bring his A game to this case. Whatever the reason, this opinion will not join the ranks of my favorite Scalia dissents.

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From a U.K. Government Report:

related to the English primary and secondary educational system:

For example, a history department in a northern city recently avoided selecting the Holocaust as a topic for GCSE coursework for fear of confronting anti-Semitic sentiment and Holocaust denial among some Muslim pupils. In another department, teachers were strongly challenged by some Christian parents for their treatment of the Arab-Israeli conflict and the history of the state of Israel that did not accord with the teachings of their denomination. In another history department, the Holocaust was taught despite anti-Semitic sentiment among some pupils, but the same department deliberately avoided teaching the Crusades at Key Stage 3 because their balanced treatment of the topic would have directly challenged what was taught in some local mosques.

Appalling. I would caution against drawing much by way of general inferences about the English educational system from this, since there will inevitably be bad apples in every large system, and the report doesn't purport to measure the incidence of this sort of behavior. Still, even one such incident is troubling, and merits closer looking into; I do hope the English education establishment is taking this seriously.

Here's the BBC coverage of the report. Thanks to Clayton Cramer for the pointer.

Related Posts (on one page):

  1. Paying the Dane-Geld, with Enthusiasm:
  2. From a U.K. Government Report:
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Unusual Self-Defense Case:

The AP reports:

Darrell Roberson came home from a card game late one night to find his wife rolling around with another man in a pickup truck in the driveway.

Caught in the act with her lover, Tracy Denise Roberson -- thinking quickly, if not clearly -- cried rape, authorities say. Her husband pulled a gun and killed the other man with a shot to the head.

On Thursday, a grand jury handed up a manslaughter indictment -- against the wife, not the husband.

In a case likely to reinforce the state's reputation for don't-mess-with-Texas justice, the grand jury declined to charge the husband with murder, the charge on which he was arrested by police....

Tracy Roberson, 35, could get two to 20 years in prison in the slaying of Devin LaSalle, a 32-year-old UPS employee.

Assistant District Attorney Sean Colston declined to comment on specifics of the case or the grand jury proceedings but said Texas law allows a defendant to claim justification if he has "a reasonable belief that his actions are necessary, even though what they believe at the time turns out not to be true." ...

When Tracy Roberson cried that she was being raped, LaSalle tried to drive away and her husband drew the gun he happened to be carrying and fired several shots at the truck, authorities said.

The incident is a tragedy for the victim and for the husband, and a serious crime on the woman's part; but I don't see why this as a matter of "don't-mess-with-Texas justice." The self-defense (or, to be precise, defense of others) defense is generally available whenever the defender reasonably believed that lethal force was needed to prevent death, serious bodily injury, rape, or kidnapping.

In some states, the defense is broader, for instance applying to defense against robbery, or applying even when the belief is unreasonable but sincere (in such cases, it would generally lower a murder charge to involuntary manslaughter or negligent homicide). But in all states, defending someone with lethal force based on reasonable belief that the force is needed to prevent or interrupt a rape would be a full defense. I know of no states in which actual necessity for defense, as opposed to a reasonable belief in the necessity for defense, is required.

Nor is there any quintessentially "don't-mess-with-Texas justice" about the application of this defense to the facts, at least given the facts as described in the news story. It is eminently reasonable to trust a person's claim that she's being raped (at least absent some special knowledge on the defendant's part that his wife is somehow exceptionally likely to lie), especially when immediate reaction is required. And while one can always second-guess a decision like this after the fact, the law recognizes (in Justice Holmes' words) that "Detached reflection cannot be demanded in the presence of an uplifted knife": When your wife is shouting that she's being raped, and she's in a pickup truck that the alleged rapist is driving away in response, the law can't reasonably condemn you for believing that shooting at the truck is necessary to protect her.

The woman, on the other hand, is likely guilty of criminally negligent homicide, on the theory that she behaved in at least a grossly negligent way that jeopardized her lover's life -- especially likely if she knew that her husband sometimes carried a gun -- and possibly of manslaughter, on the theory that she was actually aware of a substantial and unjustifiable risk that she was jeopardizing her lover's life. (I rely here on the Texas Penal Code § 19.02 categorization of homicide, which generally tracks the Model Penal Code but apparently does not allow a "depraved heart" murder theory outside the felony-murder context.)

Thanks to Clayton Cramer for the pointer.

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Thank You Notes:

Law professors routinely thank lots of people in their thank-you notes (generally the introductory footnote that also mentions the author's affiliation, e-mail address, and the like). I've often heard the argument that authors try to use these thank-you's to impress readers, and especially law review editors: Citing lots of Big Guns in the thank you note, the theory goes, allows the author to shine in the Big Guns' reflected glory, on the theory that if the author thanks Akhil Amar, Charles Fried, and so on, he must be at least a Medium-Sized Gun himself.

I've always been skeptical of that theory, which strikes me as unduly cynical. I have nothing against cynicism if it's justified, but here I don't see much of a justification. A thank-you note doesn't show that the thanked people read the article, or even that they know the author well. If you go up to Amar or Fried or nearly any other scholar at a conference and ask them a brief question related to your research interests, they're likely to answer it: It's the polite thing to do, plus most scholars are genuinely interested in answering listeners' questions, and flattered to be asked for advice. And if the answer is helpful, then the author could (and even should) thank the answerer for the help.

So the thank-you note reflects nothing other than that the author has gotten some small help from the person being thanked. Readers know that, and authors know that readers know that, so there is little reason to think that authors are including the thank-you's to impress readers.

But there are of course two other reasons for the long thank-you's: First, thanking someone who has helped you, even slightly, is the right thing to do; and even if it's not clear that the help was more than de minimis, we are usually (and sensibly) taught to err on the side of thanking too many people than thanking too little.

Second, if you don't thank someone, you risk their being annoyed by the absence of thanks; and even if you think they didn't help you much, they may well remember the matter differently. Most people, especially the Big Guns, aren't going to care about whether they're thanked (except when they've contributed a great deal), and many aren't even going to remember that they talked to the author about the subject. But if there's even a small chance that failing to thank people will annoy them, it's again safer to err on the side of overthanking rather than underthanking.

So no need for cynicism here, I think: Though article authors will do lots of things to impress readers and law review editors, thanking others is so unlikely to be impressive that I doubt that it's being done (even partly) to impress. Good manners and fear are quite adequate to explain the presence of the practice.

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Federalist Society Online Debate on Abortion and the Constitution:

The Federalist Society has long been very good at providing balanced and thoughtful debates at its conferences; it now extends that tradition to a debate blog (The Federalist Society Online Debate Series). The first installment is on abortion and the constitution; here's the introduction:

This term, the Supreme Court will decide two cases, Gonzales v. Planned Parenthood and Gonzales v. Carhart, challenging the constitutionality of the Partial-Birth Abortion Ban Act, passed by Congress and signed by President George W. Bush in 2003. The act prohibits a doctor from performing a partial birth abortion unless the pregnant woman’s life is in danger.

Lower courts have overturned the statute on the grounds that the term “partial birth abortion” does not clearly define the procedure prohibited by the statute and that Congress failed to include an exception for the mother’s health (the ground on which the Supreme Court struck down a similar Nebraska law three years earlier in Stenberg v. Carhart). The government argues the act is constitutional because it explicitly bans a particular procedure and because congressional findings collected since the Stenberg case show the procedure is never medically necessary to protect the health of the mother.

Given the replacement of former Justice Sandra Day O’Connor – a majority voter in the 5-4 opinion invalidating the Nebraska statute – with now-Justice Samuel Alito, it is uncertain how the Court will rule on this particular issue, as well as how its ruling will affect the broader Roe-Casey framework. This debate seeks to further discussion on the important issues underlying what is perhaps the most hotly contested subject in American law and policy and explores the implications of the reasoning behind the opposing arguments.

Ms. Long, former law clerk to Supreme Court Justice Clarence Thomas and litigation partner at Kirkland & Ellis, is currently serving as counsel to the Judicial Confirmation Network. She argues that Roe is anachronistic because it fails to take into account scientific discoveries about fetal pain and modern advances in medicine that move viability earlier, and she contends that, at the very least, the Court should clarify its required "health exception" so it does not swallow any rule against third trimester abortions. She [argues] the increased safety justification for partial birth abortion is a false one because “if partial-birth abortion is safer because the child isn’t dismembered in the womb, it would be safer still to deliver the child intact and then kill her outside the womb” and seeks to demonstrate that women are victimized rather than empowered by a liberal abortion regime.

Ms. Brown, former Assistant U.S. Attorney and director of the first Reproductive Rights Unit of the Civil Rights Bureau of the New York State Attorney General’s Office, is a longtime feminist advocate who currently serves as Vice President and Legal Director of Legal Momentum. She disagrees with Ms. Long’s characterizations and argues that the current constitutional protections for abortion are necessary to avoid the government imposing upon women its own view of what their role should be. She contends that, “[f]or the tens of millions of women who have had an abortion -– about one in three American women -– the Constitution’s protection has allowed them to make that decision with dignity and safety . . . free from the ‘compulsion of the State.'” She also takes issue with Ms. Long’s suggestion that the current law gives abortion doctors “unfettered discretion” in performing third trimester abortions, pointing out that they are “extremely rare” and that abortion doctors already bear unnecessary risks of penalties for seeking to enable women to live fuller lives.

Click here for the whole thing.

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Is Mass v. EPA "SCRAP for a New Generation"?

In his dissent, Chief Justice Roberts argues that the standing analysis adopted by the Court's majority in Massachusetts v. EPA "recalls the previous high-water mark of diluted standing requirements, United States v. Students Challenging Regulatory Agency Procedures (SCRAP)." In this 1973 opinion, the Supreme Court found standing for an environmental group to challenge an increase in railroad shipping costs because this would increase recycling costs and thereby increase litter in local parks. Roberts writes:

Over time, SCRAP became emblematic not of the looseness of Article III standing requirements, but of how utterly manipulable they are if not taken seriously as a matter of judicial self-restraint. SCRAP made standing seem a lawyer’s game, rather than a fundamental limitation ensuring that courts function as courts and not intrude on the politically accountable branches. Today’sdecision is SCRAP for a new generation.
While I am not sure the bases for standing asserted by the petitioners in Mass v. EPA are more tenuous than those asserted by the plaintiffs in SCRAP, I think Chief Justice Roberts is correct that the Court's majority opinion lowered the bar for standing claims in some important respects.

First, Justice Stevens' majority opinion stresses "the special position and interest of Massachusetts" in the case. Justice Stevens writes that 'It is of considerable relevant that the party seeking review here is a sovereign State and not, as it was in Lujan, a private individual," and that courts should show a "special solicitude" to state standing claims. Why? Because states "are not normal litigants for the purposes of invoking federal jursidiction" because they may seek to protect "quasi-sovereign interests." The only real support for this cited by Justice Stevens is the 1907 case of Georgia v. Tennessee Copper. While the Supreme Court recognized that states have important "quasi-sovereign" interests in the lands of its citizens, and that they may sue on behalf of their citizens, this case did not involve Article III standing, nor did it suggest that the injury requirement should be lessened when a state is involved. Whether the majority wishes to acknowledge it or not, I think its opinion creates a special, lowered standing threshold for states seeking to challenge federal regulatory actions (or inaction).

Justice Stevens' majority opinion also takes steps to loosen the standing requirements where Congress has authorized citizen suits to force agency actions. Justice Stevens notes that because the case concerns statutory construction, it involves "a question eminently suitable to resolution in federal court," so many of the normal justiciability concerns are absent. Justice Stevens further empahsizes language from Lujan to the effect that

a litigant to whom Congtress has 'accorded a procedural right to protect his concrete interests' . . . 'can assert that right without meeting all the normal standards for redressability and immediacy.' . . . When a litigant is vested with a procedural right, that litigant has standing if there is somepossibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.
While this specific passage quotes a footnote from Justice Scalia's majority opinion in Lujan, much of the relevant discussion in Justice Stevens' opinion draws upon (and repeatedly quotes) Justice Kennedy's Lujan concurrence, including his statement that "Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before." In this way, I think the court's opinion further dilutes the standing requirements as articulated in Lujan.

As readers know, I participated in an amicus brief for the Cato Institute and several law professors arguing against standing in this case, so I find the Chief Justice's dissent more agreeable than the standing analysis in Part IV of Justice Stevens' opinion. Setting aside who is correct, my point in this post is that there is language and reasoning in Justice Stevens' opinion that future litigants will rely upon to establish cases in future challenges to federal agency (in)action, and that state litigants may be the primary beneficiaries of this latest twist in the law of standing.

More on the merits later.

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Did EPA's Own Actions Compromise Its Climate Case?

I have long beleived that one problem for the U.S. EPA's position in Massachusetts v. EPA was that it was difficult to square the federal government's litigating position with various statements, reports, and actions taken by the federal government related to climate change. Particualrly insofar as the case boiled down to whether the EPA could reasonably conclude that greenhouse gases pose a sufficent risk to justify regulation under the Act.

Under Section 202(a)(1), the EPA is required tp regulate automotive emissions of air pollutants that "in his [the EPA Adminsitrator's] judgment cause, or contribute to, air pollution which may reasonably be anticiapted to endanger public health or welfare." Whatever one thinks of climate change, it is indisputable that the EPA, and other federal agencies, have issued statements about the risks of climate chagne for years. This was not lost on the majority in Massachusetts v. EPA. As Justice Stevens wrote for the Court:

We moreover attach considerable significance to EPA’s“agree[ment] with the President that ‘we must address the issue of global climate change,’” 68 Fed. Reg. 52929 (quoting remarks announcing Clear Skies and Global Climate Initiatives, 2002 Public Papers of George W. Bush, Vol. 1, Feb. 14, p. 227 (2004)), and to EPA’s ardent support for various voluntary emission-reduction programs, 68 Fed. Reg. 52932. As Judge Tatel observed in dissent below, “EPA would presumably not bother with such efforts if itthought emissions reductions would have no discernable impact on future global warming.” 415 F. 3d, at 66.
This quote (on page 23) comes from Justice Stevens discussion of standing, but it is signficiatn nonetheless. At the end of the day, I believe it was difficult for the Court to credit some of the EPA's arguments given other things the EPA and other federal agencies were saying, and had been saying for years.

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Today's Big Environmental Decisions:

Today was Clean Air Act day at the Supreme Court, as the justices issued two long-awaited opinions in cases involving the scope of the EPA's power under the Clean Air Act.

The marquee case was Massachusetts v. EPA, in which the Court held, 5-4, that (a) states have standing to sue the EPA alleging injuries from climate change, (b) the EPA has the authority to regulate greenhouse gases as "pollutants" under the Clean Air Act, and (c) the EPA did not adequately justify its decision not to regulate greenhouse gas emissions from motor vehicles under the Act. On remand, the EPA must ground its decision whether to regulate greenhouse gas emissions on the nature and magnitude of the risk posed by climate change, as the CAA requires.

As longtime readers know, I disagree with the Court's first two conclusions. I do not believe that the petitioners had standing (as argued by Chief Justice Roberts in his dissent), nor do I believe that Congress delegated the EPA authority to regulate greenhouse gases. Given that the Court concluded otehrwise on these two points, however, I think it is very difficult to argue, as the EPA did, that the EPA declined to exercise its regulatory authority on statutorily permissible grounds. I will have more to say about the case once I've had a chance to read all of the opinions.

The Supreme Court also issued its opinion in Environmental Defense v. Duke Energy unanimously siding with the EPA's interpretation of the New Source Review provisions of the Clean Air Act. I blogged about the case here, and I hope to have more to say about this case later today as well.

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Supreme Court Decides "Global Warming" Case: The Supreme Court handed down its decision in the "global warming" case, Massachusetts v. EPA, and it looks like a significant victory for environmental interests. Stevens managed to keep Kennedy on board, so it was a 5-4 ruling that will make the EPA go back and reconsider the petition to regulate greenhouse gases.

  There were two forceful dissents filed in the case. Chief Justice Roberts dissented on standing, joined by Scalia, Thomas, and Alito. Justice Scalia dissented on the merits, joined by Roberts, Thomas, and Alito.

  I'll let others with more expertise offer commentary on the major issues in the case, but there's one minor side issue that I found somewhat amusing. In his majority opinion, Justice Stevens relies in part on a 1907 case for his view that the presence of a state in litigation alters the standing thresholds. Chief Justice Roberts objects to this in his dissent, and Justice Stevens inserted a footnote in the majority opinion with this response to Roberts:
THE CHIEF JUSTICE accuses the Court of misreading Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907), see post, at 3–4 (dissenting opinion), and “"devis[ing] a new doctrine of state standing,"” id., at 15. But no less an authority than Hart & Wechsler’'s The Federal Courts and the Federal System understands Tennessee Copper as a standing decision. R. Fallon, D. Meltzer, & D. Shapiro, Hart & Wechsler’s The Federal Courts and the Federal System 290 (5th ed. 2003). Indeed, it devotes an entire section to chronicling the long development of cases permitting States “"to litigate as parens patriae to protect quasisovereign interests—i.e., public or governmental interests that concern the state as a whole."” Id., at 289.
Chief Justice Roberts responds:
The Court seems to think we do not recognize that Tennessee Copper is a case about parens patriae standing, ante, at 17, n. 17, but we have no doubt about that. The point is that nothing in our cases (or Hart & Wechsler) suggests that the prudential requirements for parens patriae standing, see Republic of Venezuela v. Philip Morris Inc., 287 F. 3d 192, 199, n. (CADC 2002) (observing that “parens patriae is merely a species of prudential standing” (internal quotation marks omitted)), can somehow substitute for, or alter the content of, the “irreducible constitutional minimum” requirements of injury in fact, causation, and redressability under Article III. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
  Does anyone with the latest edition of Hart & Wechsler handy want to weigh in?
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Sunday, April 1, 2007

The California League of Cities' Deceptive Eminent Domain "Reform" Referendum Initiative:

The California League of Cities is trying to get an eminent domain "reform" referendum initiative on the ballot. In my comprehensive analysis of post-Kelo eminent domain reform enacted so far, I show that reforms enacted by referendum have generally been much stronger and more effective than those enacted by state legislatures. Unfortunately, the CLC initiative seems intended to give the appearance of promoting reform without actually limiting the government's condemnation power in any way. Obviously, the California local governments that belong to the CLC have an obvious interest in blocking efforts to constrain their authority to condemn private property for whatever purposes they see fit. With this Trojan horse initiative, the CLC probably hopes to stave off referendum initiatives proposed by property rights advocates that might actually give property owners meaningful protection. Section 9 of the initiative (which can be read here) explicitly states that, if enacted, the CLC initiative should be interpreted to superseded any other eminent domain reform initiative enacted at the same time if the two conflict, so long as the CLC proposal gets a higher number of votes than its competitor. Since pro-condemnation forces would campaign against any rival initiative, while leaving the CLC proposal effectively unopposed, it is likely that the CLC's brain child would indeed get more votes than any rival initiative, even though both would probably pass. Tim Sandefur of the Pacific Legal Foundation has all the other gory details about the CLC's proposal in three excellent posts here, here, and here.

As Tim shows, the CLC initiative protects only owner-occupied residences against condemnation for transfer to "private persons," while leaving renters and small businesses completely unprotected. And even the protection for homeowners is largely meaningless because the text of the proposed law 1) allows the condemnation of owner-occupied homes if it is "incidental" to a "public" project, and 2) seems to enshrine into law the definition of public use adopted by the Supreme Court in the Kelo decision, which gives government nearly unlimited power to condemn property for "economic development" purposes. Tim also points out that the ban on condemnation of owner-occupied homes for transfer to "private persons" could easily be circumvented by declaring that the new owners of any condemned property are in fact "public persons" rather than "private" ones, by virtue of a business-government partnership to promote economic development in the area.

When I presented my paper on post-Kelo reform at Northwestern Law School a few weeks ago, one of the participants in the workshop asked me why pro-condemnation interest groups had not sponsored their own post-Kelo referendum initiatives to counteract those proposed by property rights groups by giving the public the illusion of reform without the reality. I tried to explain why this was unlikely to happen. However, the CLC referendum proposal shows that, at least in California, the defenders of Kelo are craftier than I anticipated. Although I was wrong about this specific prediction, the CLC initiative does reinforce my general thesis that post-Kelo reform has been ineffective because political leaders can exploit voter ignorance by persuading the public that bogus reforms provide real protection to property owners. The CLC initiative would make no sense unless we assume that its advocates calculate that the public won't be able to tell the difference between genuine eminent domain reform and one that imposes no real constraints on takings.

Related Posts (on one page):

  1. More Deceptive Eminent Domain "Reform" in California:
  2. The California League of Cities' Deceptive Eminent Domain "Reform" Referendum Initiative:
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Rene Marie:

Since Orin has flagged his nominee for most underrated jazz vocalist, I will give a shout out to my favorite jazz vocalist, Rene Marie.

Before our baby was born I saw her 3 times in the span of 18 months--every show was completely different and each was absolutely extraordinary. She is the single best live performer I have ever seen, regardless of the genre. Her cd's are great, but if you ever get the chance to see her live, do it. Her rendition of a medley of Dixie and Strange Fruit (on Vertigo) is absolutely compelling. Serene Renegade, her most recent cd, has several of her own compositions.

Her personal story is quite extraordinary as well--she didn't start her career until she turned 40. There's a passing reference in this interview with her. Here's a newspaper story describing her career.

As for Erin Bode, Orin's nominee--I had never heard her before, but I'm listening to her right now and I say "Thanks Orin" for the tip! Like Erin Bode, Rene Marie is on the Maxjazz label. She is a bit more Ella Fitzgerald than Norah Jones.

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Why Isn't Erin Bode More Famous (Yet)?: I'm usually reluctant to recommend music to the broader VC audience, as the music I'm most passionate about can be an acquired taste. (Someday Bobby Hutcherson will be a household name, I swear, but until the Great Vibes Revolution I'll keep relatively mum about him.) But I would guess a lot of readers would like the music of Erin Bode. She's in the same rough jazz/folk category as Norah Jones, but Bode has much more character and personality. I recently picked up her new MaxJazz CD, Over and Over, and I find it a very engaging work. You can listen to some of the tracks in their entirety over at Bode's MySpace page; I recommend starting with "Holiday."
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[Paul Horwitz (guest-blogging), April 1, 2007 at 10:51am] Trackbacks
Final Thoughts on the Religious Test Clause and Judicial Nominations:

Thanks again for many interesting comments on my discussion of this article on the Religious Test Clause. Let me add that the comments to my last post may be of special interest to those who are interested primarily in the historical debate, since it contains some citations offered to critique my view that, for many of the framers and ratifiers whose understanding of the Test Clause may be counted as relevant, it would have been highly unlikely that they would have welcomed various non-Christians or non-believers as public office holders. Commenter "cityduck" offers some valuable contrary evidence. My view remains that, taking the evidence as a whole, many of those figures would have agreed to ban religious tests at the federal level, but would not have gone so far as to say that religion must and should be somehow irrelevant at the level of public debate and official deliberation about federal office-holders. Still, cityduck's evidence is well worth reading.

I did not intend to throw bombs with this paper: it tries to settle a sometimes heated public debate about the use of religion in judicial nominations and to correct what I took to be the frequent and incorrect invocation of the Religious Test Clause in recent public discussion. It uses that correction as a launching point for a broader discussion of the ways in which We the People, both private citizens and public actors like the President and the members of the Senate, might police the use of religion in public discussion in this and other areas, welcoming its presence while thinking about how to engage in such public discussions with care, consistency, and integrity. I think I did a reasonable job, and the commenters here have generally suggested so -- to the extent of worrying that my narrow approach dampened what might be a hot discussion.

And yet, having presented these views in a variety of fora, I'm struck by the occasions on which I have sparked more passionate concerns and disagreements on these issues. I think those occasions say some important things. I'd like to talk about some of those reactions.

I've had several different kinds of audiences for this paper, and several different kinds of reaction. Although the comments to my posts this week were generally supportive and always thoughtful, even in disagreement, I first posted these thoughts (on Prawfsblawg) closer in time to the Roberts and Miers nominations, and then the reactions from the general public were often of the blunt, "no test means no test" variety. And yet most people who reacted to this week's posts, including those who disagreed with my reading of the Test Clause, didn't take this line of argument. This suggests a couple of things to me. First, constitutional interpretation is often clumsiest and bluntest when one is most in the thick of an ongoing controversy. At those moments, people are less concerned with maintaining a strong consistency with the approach they take to constitutional interpretation at a moment of repose. Certainly many of the public commentators who spoke out on the Religious Test Clause issue at the time of the nominations were far less concerned with deeper questions of text, history, and structure than they are at other times. They were deeply concerned with defending the Roberts nomination, and so were willing to expand the Test Clause beyond its proper scope, in a way they would not be for other constitutional provisions. When it came time for the Miers nomination, which many conservatives opposed, they were more than willing to argue for a consistent view against the President's invocation of religion in her support, even though, again, it's far from clear that the Religious Test Clause required such a view. It's perhaps an obvious point, but one we are apt to lose sight of at heated moments: we should be wary of those whose approach to interpreting the Constitution changes depending on how strongly they are looking for a particular result in the moment, and far more intent on judging those views for their methodological consistency and integrity. (Of course, this can be true of folks with a variety of different substantive views and political ideologies.)

A more interesting set of responses came from those who are openly religious, and here we might crudely distinguish between religious individuals who are committed to the place of religion in the public square, and religious individuals, largely of minority faiths, who mostly fear that any invocation of religion in public debate will be used against religious minorities and cause far more division and bigotry than they think can safely be tolerated. "Public square religionists" were far more likely to accept my thesis, and also far more likely to accept its corollary: that religion's entitlement to invocation in the public square also entails the right to criticize religion and religious individuals or beliefs in the public square. They accepted the possibility of criticism as an acceptable price to pay for the inclusion of religion in public discussion. Others worried that allowing any mention of religion in public debate, and in considering nominations for federal office, will inevitably devolve into religious bigotry, typically against a minority faith; better, for them, to protect religion as a fundamentally private activity, and to erect barriers against its public invocation. I think these individuals were appealing to a reasonable concern, but that protecting religion through privatization is too high a price to pay. In any event, public invocation of religion is inevitable in our society; better, then, to try to craft rules to evaluate such invocations, however imperfect they may be.

Finally, let me say that I've been teaching law and religion at Notre Dame Law School this semester, and it's been a wonderful experience, with many thoughtful and engaged students -- predominantly Catholic, most likely, but from a variety of faiths. These students, by and large, seemed to share my intuitions about the Religious Test Clause and the inevitability of religion figuring in the consideration of judicial and other nominees, even though I think I left the discussion sufficiently open-ended that I was not pushing them in this direction. It's especially noteworthy because Catholics have been the most prominent targets of religiously based questioning of various nominees, and so in some ways have the most to gain from a broad reading of the Religious Test Clause as barring such inquiries. And yet that's not the position these students took. That again serves, I think, as a reminder that even members of potentially threatened religious minorities may favor the dangerous space left us by the Religious Test Clause to invoke religion in public, even if it entails the risk of misuse or abuse -- at least provided those individuals begin with an assumption of public engagement rather than of religion as a fundamentally private activity. Of course, this commitment to engagement also entails an obligation to raise one's own voice in the public square, evaluating and sometimes speaking out against the ways in which religion is invoked in public debate; and that's why I've suggestd some standards we might use in this area. I think this kind of obligation is a weighty commitment, but also that it is a fundamental aspect of citizenship, for religious and non-religious individuals alike. I'm glad these students already are on the road to living out that kind of commitment.

Thanks again to my commenters, and to the Volokh Conspiracy gang for serving as gracious hosts.

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