Friday, May 4, 2007

[Bernard Harcourt, guest-blogging, May 4, 2007 at 7:37pm] Trackbacks
Carceral Notebooks, Volume 2: Exploring the Carceral Zone with Nussbaum, Sunstein, Stone, Leitzel, McAdams, and Others.

Before unplugging and returning to my luddite existence, I wanted to share one last bit of information about the space where deviance gets criminalized. The Carceral Notebooks explore precisely that liminal space between morality and crime – focusing on the puzzles surrounding the criminal and legal enforcement of morality.

If you are interested in that space zoned carceral, you may be interested to know that a new volume of The Carceral Notebooks is just out, available to browse on the web here and also in print.

The new volume has several extremely provocative essays about the regulation of morality, especially the regulation of sexuality, as well as terrific response essays from some of our leading social thinkers. Martha Nussbaum has a wonderful essay on Narcissism and Objectification, Cass Sunstein on Equal Sex, Geof Stone on Placing Consent in Cultural and Historical Context, Jim Leitzel on Secret Deviants, and Richard McAdams on Guilt and Crime.

There is also a virtual art exhibit that accompanies the volume with remarkable artwork by Virgil Marti, Mia Ruyter and others. The artwork is arresting, and I invite you to visit the space.

Thank you to Eugene Volokh and his conspirators for inviting me to discuss my work on asylums and prisons. I’ll now return to the library and to that little green paperback Census Bureau volume, Patients in Hospitals for Mental Disease, 1923.

Adam Cohen on Why Debra Yang Resigned as U.S. Attorney: 'Tis the season for speculation about why various U.S. Attorneys left their jobs in the last year. Some of the speculation seems plausible, and some of it seems off. My vote for the most implausible theory is one floated by Adam Cohen in The New York Times today about Debra Yang, the Republican U.S. Attorney for the Central District of California, who left the U.S. Attorney's Office to take a partnership at Gibson Dunn & Crutcher. If I understand Cohen's suggestion correctly (it's the second in his list, starting with "a second possibility"), Cohen wonders whether there might have been a secret conspiracy between Gibson Dunn and the Bush White House to get rid of their mutual enemy, Yang, by giving her a partnership at Gibson plus a $1.5 million signing bonus. With enemies like that, who needs friends?

  UPDATE: Gibson Dunn Partner Randy Mastro responds over at the WSJ Law Blog. As you would expect, Mastro is parroting the Bush Administration line: he has the gall to just deny the conspiracy outright. Of course, the denial is being published in a blog run by the ultra-conservative Wall Street Journal, which is probably in cahoots with the White House and Gibson anyway.
"No Political Candidacy" Clauses for Actors?

Michael Froomkin ( points to an L.A. Times story about how "about how Law & Order reruns might have to be pulled if Fred Thompson runs for President," and asks:

If stations are so afraid of having to give equal time for other candidates that they’d rather pull the episodes, then surely it would be economically rational for the studios to put a routine “no running for office” clause in actors’ contracts that would apply so long as the reruns are showing?

My question is whether that term would be enforceable: would it be against public policy? Or maybe fall to the same sort of doctrines that disfavor non-compete clauses that last more than a few months to (at most) a couple of years?

Well, California is one of about ten states that expressly or implicitly protect private employees from discharge for certain kinds of political activities. Cal. Labor Code § 1101 provides:

No employer shall make, adopt, or enforce any rule, regulation, or policy:

(a) Forbidding or preventing employees [or applicants for employment, according to a California Supreme Court decision] from engaging or participating in politics or from becoming candidates for public office.

(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees [or applicants for employment].

The statute is written categorically, with no exceptions. One federal district court decision, Smedley v. Capps, Staples, Ward, Hastings & Dodson, 820 F. Supp. 1227, 1230 n.3 (N.D. Cal. 1993), stated that there might be an exception "when the employee's political activities are patently in conflict with the employer’s interests"; but I don't think that's a correct interpretation of the statutory text, or of Mitchell v. International Ass’n of Machinists, 196 Cal. App. 2d 796 (1961), the case that Smedley cited as precedent for its assertion.

So it sounds like such "no political candidacy" rules would likely violate the California statute, and would thus be illegal when it comes to employees working in California. Do they apply to actors who are ostensibly hired as independent contractors? I don't know the answer to that, though I suspect that simply labeling workers "independent contractors" wouldn't suffice to exempt them from coverage.

What if Law & Order employees are governed by New York law? New York is one of the other states with such a statute, N.Y. Labor Law § 201-d; this reads, in relevant part:

(1) (a) “Political activities” shall mean (i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group ....

(2)(a) ... [No employer may discriminate against an employee or prospective employee] because of ... an individual’s [legal] political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property [except when the employee is a professional journalist, or a government employee who is partly funded with federal money and thus covered by federal statutory bans on politicking by government employees] ...

(3) [This section] ... shall not be deemed to protect activity which ... creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest [such as when the German National Tourist Office fired an employee for becoming known as the translator of some Holocaust revisionist articles -EV]....

A rule that bars employers from engaging in politics would likely be treated as presumptively impermissible discrimination based on their legal political activities. But that presumption would likely be rebutted in a situation such as the one Prof. Froomkin describes, because political activities that seem to legally mandate that an employee's work product no longer be salable would likely qualify as involving "a material conflict of interested related to the employer's ... business interest."

If anyone knows more about this issue, please post about it in the comments.

Talking About Forced Sex of Avatars = Crime?

Some people call it "virtual rape," but it strikes me as so far removed from the real thing that even including the adjective "virtual" leaves the phrase with a misleading connotation. In any case, Wired commentator Regina Lynn reports:

Last month, two Belgian publications reported that the Brussels police have begun an investigation into a citizen's allegations of rape — in Second Life....

Can anyone who speaks Dutch tell us more about these accounts (here and here)? I'd like to know whether they seem real or jokes (a possibility the Wired item flags), and also precisely what laws were allegedly violated.

I should note:

  1. One can easily imagine a game in which such behavior is cause for expulsion, or breach of a player's contract; but I take it that this wouldn't make it a criminal violation.

  2. The speech might also be punishable as a threat if it is reasonably perceived as a threat against the real person whose avatar is involved, for instance, if it appears that the speaker knows who the avatar's real-world user is, and in context the statements are reasonably understood are threatening the user. But this would be unlikely if there's no reason to think that the user's identity is known. (Note also that under U.S. law, it's possible that for the speech to be a threat there must also be evidence that the speaker intends it to be perceived as a threat; I can't speak to Belgian law.)

  3. Sufficiently explicit talk of sex might be seen as punishable pornography, depending on the country's laws. It's conceivable that it would even qualify as unprotected and criminally punishable obscenity in the U.S. (and the targeting of the statement to an unconsenting player might help support this position, if the "prurient interest" and "patent[] offensive[ness]" prongs are seen as considering the context of the speech as well as the content); but it would have to be pretty explicit for that to happen, I think.

In any event, I'm curious what exactly the legal theory is in the Belgian investigations, if there really are investigations and there really is a legal theory.

Thanks to John Rayburn for the pointer.

UPDATE: Many thanks to Dutch-speaking reader James Wallmann, who writes:

The two news items are virtually identical. Here are the translations:

First link:

Federal Computer Crime Unit Patrols in Second Life

The Brussels Public Prosecutor’s Office has asked investigators of the Federal Computer Crime Unit to patrol in Second Life.

In the virtual world of the computer game[*] a personality was recently “raped.” Following the virtual rape the Brussels police opened a file. “It is the intent to determine whether punishable acts have been committed,” according to the federal police. The Public Prosecutor’s Office was also alarmed. At the vice section acting officer Verlinden opened an informational investigation into the details.

* Note use of diminutive suffix (-etje), which I didn’t translate, suggesting this is something trivial or for kids....

Second link:

Brussels Police to Patrol in Second Life

The Brussels Public Prosecutor’s Office has asked investigators of the Federal Computer Crime Unit to patrol in Second Life. This according to De Morgen. In the virtual world of the computer game[*] a personality was recently “raped.” Following the virtual rape the Brussels police opened a file. “It is the intent to determine whether punishable acts have been committed,” according to the federal police. The Public Prosecutor’s Office was also alarmed. At the vice section acting officer Verlinden opened an informational investigation into the details.

* Note use of diminutive suffix (-etje), which I didn’t translate, suggesting this is something trivial or for kids.

Real or jokes? Your guess is as good as mine. I suspect that the anonymous reporter thinks this investigation is a bit silly, but perhaps just the facts are being reported. As you see from the translations, nothing is said about what laws may have been violated.

Three of the comments in the first link were amusing: "Will the perpetrator receive a virtual punishment?" and "For heaven's sake, what's going on here? Normally citizens have to move heaven and earth to get the police involved in something. Gentlemen, this is virtual! Perhaps the Public Prosecutor's Office doesn't know what this means." and "Ah, that lovely feeling you get when you hear that your tax dollars are being wisely spent." The commentators certainly took the article at face value, not as a joke.

Russian Speakers Are Superior!

At least, apparently, at telling shades of blue apart (thanks to Paul Hsieh (GeekPress) for the pointer) -- and the theory is that it's because conventional Russian "divide[s] what the English language regard as 'blue' into two separate colours, called 'goluboy' (light blue) and 'siniy' (dark blue)."

Obviously, English has many words for many shades of blue, too, but there is indeed a difference between how casual English speech and casual Russian speech treat the colors. In English, "blue" would be commonly used for light blue or dark blue, in a way that isn't so for pink and red. In Russian, one would normally distinguish "goluboy" (light blue) from "siniy" (dark blue) just as one would distinguish "rozoviy" (pink) from "krasniy" (red). In any case,

Researchers led by Jonathan Winawer of Massachusetts Institute of Technology in Cambridge presented Russian and English speakers with sets of three blue squares, two of which were identical shades with a third 'odd one out'. They asked the volunteers to pick out the identical squares.

Russian speakers performed the task more quickly when the two shades straddled their boundary between goluboy and siniy than when all shades fell into one camp. English speakers showed no such distinction.

But wait! There's one item the Nature article didn't note: In Russian, "goluboy" is also a slang term for a male homosexual. Coincidence? Or conspiracy?

Will the ABA Eliminate Tenure Requirements for Accreditation:

Inside Higher Ed says "maybe" (hat tip: Instapundit). Given that I don't think the ABA should be in the accreditation business to begin with (at least not to the extent that government relies on such accreditation to decide who gets to take the bar, and who gets student loan funding), a fortiori I'm against the ABA's enforcement of ANY particular standard.

But I specifically agree that giving full-time "regular" faculty tenure (much less clinicians, deans, and library directors) should not be a requirement for accreditation. As a commentor on the IHE site notes,

Once tenured, there are many in the academy who adopt an entitlement mentality whereunder they rarely or never do research, teach classes from the same notes year after year until they are well past stale, and fail to meet minimal standards of service and compliance, yet are largely untouchable. And why should a library director or a dean, both of whom are much more administrators or fund raisers than academics, be given such absolute protection if they screw up in their jobs and are not quality teachers/scholars?

I know that when I was on the teaching market, I was amazed when looking at law school brochures to see how many senior faculty at various schools had published nothing beyond an occasional state bar journal article for many years running, and I continue to be surprised at how many law profs seem to manage to have more or less full-time law practices on the side (the latter in violation of ABA rules!).

Also, there are many professors (and potential professors) out there who are fine teachers, but really don't have much to say scholarship-wise. Current ABA standards require that they be given low teaching loads, and also be eligible for tenure, which means that they are forced into a "scholar" persona even if it doesn't fit. Lawyers who are ready, willing, able, and eager to teach are discouraged from joining the academy because they aren't ready, willing, able, and eager to write turgid law review articles for the sake of writing them, just to meet tenure standards. The overall result is a lot of largely unread mediocre scholarship published in obscure law reviews, and a lesser teaching environment for students.

I expect that with or without ABA requirements, law schools that consider themselves to be research institutions will continue to have tenure for their research-oriented faculty. But abolition of the requirements will allow law schools that see themselves primarily as teaching institutions to pursue that goal in a far more efficient manner. Academic freedom is important, but tenure is hardly the only way to protect it (and, in fact, the greatest violations of academic freedom seem to occur when candidates are considered for positions; faculties tend to be much less tolerant of applicants with "deviant" ideological views than of their colleagues).

Profile of the DC Madam's Lawyer, in today's Washington Post. He sounds like the perfect attorney to hire if you're charged with running a high-class prostitution service; the evidence against you is overwhelming; and your primary goal at this stage is to make sure your case becomes a memorable news story so you can sell your book and movie rights for a lot of money. (The federal "son of sam" law only applies to espionage offenses and crimes that cause physical harm, so I gather Palfrey can keep whatever money her book and movie rights will bring.)
Did Online Resources Help Cause A Decline in the Supreme Court's Docket?: According to the Associated Press, Chief Justice Roberts delivered remarks at the Alaska Bar Association annual convention that included an interesting theory for what has contributed to the decline in the Supreme Court's docket in recent years: thanks to on-line resources, lawyers and lower courts can find existing lower court precedents more easily, resulting in fewer circuit splits for the Supreme Court to resolve. The AP story doesn't give the details of the argument — it only has a sentence on it — but the idea seems plausible to me. It's much easier to find relevant lower court caselaw on Westlaw or LexisNexis than it was to find those cases using just the books. That may mean that lawyers and law clerks are more likely to find the right cases, circuit courts and state supreme courts are more likely to consider them, and the law is more likely to end up being uniform across different jurisdictions. Thanks to How Appealing for the link.
[Bernard Harcourt, guest-blogging, May 4, 2007 at 7:00am] Trackbacks
Concluding Thoughts on Total Institutions: Future Directions and Critical Reflections.

I conclude this series of web logs where I began — with that haunting graph of the asylum and prison populations in the United States during the twentieth century (rates per 100,000 adults):

Chris Uggen, chair of the sociology department at Minnesota, asks on his public criminology blog: “Shouldn't sociological criminologists be able to offer some explanation for the figure at left, showing the aggregate rate of institutionalization for prisons and mental hospitals?”

The figure does, indeed, call out for explanation. But my sense is that the graph itself and the state panel regressions do more to undermine confidence in our conventional explanations and accepted wisdom, than they do to stabilize them.

It may simply be too early to offer answers. We may need first to rethink and study afresh the notion of total institutions. So let me suggest here a few directions for further research and a question regarding the larger theoretical framework.

First, I think we need to place the demographic differences between the two populations in a richer historical context. Many readers immediately question my findings because of the demographic contrast between the asylum and prison populations. But there may be more to the picture. On the issue of racial compositions, for instance, the national counts may mask important differences at the state and regional level.

The early surveys by the Census Bureau are revealing in this respect. Aggregated to the national level, African-Americans represented a small fraction of residents in mental hospitals enumerated on January 1, 1923 — 7.6% to be exact — and had a relatively low institutionalization rate (192 persons per 100,000 African-Americans). Whites in contrast represented 92.9% of mental hospital residents and had a significantly higher ratio of 259.8 per 100,000 whites. But things look very different within and between states and regions.

The New England and Pacific regions had high rates of black institutionalization, in fact far higher than white institutionalization in those regions, and also far higher than black institutionalization in the South. The Census Bureau in 1932 explained why: “This is undoubtedly due to the lack of adequate hospitals for negroes in the South. In the parts of the country in which negro patients are admitted to State hospitals without discrimination, the rate for negroes generally exceeds that for whites. In Massachusetts, for example, the rate for resident negro patients is 644.4 and for resident white patients, 408.8.” Here are some other state breakdowns (in rates “Per 100,000 of same race”):

Notice how the comparative rates differ as between states and regions. Clearly, racial demographics varied at the state level and will require more nuanced analysis.

Second, we need to explore in greater depth the relative magnitudes of the different possible effects. In the state panel data regressions, there are interesting clues about other potential explanations. I've already discussed here the issue — or non-issue — of capital punishment. But there are other explanations to investigate.

The size of the youth population seems to play an important role in my regressions, which is consistent with what many criminologists have argued (see here and here). (Some economists do not agree, see here and here). What is particularly interesting about my results is that the effect shows up with the 20 to 24 cohort in the most complete models, but not with the 15 to 19 cohort. This suggests that the actual ages chosen may have significant impacts on the results.

The race effects are also remarkable and, in all likelihood, have to do with high victimization rates in the African-American community, as Lawrence Bobo at Stanford suggests here in "A Taste for Punishment." The negative effect of urbanization is surprising, but may be an artifact of a very loose definition of urbanity. The Census Bureau defines “urbanized areas” very broadly to include areas that have a density of 500 persons per square mile. The gradual lowering of the urban threshold may account for these surprising results.

The key question, though, is how these potential explanations compare in magnitude to each other and, more importantly perhaps, as compared to sociological theories of neighborhood effects, social disorganization, social control, subcultural theories, etc. How does aggregated institutionalization compare to Robert Sampson's measures of collective efficacy and social cohesion in the size of its effect on crime or unemployment or education? Is it possible that institutionalization may actually dwarf those other effects, especially when we investigate a lengthy time period such as 1934 to 2001?

This raises a larger theoretical question about kinds of explanations. The fact is, aggregated institutionalization is about social physics. The term "social physics" may sound nineteenth-century — rightly so. It was first used by Auguste Comte to refer to what is now the discipline of sociology, though Comte abandoned the term when the statistician, Adolphe Quetelet, started using it in a more narrow statistical sense to refer to the “homme moyen” (the average man).

In reappropriating the term here, I would define social physics narrowly as social theories that are necessarily true as a result of the physical nature of our mortal existence, in contrast to theories that depend on the intermediation of human consciousness and decision-making. By way of illustration, consider six theories now central to sociological and economic criminology: (1) rational choice theory, (2) the broken-windows theory, (3) legitimacy theory, (4) incapacitation theory, (5) youth demographics, and (6) the abortion hypothesis. The first three operate through the intermediary of human consciousness. In each case, the theory depends on actors believing certain things and conforming their behavior to those beliefs. In contrast, the last three theories involve only social physics — physical restraint in the case of incapacitation or cohort size in the latter two cases.

Depending on the magnitude of the effects, it may turn out that social physics explain far more than theories of rational choice and social influence. (I discuss this idea here in a a new essay). This raises a troubling question: If social physics have far greater explanatory power, then why have we spent so much of the twentieth century developing socio-cultural and political explanations of deviance — theories of deviant subcultures, disorderliness, social disorganization, collective efficacy, anomie, social conflict, to name but a few? If the dominant factor is simply the rate of total institutionalization qua incapacitation or the size of youth cohorts, then why have we spent so much time trying to identify and shape social relations and social processes?

The answer to this puzzling question — should it arise — may lie in our schizophrenic relationship to punishment that is so glaringly reflected in the arresting figure of asylum and prison populations.

James Comey's Testimony, and His Continuing "Errring on the Side of Neutrality and Independence": Former Deputy Attorney General James Comey testified before the House Judiciary Committee today, and his recollection of the work of the 8 fired U.S. Attorneys stood in sharp contrast to Attorney General Alberto Gonzales's official line. The gist of Comey's testimony: Most of the fired U.S. Attorneys were outstanding, and they certainly weren't fired for what you would traditionally think of as "performance" reasons.

  Listening to Comey's testimony reminds me of this fascinating 2004 Legal Times story (that I blogged about here and here) on why the universally-respected Comey was not likely to be nominated for the Attorney General slot when Ashcroft stepped aside. From the introduction of the 2004 story, with emphasis added:
  There are a number of candidates who could be tapped to replace John Ashcroft as attorney general if President George W. Bush wins re-election. But perhaps the most obvious choice, Deputy AG James Comey, almost certainly will not be.
  Since his confirmation as the No. 2 Justice Department official in December 2003, sources close to the department say Comey has had a strained relationship with some of the president's top advisers, who feel that Comey has been insensitive to political concerns.
  According to several former administration officials who spoke on the condition of anonymity, tensions were sparked when Comey appointed a special prosecutor to take over the investigation into whether a White House official leaked a Central Intelligence Agency operative's name to the media. The special prosecutor, U.S. Attorney Patrick Fitzgerald, has doggedly pursued the probe, and several administration officials, including presidential adviser Karl Rove, have been questioned by prosecutors.
  Distrust of Comey deepened after some of his early staff picks were vetoed by the White House for not having strong Republican credentials, sources say.
  "The White House always wants to make sure the administration is staffed with people who have the president's best interests at heart. Anyone who resists that political loyalty check is regarded with some suspicion," says one former Bush administration official. "The objective in staffing is never to assemble the best possible team. It is to assemble the best possible team that supports the president."
  Earlier this year, after the disclosure of internal administration memos that seemed to condone the torture of suspected terrorists overseas, Comey pushed aggressively for the Justice Department's memos to be released to the media and for controversial legal analyses regarding the use of torture to be rewritten.
  In a deeply partisan administration that places a high premium on political loyalty, sources say Comey — a career prosecutor and a former U.S. Attorney for the Southern District of New York — is not viewed as a team player.
  "[Comey] has shown insufficient political savvy," says the former official. "The perception is that he has erred too much on the side of neutrality and independence."
  Comey still has this "problem," it seems. Of course, the White House's eventual pick, Gonzales, does not.

Thursday, May 3, 2007

City Threatening to Sue State for Negligent Failure to Legislate:

The Philadelphia Daily News reports:

What's held [the Philadelphia City Council's gun control agenda] in check is that only the commonwealth can legislate in the area of firearms, and unless the General Assembly will delegate power to the city, Council's actions would be dead on arrival....

[Now, Councilman Darrell Clarke says the Council] is preparing to file a legal complaint related to the Legislature's inaction....

Asked how Council can move forward on the bills without a state enabling law, Clarke said, "We think that with our complaint, we will show in our theory that the state has been negligent in terms of enacting good-sense legislation. We think we have a compelling case." ...

What a great theory! If you think the state has been negligent in terms of enacting good-sense legislation, why, just sue the state for negligent failure to legislate. Once it does that, and some other city or organization thinks the state has been negligent in terms of enacting bad-sense legislation, it can sue the state for negligent legislation.

Then the courts can just decide what makes the best sense, and that'll be that. No need for them to limit themselves to any areas specially removed from the political process by a constitutional provision (say, the right to free speech, the right to bear arms, city home rule as assured by some express state constitutional provision, and the like). Just apply a general "did the legislature fail to enact good sense legislation? / did it enact bad legislation?" test, potentially covering any question under the sun. Cool.

Thanks to Guy Smith for the pointer.

Federalism and Tort Reform:

My colleague Michael Krauss has an excellent column in the Wall Street Journal on federalism and tort reform (subscription-free excerpt available here). Currently, states with unusually stringent tort liability rules can impose them even on products that their residents purchased out of state. As Michael explains:

A manufacturer might want to charge higher prices in West Virginia to cover the legal 'premium' it must pay for unavoidable product-liability rules there. It wouldn't work. Mountaineers could simply purchase the product in neighboring Maryland and bring it back home — and current jurisdictional rules essentially provide that West Virginia tort law will apply to all accidents occurring there, regardless of where the consumer bought the product.

"West Virginia consumers, in other words, obtain the same tort 'coverage' — but for a lower premium — if they buy the product in Maryland. As a result, manufacturers aren't able to lower the price of their products in Maryland to reflect that state's less onerous (or ridiculous) product liability rules, because they may end up incurring the higher liability costs of West Virginia. I believe this helps to explain the product liability mess in the U.S. We have more product liability than we want because of a beggar-thy-neighbor 'Byrd Effect.'

He proposes a federalist solution to the problem:

Suppose, however, a federal law declared that the laws and rules governing product liability applicable to a given product are the rules of the state where that product was first sold at retail.

Thus, if a West Virginian bought his lawn mower in Maryland, it would be Maryland law that determined product liability, even if an accident involving an alleged defect happened later in West Virginia . . . Manufacturers could now price goods in each state to reflect that state's liability rules — allowing consumers to pay for the liability protection they wanted. Competition would provide consumers with knowledge of what this all means. West Virginia retailers would have a keen incentive to explain to consumers how they receive greater protection — in return for a higher purchase price . . .

Of course, consumers might not want to pay for this extra protection. Suppose that the West Virginia retail price of a lawn mower includes a premium reflecting the outlays required by a product liability rule requiring full compensation to a consumer injured through his own misuse of a product. The consumer might say, 'Thanks but no thanks. I'll take my chances,' and buy his lawnmower in Maryland, where this 'misuse protection' is not bundled into the purchase price. West Virginia retailers lose sales; and if the losses became apparent, these retailers would be well placed to pressure political representatives to modify liability rules so as to better reflect consumers' actual preferences.

Michael's proposal is better than the traditional conservative approach of trying to impose one-size-fits-all tort reform through the federal government. There is no reason to believe that the feds will come up with a good solution that reflects the diverse needs of different states. Even if they do, Congress will have little incentive to make efficient adjustments to the rules over time. Michael's approach is also better than the status quo, which in effect allows the most pro-plaintiff states to set prices and product standards for the entire country. States should be allowed to set tort policy for products sold within their own borders. Interstate competition and consumer choice will give them strong incentives to avoid overreaching, while simultaneously addressing legitimate safety concerns. But they should not be allowed to in effect impose their tort liability rules on products sold elsewhere.

More generally, Michael's argument reflects an important theme in the emerging literature on federalism: in order to achieve the benefits of interstate competition and diversity, we must limit not only the powers of the federal government, but also the power of state governments to control people and businesses outside their borders. Northwestern law professor John McGinnis and I made this case in our 2004 article Federalism vs. States' Rights. Most people - even most constitutional lawyers - think of federalism as a system of limitations on central government power. But in many situations, it actually entails limits on the power of state governments as well.

Bush to veto expanded hate-crimes law:

The bill passed the House today, 237-180. It goes on to the Senate. A statement released by the administration says that Bush's senior advisors will recommend a veto. That's not quite the same as saying he will veto it, but it's pretty close. If he does, it would be the third of his presidency, after stem cells and a timetable for withdrawal from Iraq. The text of the bill is here.

The administration's given reasons are that the law is unnecessary, an intrusion on federalism, and constitutionally questionable as an exercise of federal power. I expressed similar reservations in a post here about the bill two months ago. To its credit, the administration is avoiding the common and I think mistaken complaint that the bill would punish speech and thought. Anti-gay organizations, like Concerned Women for America, will certainly be happy about this. But their glee is insufficient reason to support the bill.

Andrew Sullivan, who like me opposes hate crimes laws as a general matter, complains that Bush's veto of this bill represents a double-standard under which gays are just about the only commonly victimized group left out of the special protection federal law already provides. That might in fact be the sort of pandering to anti-gay bigotry that's going on here and, if so, the administration deserves to be criticized not for the veto but for the malign motive behind it.

The problem with this criticism, however, is that the bill does much more than simply add "sexual orientation" to the existing federal law on hate crimes passed in 1968. It's a whole new statute. Protecting gays is only one element, though the most publicized. The bill considerably expands federal jurisdiction over hate crimes in general, for all categories, by eliminating the current requirement that the crime occur while the victim is engaged in a federally protected activity. That jurisdictional limitation has kept federal involvement very limited in an area where state authority has traditionally reigned. The new law also calls for more federal resources to be expended on all classes of hate crimes. The veto of an amendment merely adding sexual orientation to existing federal law would pretty clearly reflect an anti-gay double-standard. A veto of this much more comprehensive bill does not.

To test this proposition, and to put gays on a par with other groups often targeted for hate crimes, Congress could simply amend the 1968 federal hate-crimes law to add protection for sexual orientation. Then we'll see what the President does.

UPDATE: Marty Lederman has some thoughts on an interesting wrinkle in the administration's constitutional objections to the bill.

Related Posts (on one page):

  1. Hate Crimes Laws: Dangerous and Divisive:
  2. Bush to veto expanded hate-crimes law:
  3. The Hate Crimes Temptation:
Nebraska Supreme Court Takes Over Defense of Capital Defendant: Carey Dean Moore has been convicted of capital murder and has decided not to raise any more challenges to his sentence or method of conviction. Yesterday, however, the Nebraska Supreme Court has on its own decided to bar the state from executing Moore, at least for now.

  The reason: the Justices are considering the constitutionality of lethal injection the electric chair in another case, and the judicial need "to ensure the integrity of death sentences in Nebraska . . . requires Moore to cede control of his defense" to the Justices of the Nebraska Supreme Court until that issue is settled. The Court explains that the power to take over Moore's defense follows from the Court's "inherent judicial power, which is that power essential to the court's existence, dignity, and functions." The Justices therefore filed and granted their own motion to withdraw the death warrant they had issued that had allowed the state to execute Moore.

  There's nothing unconstitutional about this, as far as I can tell. But it does seem rather strange. For more on the decision — including the reaction of Moore, his attorney, victims of the family, and death penalty activists — the Omaha World-Herald has some details. Thanks to James Creigh for the link.
Dealing with Gonzales:

Two interesting op-eds in today's New York Times offer ways to deal with the troubling persistence of Attorney General Alberto Gonzales. One calls for Congress to impeach Gonzales:

A false claim not to remember is just as much a lie as a conscious misrepresentation of a fact one remembers well. Instances of phony forgetfulness seem to abound throughout Mr. Gonzales’s testimony, but his claim to have no memory of the November Justice department meeting at which he authorized the attorney firings left even Republican stalwarts like Jeff Sessions of Alabama gaping in incredulity. The truth is almost surely that Mr. Gonzales’s forgetfulness is feigned — a calculated ploy to block legitimate Congressional inquiry into questionable decisions made by the Department of Justice, White House officials and, quite possibly, the president himself.

Even if perjury were not a felony, lying to Congress has always been understood to be an impeachable offense.

Assuming for the sake of argument that lying to Congress about a matter on which Gonzales might have refused to testify amounts to an impeachable "high crime [or] misdemeanor," it's not necessarily the case that Gonzales lied. His claims not to recall key events in the firing of the U.S. Attorneys may have been, in descending order of seriousness, (1) conscious lies designed to thwart congressional oversight and shield wrongdoing by Gonzales or the White House, (2) conscious lies designed to protect what Gonzales believed were matters protected by executive privilege (without actually claiming the privilege), regardless of their effect on congressional oversight or on protecting allies, (3) gross nonfeasance or incompetence, which caused him to fail to devote sufficient attention to the matter, and thus not to remember these events because he was concentrating on others, or (4) genuine forgetfulness. I think something like #2 or #3 is most likely. In the case of #2 Gonzales should have invoked a politically costly executive-privilege claim. All four are sufficient reason for Gonzales to resign.

But as a prudential matter I am reluctant to say at this point that Congress should begin impeachment proceedings, even if it has the right to do so. For better or worse, impeachment is the nuclear option in American politics. Only one other executive cabinet member has ever been impeached. No attorney general has ever been impeached; when they get in bad trouble, they tend to resign, which Gonzales may yet do. Impeachment proceedings against an AG would be a time-consuming and absorbing national drama which, however constitutionally warranted, may still be avoided through resignation. Impeachment proceedings would increase the political pressure on Gonzales to resign, but they might also cause the administration and its supporters in Congress to dig in their heels against a "partisan" Democratic Congress.

The main role of Congress here is not to impeach, but to make sure that when the Executive branch exercises its power in a way that undermines confidence in the Justice Department, it is called to political account. That is what has happened and is happening in the case of Alberto Gonzales, even with his claims of amnesia, which are bringing public ridicule and contempt upon him and the administration. My hunch is that he will try to find a face-saving way to resign in the next few months. The question is whether waiting that long will do so much damage to the functioning and credibility of the DoJ that we ought to begin impeachment proceedings (which might also take months), to increase the pressure on him to go sooner. I don't think we're there yet.

The second op-ed is more radical, calling for structural reform at the Justice Department:

I suggest we begin by making the attorney general job no longer a cabinet position. . . .

The solution is to have the attorney general appointed to a fixed term — say, 15 years — that wouldn’t be coterminous with the tenure of the president who appoints him. As with the director of the F.B.I. (a 10-year term) and the chairman of the Federal Reserve (a four-year, renewable term), the appointment would be made by the president with the advice and consent of the Senate. Congress’s oversight would ensure that no political hack or crony of the president could be handed the job.

Likewise, the 93 United States attorneys should not be political apparatchiks, but talented lawyers selected half from Republican ranks and half from Democratic, following the system used for regulatory bodies like the Federal Communications Commission. These men and women should also be subject to Senate confirmation.

Changes in the occupant of the White House should not affect the way justice is administered. If the Gonzales mess ends up giving us an apolitical Department of Justice, the American people will be well served.

I have several concerns about this proposal. First, while the term of the AG would be longer, the process by which she's chosen would be basically the same. President nominates, Senate confirms. If Congress hasn't already exercised sufficient oversight to ensure that hacks and cronies aren't appointed, it's not clear why that would change much (though a longer term for the AG might make Senators take their job somewhat more seriously). What seems most to drive real oversight on appointments is not the particulars of Congress's structural role but whether it is in the hands of the opposing party. That partisan reality is unchanged by the proposal.

Second, I'm not sure we'd profit from an AG "independent" of the president and removable (presumably) only by impeachment. The experience of the FBI, for example, does not inspire much confidence. Incompetence and abuse of power come just as easily with "independence" as with hackery. I'd be concerned about a tyrannical, long-serving AG in the mold of J. Edgar Hoover who couldn't be removed easily by impeachment or forced to resign.

Third, I don't see how the proposal would really give us an "apolitical" Justice Department so much as a "bi-political" one, with both Democrats and Republicans getting their favored candidates in particular U.S. Attorney offices.

Finally, the proposal would represent a serious diminition of the President's power and duty to take care that the laws be faithfully executed. It's not that the proposal is unconstitutional. It's that it's constitutionally unwise. It's a break with two centuries of tradition, under which we have usually had acceptable and competent AGs and sometimes outstanding ones. We may think that President Bush has abused his authority, made extravagant claims about executive power, and even violated the laws he is supposed to enforce. But he will not always be the president. When there are other ways to deal with his excesses, as there are, it seems to me short-sighted to base fundamental reform of the executive branch on the sometimes disquieting experience of his presidency.

We're Getting Warrants Now, But That's the President's Call, DNI Says: The NSA domestic surveillace program has been out of the news ever since it was announced in January that the Bush Administration had agreed to seek FISA warrants for such surveillance rather that try to conduct it outside of FISA. In a hearing earlier this week on amending FISA, Director of National Intelligence Michael McConnell made clear that in the Bush Administration's view, this is completely at the President's discretion. According to McConnell, the Administration still takes the view that FISA is unconstitutional and that it has Article II authority to ignore FISA, but it just has decided not to exercise that particular authority at this particular time. According to McConnell: "Article II is Article II, so in a different circumstance, I can’t speak for the president what he might decide." (Hat tip: Balkin)
The Baseball Economist:

I just recently read John Charles Bradbury's marvelous new book The Baseball Economist: The Real Game Exposed. J.C. is currently an economics professor at Kennesaw State University and writes the brilliant blog Sabernomics. I also had the pleasure of being the outside reader on J.C.'s PhD dissertation, which was a splendid public choice analysis of legislative bicameralism (which had the added virtue of reinforcing some of the themes in my Seventeenth Amendment scholarship).

J.C.'s blog is entitled "Sabernomics" and the idea behind the blog and his book is to combine standard sabermetrics analysis of baseball statistics with economics to generate hypotheses that can be tested. So, for instance, he tests the proposition of whether having "protection" by a good on-deck hitter helps the batter at the plate by making the pitcher give him something to hit (Bradbury says no, contrary to conventional wisdom). He also discusses the method by which player's on-field contributions can be converted into a measurement of their actual financial value to their team (which the Wall Street Journal also discussed a few weeks back). He also concludes that there really was a "Leo Mazzone" effect on pitchers with the Braves. And I think my favorite chapter is "The Extenct Left-Handed Catcher" which I think is the cleverest chapter in showing how adding clear economic thinking can help think through some baseball puzzles that sabermetrics alone can't answer.

It is really a great book and I think VC baseball fans will enjoy it. And if you enjoyed this, you'll certainly want to move on to read his empirical work on bicameralism (ok, maybe that part is just me).

Accountability to Colgate Alumni Initiative:

There appears to be an interesting movement afoot among Colgate alumni, the "Accountability to Colgate Alumni Initiative." The goal of the initiative, as their website explains it, is "to ask the Board of Trustees to change the By-laws to allow 18 of the 35 members to be voted by the alumni."

The initiative seems to be modeled on Dartmouth's 1891 agreement between Dartmouth College and its alumni to guarantee Dartmouth alumni the power to elect half of the Dartmouth board of trustees (discussed briefly here). The Dartmouth deal was struck during a period of immense financial hardship for the College which was plagued by poor management and other problems. The alumni decided to open their wallets to bail out the College financially, but insisted on having the power to elect half of the seats on the board in order to provide oversight to make sure their money wasn't squandered. My understanding is that in fact half of the members of the board stepped down immediately and their successors were elected by the alumni.

The Colgate group appears to be taking a related approach with respect to the financial aspect of the plan. They have set up an escrow fund to which alumni can donate contingent on the new proposal being adopted by the Colgate board. If the board does not adopt the proposal to permit alumni to elect half of the board by 2012, each donor's money will be released instead to a second beneficiary. In the meantime, the funds will be invested by Merrill Lynch.

One interesting aspect of the Colgate initiative is that those behind it are simply requesting procedural reforms to open up the trustee election process, rather than directly demanding certain substantive reforms, which has typically been the approach taken in the past by reformers.

Is anyone aware of any similar movements at other institutions to open up trustee selection processes?

[Bernard Harcourt, guest-blogging, May 3, 2007 at 7:05am] Trackbacks
Asylums and Prisons: Race, Sex, Age, and Profiling Future Dangerousness.

In Madness and Civilization, Michel Foucault documented a remarkable continuity of confinement through different stages of Western European history, from the lazar houses for lepers on the outskirts of Medieval cities, to the Ships of Fools navigating down rivers of Renaissance Europe, to the establishment in the seventeenth century of the Hôpital Général in Paris — an enormous house of confinement for the poor, the unemployed, the homeless, the vagabond, the criminal, and the insane.

“Leprosy disappeared,” Foucault writes, “the leper vanished, or almost, from memory; these structures remained. Often, in these same places, the formulas of exclusion would be repeated, strangely similar two or three centuries later. Poor vagabonds, criminals, and “deranged minds” would take the part played by the leper . . . . With an altogether new meaning and in a very different culture, the forms would remain—essentially that major form of a rigorous division which is social exclusion but spiritual reintegration.”

Social exclusion unites the asylum and the prison. The question that I ask in my research is whether we should think of the two populations as somehow linked. Is it possible that today’s category of the “criminally deviant” is tied to yesterday’s category of the “mentally defective”? In our social research, should we think of the two populations as a whole, rather than as two separate parts?

I am by no means suggesting that the same people have been moved from one institution (the asylum) to another (the prison). That is far too simplistic – for at least three important reasons.

Mental Illness: First, although the rate of mental illness among prison inmates is probably higher than among the general population and although the problems surrounding mental illness in jails and prisons have reached crisis proportions, it’s not the case that our prisons today are overwhelmingly housing persons with mental illness. For one thing, the war on drugs has taken an enormous toll on African-American communities, and has contributed to an unconscionable increase in black male incarceration that has nothing to do with mental illness. Bruce Western at Princeton documents this better than anyone in his new book, Punishment and Inequality in America.

Estimates of the number of mentally ill inmates vary. According to a 1999 report by the DOJ, about 283,800 inmates in prisons and jails suffered from mental illness at the time – which represented about 16% of jail and state prison inmates. A more recent 2006 DOJ study reported that 56% of inmates in state prisons and 64% of jail inmates across the country reported mental health problems within the past year. Steven Raphael at Berkeley has a fascinating paper and he finds that deinstitutionalization from 1971 to 1996 resulted in between 48,000 and 148,000 additional state prisoners in 1996, which according to him, accounted “for roughly 28 to 86 percent of prison inmates suffering from mental illness.”

A new paper by Steven Erickson and his colleagues reviews the literature on prison mental illness and shows that the estimates for mental illnesses, broadly defined, range from 16% to 90% and for severe mental illness from 6.4% to 39%. “These rates,” they suggest, “are well above those found in the general population of approximately 30% for mental illness and 6% for severe mental illness.” The paper is extremely skeptical of these estimates and casts doubt on the surveys based on methodological shortcomings.

For sure, it is exceptionally difficult to compare mental hospital residents of the 1950s to prison populations of the 1990s because the definitions, diagnoses, and medical routines have changed so much. Remember, the whole infrastructure of our mental health system has collapsed – making it unrealistic to measure the key attribute of “prior mental health contacts.” Moreover, drug use and psychotropic medications have changed enormously. But despite all that, the two populations must differ along somewhat-objective criteria of mental illness.

Race, Sex and Age: Second, the demographics of the two populations are different, as I discuss here in the Texas Law Review at pages 1781-1784. The prison population today is, overall, younger, much more male, and more African-American than the mental hospital populations at mid-century. In 1966, for example, there were 560,548 first-time admissions to mental hospitals, of which 310,810 (55.4%) were male and 249,738 (or 44.6%) were female. In contrast, new admittees to state and federal prison were consistently 95% male throughout the twentieth century. In 1978, African Americans represented 44% of newly admitted inmates in state prisons. That same year, minorities represented 31.7% of newly admitted patients in mental hospitals.

(But note that those populations were also changing internally. Henry Steadman and John Monahan report in a 1984 study that, in their sample, “the mean age at hospital admission decreased from 39.1 in 1968 to 33.3 by 1978. The percentage of whites among admitted patients also decreased, from 81.7% in 1968 to 68.3% in 1978.” There was a similar shift in the prison admissions data: “the mean age of prison admittees was 29.0 in 1968 and 28.1 in 1978" and the percentage of whites among prison admittees decreased from "from 57.6% in 1968 to 52.3% in 1978").

The War on Drugs: Third, a large portion of our current prison population consists of non-violent drug offenders. The war on drugs has helped fill our prison populations, especially our federal prisons. The following graph, from a forthcoming book with Frank Zimring at Berkeley on the Criminal Law and Regulation of Vice, traces the total sentenced population of the federal prison system and the number of federal prisoners for whom the most serious offense was a drug offense:

As I noted before, drug use may intersect in complicated ways with mental health issues, and some users may well be self-medicating. But the numbers associated with the war on drugs clearly transcend these possible connections.

As a result, the story is not simple trans-institutionalization. It is not simply substitution from one institution to another. But that does not mean that the populations are not sufficiently connected or similar in more important ways to be thought of as one – or counted as one. Could it be that we use the categories to socially exclude people we perceive as marginal, disorderly, abnormal? Do we use the categories to sift out those who offend our sensibilities and who we perceive as dangerous? Michel Foucault observed in Madness and Civilization that “There must have formed, silently and doubtless over the course of many years, a social sensibility, common to European culture, . . . that suddenly isolated the category destined to populate the places of confinement. To inhabit the reaches long since abandoned by the lepers, they chose a group that to our eyes is strangely mixed and confused. But what is for us merely an undifferentiated sensibility must have been, for those living in the classical age, a clearly articulated perception.”

Today, the categories of “mental illness” and “criminal deviance” seem very distinct. With the exception of those inmates who are diagnosed as suffering from mental illness, it seems wrong or confused to lump together the insane and the criminal, to mix the two categories. But is it? Will later generations question our own inability to see the continuity of social exclusion and confinement?

One place where the categories seem to be melding together is in the prediction instruments that we use to identify future dangerousness. We are now profiling the criminally dangerous, the mentally instable, and future sexual offenders in very similar ways. I trace the history of our profiling instruments in a new book, Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age.

We’ve seen a rash of new actuarial instruments intended to predict future violent behavior. In terms of sexual violence, these include the Static-99, the Violence Risk Appraisal Guide (VRAG), the Hare Psychopathy Checklist-Revised (PCL-R), the Minnesota Sex Offender Screening Tool (MnSOST-R), the Sex Offender Risk Appraisal Guide (SORAG), the Sexual Violence Risk-20 (SVR-20) and the HCR-20 — as well as, for the very first time, released in 2005, violence risk-assessment software, called the Classification of Violence Risk (COVR).

How accurate are these prediction instruments and how will they affect the profiled populations? John Monahan, a leading authority on prediction instruments, a proponent of these instruments (in fact co-author of the new COVR software), and the director of the MacArthur Violence Risk Assessment project, offers a nuanced assessment. Writing in The Observer, Monahan asks: “How good are psychiatrists and psychologists at distinguishing which people with a mental illness will be violent? Research shows professionals are better than pure chance, but not much. Predicting harmful behaviour is like predicting bad weather. An inaccurate prediction doesn't necessarily mean the clinician or the meteorologist has 'missed something'; it may just mean the science of forecasting has a long way to go.”

Not much better than pure chance. Virginia just adopted a Sexually Violent Predators Act (“SVPA”) in April 2003 that provides for the civil commitment of sex offenders identified based on the Rapid Risk Assessment for Sex Offense Recidivism (RRASOR) – an actuarial instrument. The RRASOR consists of four items (prior sexual offenses, age at release, victim gender, and relationship to victim) and scores as a sum these four items. A score of 4 or more on the RRASOR (the higher scores) is associated with a 5-year sex offense recidivism rate of 37% and a 10-year sex offense recidivism rate of 55%.

Fifty-five percent — and remember, these are persons who have previously been convicted (rightly or wrongly) of a sexually violent offense. That leaves almost half the relevant population misidentified, at least for that 10-year span. Accuracy and inaccuracy may be in the eye of the beholder. (I discuss the reliability of other actuarial instruments in Against Prediction, reviewing studies like these here and here). The question is, how will these new actuarial methods and predictions of future dangerousness shape the people in our total institutions?

UPDATE MAY 4, 2007: John Monahan tells me that Virginia last year changed it's Sexually Violent Predators statute to require not the RRASOR but the Static-99. The Static-99 has slightly different cut-off scores depending on the age of the victim.

J.RR. Tolkien's Children of Hurin:

J.R.R. Tolkien's The Children of Hurin is now in print, and I just finished reading my recently arrived copy. Since Tolkien died in 1973, this book is actually a "reconstruction" by Tolkien's son Christopher Tolkien, working from his father's extensive unpublished notes and story fragments. I blogged about the debate over the "reconstruction" back in October, in this post. I think that the resulting book vindicates my prediction in the earlier that:

There is every reason to expect that Christopher Tolkien will do an equally good job of putting together The Children of Hurin [as he did with the earlier reconstruction of The Silmarillion], and that he will do his best to carry out his father's intentions.

The result will not be as good a book as might have emerged had J.R.R. Tolkien lived to finish it himself. But it will still reflect Tolkien's style and ideas, and will almost certainly be a lot better than nothing.

The book does indeed "reflect Tolkien's style and ideas." From just reading it, I would not have guessed that it was "reconstructed" as extensively as we know it has been. In many ways, the book is an expansion of the telling of the same story in the Silmarillion (where it is entitled "The Tale of Turin Turambar"). However, Children of Hurin broadens and deepens the tale and develops the characters better. To me, the most important difference is that the expanded version makes it much clearer that the hero suffers more from his own hubris and overly aggressive tactics than from bad luck or "fate." The story also emphasizes Tolkien's view (perhaps influenced by his experiences in World War I) that waging war against evil often requires time and patience, avoiding both premature defeatism and premature large-scale offensives.

The book is not without some shortcomings. But, overall, it is an impressive achievement by both J.R.R. and Christopher Tolkien. Anyone with any interest in Tolkien's work should definitely read it. And, no, the Tolkien family and their publishers didn't pay me to write that:).

The Post-Kelo Reform Debate Continued:

Bert Gall of the Institute for Justice has responded to my Reason Online article about Post-Kelo eminent domain reform. Bert's assessment of the state of eminent domain reform is more optimistic than mine.His piece is here. Most of the arguments he raises are similar to those he made in our earlier debate on this issue right here at the VC. For my take on his arguments, I refer you to my posts in that debate (see here and here; these posts also contain links to Bert's earlier posts).

Bert's Reason article does, however, contain two minor (and surely unintentional) misrepresentations of my argument. First, Bert claims that "Somin states that only 14 states have provided significantly increased protections for property rights." That is not correct. In fact, I wrote that only 14 state legislatures have enacted effective post-Kelo eminent domain reforms. Later on in my Reason article (as in my earlier writings on this issue), I emphasized that at least six states have enacted effective post-Kelo reforms by referendum. Four of them had not previously enacted effective reforms through the ordinary legislative process. Indeed, as I explain in greater detail in the paper on post-Kelo reform that kicked off this debate, the difference between citizen-initiated referenda and legislative efforts is a major part of my explanation for the pattern of reform that we have seen.

Second, Bert points to court decisions curtailing Kelo-like takings in several states, and implies that these refute my argument. However, my analysis specifically addresses only reforms enacted through the political process, and was in part meant to rebut claims that political reform would obviate the need for judicial intervention. I join Bert in applauding these decisions, and have in fact analyzed some of them in my own writings (e.g. - here).

But pointing to court decisions in no way refutes my arguments about legislative reform. Moreover, it is far from clear that these court decisions are the result of the Kelo backlash, since nine state supreme courts had forbidden economic development takings even before Kelo (two - Ohio and Oklahoma - have done so since then, and two or three others have limited takings in other ways). In sharp contrast to state legislatures (of which only one - Utah - acted before Kelo), several state supreme courts struck down economic development takings in the decade immediately proceeding Kelo. They include Montana (1995), Illinois (2002), South Carolina (2003), and Michigan (2004). For details, see my paper on the Michigan case, County of Wayne v. Hathcock. A complete listing of state cases is in Note 7 in this article.


Wednesday, May 2, 2007

Monica Goodling and AUSA Hiring: It will be interesting to see what this DOJ investigation turns up.
A Brilliant Academic Presentation Using PowerPoint Slides: The topic? Chicken. The Q&A at the end is particularly informative. (Hat tip: ZSM)
The New York Times on Zingerman's

an Ann Arbor institution that has to be the most overrated deli in the world. Not that it's bad. It just doesn't live up to its reputation, unless what you're looking for is a Midwestern translation of an upscale New York deli (which, if you're actually used to New York delis--unfortunately a dying breed--you almost certainly are not), with New York prices and beyond. Actually, some of its products, like bagels, are affirmatively bad, which would be forgiveable given the location if Zingerman's didn't have it's own bakery.

If you're in Ann Arbor and find yourself with a hankering for New York-style food, I recommend NYPD, a pizzeria with two locations. It doesn't compare with the best of Brooklyn, but it's way better than anything I've found in the entire D.C. metro area, so far.

Faculty Hiring Priorities at Colgate University:

Inside Higher Ed reports on Colgate's new approach to faculty hiring:

Which is more important — that a department have all of its disciplinary subfields represented or that it diversify its faculty? That’s the question being posed at Colgate University in an attempt to change how hiring committees have considered questions of diversity — and posing the question may be having an impact.

Lyle Roelofs, dean of the faculty, has been asking the question. Roelofs said that individual departments make the hiring decisions — “departments know how to judge quality” — but that as part of broad discussions about diversity at the university, he has tried to suggest some new ideas. Traditionally, he said that there has been a broad consensus (even if no formal policy exists) that the top factor to consider in a faculty hire is excellence in teaching and research, followed by match of candidates with the subfield specialties needed, then followed by diversity concerns.

After a series of efforts, Colgate has seen the percentage of minority faculty members rise to about 20 percent, with the percentage of women topping 40 percent. But as a small liberal arts university in a rural setting, Colgate has a hard time holding on to minority professors — and so needs to keep hiring them as well as trying to encourage more of them to make their careers at the university. Roelofs has asked departments to flop the second and third criteria. Excellence will stay on top, but diversity would generally trump subfield choice.

“There are going to be appropriate gains for us if we can be more diverse,” Roelofs said. “When you have a more diverse faculty, there emerges a greater diversity in curriculum. Greater value is placed on difference. So why not think about each hire and say, ‘in this situation are we better off thinking about how we need someone on 18th century reflection of Shakespeare, or have a broad description to maximize our opportunities on diversity?’ “

Civil unions pass in Oregon:

Two weeks after the state house did so, today the state senate voted to grant same-sex couples all of the rights, benefits, and responsibilities of married couples under state law. The governor has said he will sign the bill. As in the other states that have adopted civil unions, the new status is limited to same-sex couples and includes the age, consanguinity, capacity and other requirements to enter a marriage. Unlike marriage, there is no requirement of a solemnizing ceremony. The bill itself describes the status as a "binding civil union contract." Its text can be found here.

From the legislative findings:

(3) Many gay and lesbian Oregonians have formed lasting, committed, caring and faithful relationships with individuals of the same sex, despite long-standing social and economic discrimination. These couples live together, participate in their communities together and often raise children and care for family members together, just as do couples who are married under Oregon law. Without the ability to obtain some form of legal status for their relationships, same-sex couples face numerous obstacles and hardships in attempting to secure rights, benefits and responsibilities for themselves and their children. Many of the rights, benefits and responsibilities that the families of married couples take for granted cannot be obtained in any way other than through state recognition of committed same-sex partnerships.

(4) This state has a strong interest in promoting stable and lasting families, including the families of same-sex couples and their children. All Oregon families should be provided with the opportunity to obtain necessary legal protections and status and the ability to achieve their fullest potential.

(5) Sections 1 to 9 of this 2007 Act are intended to better align Oregon law with the values embodied in the Constitution and public policy of this state, and to further the state's interest in the promotion of stable and lasting families, by extending benefits, protections and responsibilities to committed same-sex partners and their children that are comparable to those provided to married individuals and their children by the laws of this state.

(6) The establishment of a civil union system will provide legal recognition to same-sex relationships, thereby ensuring more equal treatment of gays and lesbians and their families under Oregon law.

Oregon joins California, Connecticut, Massachusetts, New Hampshire, New Jersey, and Vermont in extending all of the benefits and responsibilities of marriage to same-sex couples. Hawaii, Maine, Washington state, and D.C, grant legal recognition and some of the rights of marriage to same-sex couples. That makes ten states (plus DC) recognizing and protecting gay families to some extent. Seven of these have done so legislatively; the other three under court compulsion.

Oregon is different in one important respect from the other states that have so far adopted civil unions. Unlike the other civil-union states, there's a possible legal challenge to the new law in Oregon: the state passed a constitutional amendment in 2004 limiting marriage to one man and one woman. While the new law does not let gay couples marry, opponents can be expected to argue that granting the substance of marriage to gay couples without the name nevertheless violates the state constitution. However, a difference between the Oregon constitutional amendment and many other state marriage amendments is that it did not ban marriage and "the equivalent of marriage" for same-sex couples. It was thus a narrower amendment than the ones that have passed elsewhere. Whether that sort of difference will save the new civil union law in Oregon state courts remains to be seen.

Wisconsin Right to Life vs. FEC

This is the case, recently heard by the Supreme Court, that may place some First Amendment limits on McCain-Feingold's speech-suppression laws. The amicus brief in which the Independence Institute participated is here. A collection of other briefs and documents is here. It is a good test case because the advertisement in question (urging Wisconsin citizens to tell Senator Feingold stop supporting the filibusters of Bush-nominated judges) was plainly a communication about the business of Congress, rather than a thinly-disguised campaign advertisement (e.g., "Tell Senator Snort that you're upset that he was arrested for domestic violence 10 years ago.") Yet the advertisement was claimed to be illegal by the FEC because it was aired within 60 days of the general election.

"Lawful Incest May Be on the Way" -- But It's Already Here!

Jeff Jacoby reports on calls in Germany for decriminalizing adult brother-sister incest. "Parts of Europe are already heading down this road. In Germany, the Green Party is openly supporting the Stubings in their bid to decriminalize incest. 'We must abolish a law that originated last century and today is useless,' party spokesman Jerzy Montag says. Incest is no longer a criminal offense in Belgium, Holland, and France. According to the BBC, Sweden even permits half-siblings to marry." He closes:

Your reaction to the prospect of lawful incest may be "Ugh, gross." But personal repugnance is no replacement for moral standards. For more than 3,000 years, a code of conduct stretching back to Sinai has kept incest unconditionally beyond the pale. If sexual morality is jettisoned as a legitimate basis for legislation, personal opinion and cultural fashion are all that will remain. "Should Incest Be Legal?" Time asks. Over time, expect more and more people to answer yes.

We've blogged about incest and the law before; in particular, I've discussed adult stepparent-stepchild incest, and it seems to me there are comparable arguments for continuing to ban adult sibling incest. I don't want to suggest that bans on adult incest are categorically improper, or that they're proper. But I do want to raise one interesting item related to the "code of conduct stretching back to Sinai" -- it turns out that this code doesn't ban uncle-niece incest.

What's more, at least one state (Rhode Island) exempts Jews from its ban on uncle-niece incest, including the ban on uncle-niece marriages. (given modern religious equality jurisprudence, I take it that this would be extended to anyone whose religious beliefs mirror orthodox Jewish beliefs on the subject). Colorado and Minnesota likewise follow the Uniform Marriage and Divorce Act in exempting uncle-niece marriages that are "permitted by the established customs of aboriginal cultures." Some states therefore not only fail to criminalize all such marriages, but will actually legally recognize them. At least one state, Oregon, doesn't criminalize uncle-niece sex at all (O.R.S. § 163.525) but doesn't recognize such marriages (O.R.S. § 106.020).

Now maybe this is just a historical oddity; my sense is that very few women want to marry their uncles. But my sense is also that very few siblings want to marry each other. So the questions for those who rest on the importance of 3000-year traditions remain: Should we be as respectful of this tradition when it allows adult uncle-niece sex, but bars adult sibling-sibling sex (including among siblings who were raised separately, which I believe is what had happened in the German case Jacoby mentioned)? Should we stick with the tradition, and allow uncle-niece marriages while barring sibling-sibling marriages? Or should we focus less on the 3000-year-old tradition, and more on what seems sensible now?

Escheating Scandal:

OK, this Ninth Circuit case is not terribly exciting legally, but it's practically useful, and it lets me say "escheating scandal." (No google references for that until now; a poor gag, but mine own.) An excerpt from an earlier, more detailed decision in this litigation:

[The case is filed] by two individuals against the state controller. One, Chris Taylor, a former Intel employee, lives in England and owns 52,224 shares of Intel stock. The other, Nancy Pepple- Gonsalves, a former TWA flight attendant, lives in California, in Riverside County, and owns 7,000 shares of TWA stock. Or at least they did own the stock, before the state took it away.

The state controller took Mr. Taylor’s and Ms. Pepple- Gonsalves’s stock as “unclaimed property.” But these individuals do, in this lawsuit, claim it. The property was treated as unclaimed because for three years these two individuals did not cash dividend checks, respond to proxy notices, or otherwise communicate to the companies in which they owned stock. Intel and TWA provided the State of California with lists of shareholders who were “lost” or “unknown” by these three criteria, as required by law, and issued “duplicate shareholder certificates” to the state. The Controller then sold the stock and deposited the money received in exchange into the state’s general fund.

This case is about escheat. Escheat, at common law in England, formerly terminated a tenancy so that on the death of a tenant without heirs, or as a result of a tenant’s felony that worked a corruption of the blood, the land escheated to the lord of the fee. Title by escheat “was one of the fruits of and consequences of feudal tenure.” “But, as the feudal tenures do not exist in this country, there are no private persons who succeed to the inheritance by escheat; and the state steps in the place of the feudal lord, by virtue of its sovereignty, as the original and ultimate proprietor of all the lands within its jurisdiction.” Escheat of tangible or intangible personal property arises from the same conceptual scheme....

The escheat problem, in this case, arises from a new approach used by some state governments, greatly shortening the time before which untouched property is treated as though it had been abandoned, greatly reducing or eliminating notice to the true owner, and ignoring the true owner’s pleas. For example, California is taking the flight attendant’s stock in her airline on the basis, basically, that she cannot be found, even while she is standing in court shouting, “Here I am! Here I am! Give me my money!” And the State of California turns a deaf ear, pretending it cannot hear her.

The latest decision reverses the district court's denial of an injunction, and suggests, "because the Supreme Court spoke so clearly in Jones v. Flowers, and because we spoke on the precise issues in this case twice -- first in Taylor I and again in Suever v. Connell -- without California taking any action to remedy the constitutional problem with its escheat statute, the district court may wish to consider whether some sort of supervision, such as requirement of court approval of new regulations, is necessary."

Related Posts (on one page):

  1. Escheating Scandal:
  2. Cheating Scandal at Duke Business School:
Make Money Fa$T!

No, really, it looks like you can get some money quickly, if you live or have lived in California, and have some unclaimed property. I checked the Unclaimed Property Search site, and found some friends of mine have a couple of hundred bucks here or there coming to them.

Shockingly, my name isn't on there, despite my scatterbrainedness in matters financial. I was sure I must have mislaid something. Better check the sofa cushions again.

Many thanks to the Ninth Circuit's "escheating scandal" ruling (pointed to by How Appealing), which alerted me to this. If you find some money, send 10% to the Institute for Justice — or donate it to the Ninth Circuit, if you prefer.

Amusing tidbit from the "standing" section of the Ninth Circuit opinion:

Although plaintiffs’ newly acquired knowledge of the law — and their ability to monitor their property — can perhaps reduce the likelihood of again having their property escheated without notice, it does not make this likelihood “remote.” Indeed, that plaintiffs’ knowledge of the law (gained from their experience in this case) will not adequately protect them is demonstrated by the experience of judges who have participated in this very case. Although these judges also know the law, one district judge recused himself after an escheat of his own property was discovered, and the district judge to whom the case was reassigned avoided recusal only by waiving his interest in escheated property listed on the Controller’s website and by obtaining the parties’ stipulation to his continued participation.

Related Posts (on one page):

  1. Make Money Fa$t Reminder:
  2. Make Money Fa$T!
I Forgot the Day of Remembrance!

Here's the May Day Remembrance, from The Distributed Republic (formerly Catallarchy).

[Bernard Harcourt, guest-blogging, May 2, 2007 at 7:15am] Trackbacks
Institutionalization vs. Imprisonment: Are There Massive Implications for Existing Research?

Andrew Gelman at Columbia University writes on his statistics blog here that the findings I discussed yesterday seem correct and don’t surprise him in the least. (He also has some entertaining reactions to some of the comments from yesterday).

I’ll confess that I not only find the results surprising, I also think that, if they are indeed right, they have farreaching implications for our existing (and future) research on prisons and their effect on unemployment, crime, education, and poverty, as well as our research on gun laws (think of the right-to-carry debates here, here, and here), the effect of abortions (think of the Donohue/Levitt thesis), the deterrent effect of the death penalty (think of the recent debates here), social control and disorganization theories, collective efficacy – and the list goes on.

In practically all those studies, we have used the imprisonment rate to measure society’s level of incapacitation. But the prison rate alone may not capture what we were trying to measure. The most straightforward interpretation of my findings is that neither the rate of imprisonment alone, nor the rate of mental hospitalization alone are good predictors of serious violent crime over the period 1934-2001. In contrast, the aggregated institutionalization rate (aggregating the mental hospitalization and prison rates) is a strong predictor of homicides. This suggests that there is something going on in the relationship between mental hospitalization and prison — perhaps a form of substitution — that should make us rethink entirely how we measure social control and incapacitation.

But since practically none of our studies on prisons, guns, abortion, education, unemployment, capital punishment, etc., controls for institutionalization writ large, most of what we claim to know about these effects may be on shaky ground.

Here’s a good example. My colleague Steve Levitt at the University of Chicago has a great paper on the crime decline of the 1990s published in the Journal of Economic Perspectives called Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six that Do Not. In the paper, Levitt identifies the prison-population build up as one of the four factors that explains the crime drop of the 1990s.

Levitt estimates that the increased prison population over the 1990s accounted for a 12% reduction of homicide and violent crime, and an 8% reduction in property crime — for a total of about one-third of the overall drop in crime in the 1990s (see pages 178-79). The paper and its progeny have given rise to fascinating debates over the role of the police (Malcolm Gladwell takes Levitt to task in an interesting post here), the abortion thesis, and the role of broken-windows policing vs. the crack epidemic.

What interests me here, though, is that when Levitt extends his analysis to discuss the period 1973–1991, he sticks to the prison population exclusively and does not consider the contribution of the declining mental hospital population (see pages 183-86). As a result, Levitt is surprised that the drop in crime did not start sooner (see page 186). Regarding the period 1973–1991, Levitt writes:

"The one factor that dominates all others in terms of predicted impact on crime in this earlier [1973–1991] period is the growth in the prison population. Between 1973 and 1991, the incarceration rate more than tripled, rising from 96 to 313 inmates per 100,000 residents. By my estimates, that should have reduced violent crime and homicide by over 30 percent and property crime by more than 20 percent. Note that this predicted impact of incarceration is much larger than for the latter [1990s] period." (page 184)

Based on prison data alone, Levitt is left with a significant gap between projected and actual crime rates for the period 1973–1991. Levitt concludes: “The real puzzle in my opinion, therefore, is not why crime fell in the 1990s, but why it did not start falling sooner” (see page 186).

The unexplained difference, though, vanishes if we include mental hospitalization with the prison rate in an aggregated institutionalization variable. I do the math in this paper here at page 1775. The increase in confinement from 1973 to 1991 would have been smaller (because of deinstitutionalization) and, based on Levitt’s estimates, this would have translated into a 12% decrease in homicides, not a 35% decrease. Levitt’s revised estimate for the total effect of his ten factors on homicide during the 1973–1991 period would be an increase in homicides of 3%, which is not far from the actual reported change in the UCR of a positive 5%.

In other words, using aggregated institutionalization data rather than prison data would eliminate Levitt’s disparity regarding the change in homicides. This is just one example that explains a gap. But think of all the other areas where the difference might undermine the results.

Here's another example from the death penalty deterrence debates. The fact is that none of the existing extensive research on the deterrent effect of capital punishment has included mental hospitalization within an aggregated institutionalization rate. Instead, all the studies use prison rates only to get at a measure of incapacitation.

My study includes, as a control variable in the regressions, the execution rate for each state over the period 1934 to 2001. So we can get some idea of what happens when you use aggregated institutionalization rather than the prison rate. The results are interesting: in my fourth model (Model 4 of Table III.1 at page 33), the execution rate is positively related to homicide and statistically significant at .05, suggesting that, controlling for aggregated institutionalization, there may be evidence of a brutalization effect from executions: more executions, more homicide. The statistical significance does not withstand the introduction of demographic and urban variables, and in my most complete model (Model 6 same page) the coefficient is positive but unreliable.

Much has been written recently about the deterrent effects of capital punishment. John Donohue and Justin Wolfers have reviewed the recent studies, including state-level panel data analyses, and conclude that “none of these approaches suggested that the death penalty has large effects on the murder date” (page 841). When I include mental hospitalization, my findings are consistent with these conclusions, but in the process they undermine a lot of other research.

Practically all our criminology has failed to connect the prison to the asylum. For instance, Alfred Blumstein and Joel Wallman, in their account of crime trends in the introduction to The Crime Drop in America — generally perceived as an authoritative compilation — never address aggregated institutionalization. With regard to the sharp increase in crime in the 1960s, Blumstein and Wallman hit on all the usual suspects — the baby-boom generation, political legitimacy, economics — and include later the usual explanations for the 1990s crime drop — changing drug use patterns, decreased gun violence, New York-style policing, the federal COPS program, and increased incarceration. Notably absent in all of this, though, is the relationship between mental health and prison populations.

With the exception of research that specifically explores the interdependence of the mental hospital and prison populations, including some public health studies and some empirical research into the causes of the prison explosion (for instance here, here and here) published empirical research does not conceptualize the level of confinement in society through the lens of aggregated institutionalization (asylum + prison) but rather simply through imprisonment rates.

Even the most rigorous, recent analyses of the prison-crime relationship use only imprisonment data. Though a tremendous amount of empirical work has been done on long-term crime trends, structural covariates of homicide, unemployment, and the prison expansion, none of this literature conceptualizes confinement through the larger prism of institutionalization, and none of it aggregates mental hospitalization data with prison rates.

So in contrast to Andrew Gelman, I’m not only surprised by the results of the regression, I’m also extremely concerned about the implications regarding the state of our current knowledge and existing research. And, unhappily, in contrast to Gelman's just-so post, I expect a huge amount of resistance.


Tuesday, May 1, 2007

$67 Million Lawsuit Over a Pair of Pants: Please tell me that this story is some sort of joke.
Pre-1966 Deaths from Illegal Abortion:

An April 24 article in the Rocky Mountain News states:

The University of California School of Public Health estimated that before 1966, an estimated 5,000 to 10,000 women died each year in the U.S. from complications of illegal abortions.
Trying to find out more about this study, I found that it was cited in a 1966 book by Lawrence Lader, Abortion. (See note 21 here for a secondary citation.)

Do any readers have additional information about this study, or know of additional research on the levels of pre-1967 maternal deaths from illegal abortion in the U.S.

Please confine your comments to this factual issue, and do not argue the broader pro/con merits of the abortion question.

Are Main Law Reviews at the Top 50 Law Schools Considering Submissions During the Summer?

If you're on a main (non-specialty) law review at a top 50 law school, can you please post a comment indicating (1) what journal you're on, (2) whether you folks are considering article submissions during the summer, which is to say whether you are prepared to make offers during the summer (even if more slowly than normal), and (3) if you aren't considering submissions during the summer, when you close and when you reopen? Both our legal academic readers and I myself would be much obliged. Thanks!

Alexander Hamilton and Infanticide:

A blogger for a weekly local community insert the Denver Post/Rocky Mountain News wrote:

If you look hard enough you can find the transcript of a young State Senator Alexander Hamilton of New York arguing eloquently and effectively against a bill that would require a witness be present at birth to ensure the mother did not kill her baby. His reasoning? Her fundamental right to privacy.

Do any readers have more information on this? Hamilton never served in the New York State Senate, but he did serve in the N.Y. Assembly in 1787, before joining the Continental Congress in 1788. The author claims that Roe v. Wade based itself on the Fourth Amendment (rather than 14th), so I am not confident about his factual meticulousness.

Revisiting 'Three Questions for the Pro-War Blogosphere': Congress has sent the President its war spending bill, and as expected, President Bush has vetoed it. I think it's an interesting moment to revisit a post I put up almost three years ago, "Debating the Invasion of Iraq — Three Questions for the Pro-War Blogosphere." Here's the post, dated September 27, 2004:
  A year and a half have now passed since the invasion of Iraq. If you read the papers these days, the news coming from Iraq seems awfully depressing. The country is suffering about 70 hostile attacks a day, and 900 U.S. soldiers have died since the declared end of the hostilities — a rate of about 2 U.S. soldiers every day. Over 90% of Iraqis see the U.S. as an occupying force. Meanwhile, classified U.S. intelligence reports are pretty gloomy about what will happen in Iraq in the coming years. While U.S. public opinion on the war in Iraq seems evenly divided, right now the picture looks grim. I'm no expert in foreign policy, and wasn't sure whether the invasion was a good idea in the first place, but my sense is that attitudes towards the war in Iraq are becoming increasingly sour.

  So here's a little experiment in blogospheric dialogue. I would like members of the hawkish side of the blogosphere to post responses on their blogs to three questions I have about the situation in Iraq. In exchange, I'll post links to the answers on the Volokh Conspiracy. Here are my questions:

  First, assuming that you were in favor of the invasion of Iraq at the time of the invasion, do you believe today that the invasion of Iraq was a good idea? Why/why not?

  Second, what reaction do you have to the not-very-upbeat news coming of Iraq these days, such as the stories I link to above?

  Third, what specific criteria do you recommend that we should use over the coming months and years to measure whether the Iraq invasion has been a success?
  You can revisit the responses here and here, although unfortunately a number of the links no longer work.

  I'd be curious to hear from bloggers who responded back in 2004 — or more generally, from those who were hawkish in 2004, when that post appeared — about whether and how your views have changed in the last 3 years. Do you agree today with what you said in 2004? Has the war developed as you expected? How would answer these three questions today?

  UPDATE: It's also interesting to revisit the comments to the October 2006 post, "When Will U.S. Troops Leave Iraq?"
A May Day Proposal:

Today is May 1, AKA May Day. May Day began as a holiday for socialists and labor union activists, not just communists. But over time, the date was taken over by the Soviet Union and other communist regimes and used as a propaganda tool to prop up their regimes. I suggest that we instead use it as a day to commemorate those regimes' millions of victims. The authoritative Black Book of Communism estimates the total at 80 to 100 million dead, greater than that caused by all other twentieth century tyrannies combined. We appropriately have a Holocaust Memorial Day. It is equally appropriate to commemorate the victims of the twentieth century's other great totalitarian tyranny. And May Day is the most fitting day to do so. I suggest that May Day be turned into Victims of Communism Day. I am, of course, open to suggestions for the official name of this day of commemoration. Maybe someone will come up with a better one than I have.

The main alternative to May 1 is November 7, the anniversary of the communist coup in Russia. However, choosing that date might be interpreted as focusing exclusively on the Soviet Union, while ignoring the equally horrendous communist mass murders in China, Camobodia, and elsewhere. So May 1 is the best choice.

UPDATE: I don't claim that this idea is original, as I suspect that it has been suggested before. But whether original or not, I think it should be pursued, perhaps in conjunction with the opening of the Victims of Communism Memorial, scheduled for June 12.

Cheating Scandal at Duke Business School:

"Duke's business school punishes 34 graduate students for cheating":

Nine students face expulsion from the competitive two-year program, which will cost first-year students in 2007 almost $50,000 for tuition, books and a laptop computer. Another 15 students could be suspended for one year and receive a failing grade in the course.

Nine others are set to get a failing grade, and one student could receive a failing grade on an assignment separate from the exam. Four others were found not guilty ....

Related Posts (on one page):

  1. Escheating Scandal:
  2. Cheating Scandal at Duke Business School:
"Monday Morning Quarterback" Law + Shout-Out:

The Seventh Circuit tells us:

Trial tactics are a matter of professional judgment, and ... we will not play “Monday morning quarterback”1 when reviewing claims that an attorney rendered constitutionally deficient representation in making decisions on how best to handle a case.

1 Of course, “Monday morning quarterback” is now passé since the advent of “Tuesday Morning Quarterback,” the terrific column regularly posted by Gregg Easterbrook on See NLRB v. Cook County, 283 F.3d 888, 895 n.[4] (7th Cir. 2002). In light of the column and the marquee “Monday Night Football” NFL games from September through December each year, we think the term “Monday morning quarterback,” from now on, should go the way of the drop-kick, the “T” formation, the Statue of Liberty play, and offensive tackles who weigh less than 300 pounds. From now on, a second-guesser should be called a “Tuesday Morning Quarterback.”

Coincidentally, Gregg Easterbrook is the brother of Seventh Circuit Judge Frank Easterbrook, who did not write the opinion but was on the panel.

Thanks to Greg Weber for the pointer.

Apparent Trouble at Ave Maria Law School:

Mirror of Justice posts a letter from Ave Maria faculty members that suggests there are some extremely serious problems at the school. The letter is at times short on details, and is not individually signed; but Mark Sargent, dean at Villanova, passed it along, and another source I trust reports that the allegations are indeed quite credible.

I would of course be glad to post any response from the school itself, or from others.

Column Width on Internet Explorer:

The figures in some of the posts below are causing the site to appear too wide on Internet Explorer. I'm not sure, though, why this is so -- I've changed the IMG tags to specify WIDTH="60%", and they indeed don't seem too wide, even given that the text of the post appears in a column that's less wide than the whole screen. Can any tech mavens let me know what the problem likely is? Many thanks!

Collateral Estoppel and Fracture (the Movie) -- a Key Legal Flaw?

Spoiler alert! If you plan on seeing Fracture and don't want to know the plot, do not read the following. I'll explain the key plot twist below for those who haven't see the movie and don't mind the spoiler.

Boehner v. McDermott, Round V:

The U.S. Court of Appeals for the District of Columbia issued its en banc decision in Boehner v. McDermott, the long-running litigation between Republican Congressman John Boehner and Democratic Congressman James McDermott over whether McDermott violated federal law when he gave to the press a tape recording of an illegally intercepted cell phone conversation in which Representative Boehner participated. In a divided opinion, the D.C. Circuit affirmed the lower court's judgment in favor of Boehner.

The line-up of today's decision is quite interesting. The court effectively split 4-1-4. Judge Randolph wrote the majority opinion, holding that McDermott's disclosure of the tape was not protected by the First Amendment and vioalted House Ethics rules. He was joined by Chief Judge Ginsburg and Judges Henderson and Brown. Judge Sentelle wrote the dissent, arguing that McDermott's disclosure of the tape was fully protected by the First Amendment. His dissent was joined in full by Judges Garland, Rogers, and Tatel. Judge Griffith split the difference, joining the first part of Sentelle's dissent, but ultimately joining the majority. As Griffith explained:

Although I agree that Representative McDermott’s actions were not protected by the First Amendment and for that reason join Judge Randolph’s opinion, I write separately to explain that I would have found the disclosure of the tape recording protected by the First Amendment under Bartnicki v. Vopper, 532 U.S. 514 (2001), had it not also been a violation of House Ethics Committee Rule 9, which imposed on Representative McDermott a duty not to “disclose any evidence relating to an investigation to any person or organization outside the Committee unless authorized by the Committee.” Although the Court does not and need not reach the Bartnicki issue to resolve the matter before us, two previous panels in this case have held that the congressman’s actions were not protected by the First Amendment. I believe it is worth noting that a majority of the members of the Court—those who join Part I of Judge Sentelle’s dissent—would have found his actions protected by the First Amendment. Nonetheless, because Representative McDermott cannot here wield the First Amendment shield that he voluntarily relinquished as a member of the Ethics Committee, I join Judge Randolph’s opinion in concluding that his disclosure of the tape recording was not protected by the First Amendment.
Is this the last we have heard of this case? I would suspect so. Although this is a fascinating case that presents some interesting questions, I doubt the Supreme Court would accept a petition for cert (although that prediction is worth even less than you paid for it).

[Bernard Harcourt, guest-blogging, May 1, 2007 at 7:10am] Trackbacks
Mental Hospital, Prison, and Homicide Rates: Some More Analyses.

Yesterday’s post triggered a lot of comments regarding this graph – it’s on page 23 of the new study on asylums and prisons that I was discussing previously. The figure graphs two time-series using national-level data: the overall rate of institutionalization in the United States (in mental hospitals and prisons) and the homicide rate over the period 1934 to 2001. The institutionalization trend line is scaled to the left-hand side and is high throughout the 1930s, 40s, and 50s; the homicide trend line is scaled to the right-hand side and rises sharply in the 1970s and 80s.

FIGURE: Rates of Aggregated Institutionalization and Homicide in the United States (per 100,000 adults).

In an earlier paper, I analyzed these data using a Prais-Winsten regression model to correct for autocorrelation in the time-series data. I found a large, robust, and statistically significant relationship between aggregated institutionalization (asylums and prisons) and homicide rates at the national level, holding constant three leading structural covariates of homicide (youth demographics, unemployment, and poverty).

The problem with using time-series data for a single jurisdiction (in this case, the entire United States) is that they typically provide weak power to rule out alternative explanations for the patterns observed in the data. This is something I’ve observed and written about in the context of Giuliani-style policing. (In an article with Jens Ludwig testing the broken-windows policing hypothesis, we showed that the time-series data for crime in New York City was not just compatible with a broken-windows policing theory, but also with what we call the “Broken Yankees Hypothesis” (BYH). It turns out that the strong performance of Billy Martin’s Yankees teams during the late 1970s coincided with a drop in homicides, and the consistent excellence of Joe Torre’s squads beginning in the late 1990s accompanied an even greater decline in homicides).

In order to test the national-level findings, I collected state-level panel data and ran clustered regressions. The results were truly remarkable. Using state-level panel data spanning the entire period from 1934 to 2001, including all 50 states, and controlling for economic, demographic, and criminal justice variables, I again found a large, robust, and statistically significant relationship between aggregated institutionalization and homicide rates. The findings are not sensitive to weighting by population and hold under a number of permutations, including when I aggregate jail populations as well.

To help visualize the relationship, I plotted the predicted values of homicide in the final model (Model 6) against the aggregated institutionalization rate. These, then, are the predicted values of homicide from the model including all the independent variables (aggregated institutionalization, real per capita income, demographics, execution rate, proportion urban, proportion black, and state and year fixed effects). The data are clustered by state, resulting in what appear to be some strings of observations.

Some readers have suggested that the study should include a model with the prison rate and the mental hospitalization rate as separate independent variables. John Lott recently wrote to me “I don't understand why prison population and [mental hospitalization] only seemed to be entered in as a sum." Eric Rasmusen similarly argues here that “There is another regression you absolutely must do: regress murder on [aggregated institutionalization], prison, and asylums all in one regression. That will separate out the effects.”

These are interesting points and something my superb colleagues at the University of Chicago, Tom Miles and Jake Gersen, had batted around with me earlier. My concern is the contribution of aggregated institutionalization and I am really not concerned about the relationship of the parts. I had included some of these regressions in the study, but for the sake of completeness, I just now reran the regressions using every possible permutation of aggregated institutionalization, mental hospitalization alone, and prison rates alone. Every possible permutation — all three, each alone, and every dual-combination.

Here’s a table summarizing my results. I’ll just note for those who are not steeped in stats that the first model, which includes all three independent variables is going to drop one of them. It’s actually impossible to use all three in the same regression. If you include the sum of two variables and each of those two variables, there is a co-linearity problem (since the sum is of course a linear combination of the two). Statistics programs fix this problem by tossing out one of the variables. In this case, STATA dropped the mental hospitalization alone variable. So Model 1 is really identical to Model 6.

But I’ve presented them all for full and complete disclosure. They do not affect my conclusions. Models 2 and 4 are in the draft of the study. Model 5 represents a race-horse comparison of mental hospitalization and prison rates. Notice that mental hospitalization alone is slightly less significant, but still significant, whereas prison rates alone are not. Again, my concern is not with the relative contribution of the parts, but of the whole. Model 6 includes aggregated institutionalization and prison rates – and here too, aggregated institutionalization remains statistically significant with a coefficient about the same size (slightly larger).

New Table: Harcourt Results on State-level Panel Data (All Permutations)

These additional specifications do not change the bottom line: Aggregated institutionalization is the best predictor of homicide rates. In studying the prison today, we need to aggregate mental hospitalization and prison rates.

Not only that, but there is in all likelihood an endogeneity problem that actually attenuates the relationship that I am finding in my data. The fact is, there is, if anything, simultaneity bias. The relationship between crime and institutionalization is likely to be two-way. Although increased institutionalization is likely to decrease crime rates through incapacitation, increased crime is also likely to increase institutionalization through convictions and sentencing.

As a result, the incapacitation effect of institutionalization on crime is probably diminished and the statistical estimates are likely to understate the effect. The effect of the bias would be to underestimate the effect of aggregated institutionalization on crime. This would only increase the effect of aggregated institutionalization on homicide.

A former student of mine who also studied under Gary Becker, John Pfaff at Fordham, has a terrific new paper on the methodological problems in the prison literature. He extensively reviews the existing "first generation" studies and raises a number of methodological problems — from endogeneity to omitted variable biases and colinearity.

To be sure, like those other studies, the statistical analyses in my study may be missing some control variables. Few if any of the studies that John reviews in his paper go as far back as the 1930s and the fact is, it is practically impossible to find any more reliable data at the state level that go back that far — though I am continuing to search for more.

But the findings are nevertheless remarkable — actually astounding. These regressions cover an extremely lengthy time period (back to 1934) for all fifty state, resulting in a large number of observations (almost 3,300), controlling for economic, criminal justice, youth and demographic variables, and the results remain robust and statistically significant in the most complete models. That is amazing.

One final point. At a conference last week at Yale where I first presented this work, some participants argued that I have to guide the use of this research and address the policy implications.

I resisted the invitation then, but want to emphasize why here. The reason is that the policy implications of this study could lead in any number of directions. Some readers could argue that my findings show there is no reason to have prisons. Instead of prisons, we should have treatment facilities. Others could argue that we should incapacitate more women — remember, there were far more women in mental hospitals, almost 50 percent. Some might argue that we are now at the right level of institutionalization. But this study tells us nothing about the costs and trade-offs to society involved in imprisoning so many people, and whether the harm to the individuals affected by incarceration does not outweigh the harms to the victims of crime.

So I want to emphasize that we all need to proceed with caution. A study finding correlations is not enough to start drawing policy conclusions.

Getting the War on Drugs out of the Way of the War on Terror:

Over the last year, I have repeatedly explained how the Bush Administration's ill-advised efforts to fight the War on Drugs in Afghanistan are undermining the War on Terror there by antagonizing Afghan civilians who depend on the drug trade for a living, and enabling the Taliban to finance itself through the illegal drug trade (see here, here, here, and here). And, lo and behold, the Administration might have finally learned its lesson on this crucial issue. According to this AP report, NATO forces are conducting a major offensive against Taliban forces in Western Afghanistan and are deliberately "turning a blind eye to the poppy crop, which supplies most of the world's opium and heroin, for fear of antagonizing the many farmers who depend on it."

I hasten to add that it is not clear whether this signals a general change in policy, or is just limited to this one operation. It is also not clear whether the policy change originated with the Bush Administration, other NATO allies, commanders on the ground or a combination of all three. I also do not mean to suggest that the policy was changed because of my criticisms. Far more likely that it was changed because key officials finally drew some long-overdue lessons from events on the ground.

Be that as it may, the new policy at least could not have been adopted without the Administration's consent. If they show equal willingness to learn from their other mistakes, we might actually win the war . . .

They Don't Make Them Like That Any More: The New York Times has a fascinating obituary of Robert Rosenthal, a highly decorated WWII bomber pilot and a member of Justice Jackson's legal team at Nuremberg. Rosenthal was 89. Thanks to Peter Lattman for the link.
"We do not inherit the Earth from our ancestors: we borrow it from our children."

This quote, along with some close variants, is sometimes labeled as an Indian proverb, or attributed to Antoine de St. Exupery, or to Ralph Waldo Emerson or to David Bower. Like Chief Seattle's famous environmental speech from 1854 (which was actually written by a screenwriter in 1971),the quote strikes me as a late-20th century idealization of what some revered figure in the past must have thought, supposedly.

Does anyone know the actual origin of this quote? Does it appear in any reliable collection of famous quotes?


Monday, April 30, 2007

[Bernard Harcourt, guest-blogging, April 30, 2007 at 9:15pm] Trackbacks
Mental Hospitalization and Prison Rates in Western Europe:

In response to my first blog entry here, some readers asked how the rates of institutionalization in the United States compare to Western Europe. There is no doubt that the graph of institutionalization over the twentieth century immediately raises the question whether Western or industrialized countries with currently low prison populations use their mental health systems as an alternative form of social control.

One reader, for instance, notes: “Our high rate of penal imprisonment is widely-cited, but your study makes me wonder whether that's a fair picture. How do US rates of total institutionalization compare to the world? I suspect (given how we've dismantled mental health infrastructure), that we're somewhat closer to the rest of the industrialized world.”

I was curious about that too and did a bit of research – and plan on doing a lot more. I discuss it in the conclusion of the study here.

My preliminary findings are interesting and suggest that these suspicions are not entirely off the mark, though not exactly right either.

Among countries in the European Union, the highest rate regarding the number of beds in psychiatric hospitals per 100,000 inhabitants in 2000 was in the Netherlands, which had a rate of 188.5. Other highs were posted in Belgium (161.6), Switzerland (119.9), France (113), and Finland (102.9). The average for the 25 European Union countries in 2000 was 90.1, down from 115.5 in 1993.

These figures are, indeed, higher than the corresponding prison rates for the same countries, which stood in 2006 at 128 per 100,000 persons in the Netherlands, 91 in Belgium, 83 in Switzerland, 85 in France, and 75 in Finland. But they certainly do not come close to the rates of aggregated institutionalization in the United States.

These are preliminary findings, and I obviously need to conduct more research on these comparative figures. There is one country, though, that may offer some competition to the United States – strangely reminiscent of the Cold War era. The Russian Federation has a prison rate of 611 per 100,000, which, when combined with mental health institutionalization, may begin to get close to our institutionalization rates.

On a related issue, there is evidence that in the past some European countries used institutions other than the prison more than they do now to control those deemed deviant—in other words, that the trends identified in the United States may bear some resemblance to trends in Europe.

The Republic of Ireland, for example, had much higher rates of institutionalization in a wide range of facilities, including psychiatric institutions and homes for unmarried mothers, at mid-century—in fact, eight times higher—than at the turn of the twentieth century. Eoin O’Sullivan and Ian O’Donnell have an interesting new paper on that in Punishment & Society. It’s called “Coercive confinement in the Republic of Ireland: The waning of a culture of control,” and it’s in Volume 9(1) at 27-48 (2006).

In Belgium, the number of psychiatric hospital beds per 100,000 inhabitants fell from 275 in 1970 to 162 in 2000; in France, it fell from 242 in 1980 to 111 in 2000; in the UK, from 250 in 1985 to 100 in 1998; and in Switzerland, from 300 in 1970 to 120 in 2000. Again, this requires more research, but there may be a parallel here in terms of the rise and fall of mental health rates.

So overall, important differences, but some parallels. Apart from Russia, though, the numbers should not be much comfort for the United States.

Did Sampson and Goodling Have Total Control of DOJ Political Hiring?: The National Journal has a fascinating story about the hiring and firing of political appointees at DOJ that may help explain the context of the U.S. Attorney "purge" story:
Attorney General Alberto Gonzales signed a highly confidential order in March 2006 delegating to two of his top aides — who have since resigned because of their central roles in the firings of eight U.S. attorneys — extraordinary authority over the hiring and firing of most non-civil-service employees of the Justice Department. A copy of the order and other Justice Department records related to the conception and implementation of the order were provided to National Journal.

In the order, Gonzales delegated to his then-chief of staff, D. Kyle Sampson, and his White House liaison "the authority, with the approval of the Attorney General, to take final action in matters pertaining to the appointment, employment, pay, separation, and general administration" of virtually all non-civil-service employees of the Justice Department, including all of the department's political appointees who do not require Senate confirmation. Monica Goodling became White House liaison in April 2006, the month after Gonzales signed the order. . . .

A senior executive branch official familiar with the delegation of authority said in an interview that — as was the case with the firings of the U.S. attorneys and the selection of their replacements — the two aides intended to work closely with White House political aides and the White House counsel's office in deciding which senior Justice Department officials to dismiss and whom to appoint to their posts. "It was an attempt to make the department more responsive to the political side of the White House and to do it in such a way that people would not know it was going on," the official said.

An original draft of Gonzales's delegation of authority to Sampson and Goodling was so broad that it did not even require the two aides to obtain the final approval of the attorney general before moving to dismiss other department officials, according to records obtained by National Journal. . . .

The department's Office of Legal Counsel feared that such an unconditional delegation of authority was unconstitutional, the documents show. As a result, the original delegation was rewritten so that in its final form the order required "any proposed appointments or removals of personnel" be "presented to the Attorney General... for approval, and each appointment or removal shall be made in the name of the Attorney General."

The senior administration official who had firsthand knowledge of the plan said that Gonzales and other Justice officials had a "clear obligation" to disclose the plan's existence to the House and Senate Judiciary committees — but the official said that, as far as he knew, they had not done so.
  Remarkable. And assuming this story checks out, it certainly explains why Gonzales seemed so clueless about the U.S. Attorney firings. It seems that Gonzales had taken himself completely out of the loop of all DOJ political appointee hiring. He had delegated that role completely to two 30-somethings, Kyle Sampson and Monica Goodling; his only role was a formality, required just so that OLC would find the practice constitutional.

  Thanks to reader Bob English for the link.
Zillow and the First Amendment:

The Arizona Board of Appraisal is threatening legal action against real estate estimate site Here's their letter to zillow:

To Whom It May Concern:

It has come to the attention of the Arizona State Board of Appraisal (the "Board") that you are operating a web site located at

The Uniform Standards of Professional Appraisal Practice define "appraisal" as an opinion of value. On the web site, you provide a "Zestimate," which is an opinion of value. You are not a licensed or certified appraiser in the State of Arizona. Under Arizona law:

A. All real estate appraisals and appraisal reviews performed in this state shall be performed only by individuals licensed or certified in accordance with the requirements of this chapter. No person, other than a state licensed or state certified appraiser, may assume or use that title or any title, designation or abbreviation likely to create the impression of licensure or certification as an appraiser by this state.

A.R.S. § 32-3603.

The letter goes on to demand that Zillow "cease and desist from all appraisal activities in the State of Arizona until such time as they are performed by a licensed or certified appraiser in this state," and threatens legal action.

It seems to me that the statute, as interpreted by the board, is at the very least constitutionally overbroad: It would bar newspaper articles expressing an opinion of some property's value, casual conversations about what some property is likely worth, or criticisms of property tax appraisals based on the speaker's own opinion of a property's value -- all speech that must surely be constitutionally protected.

A tougher question would arise if the statute were limited to commercial advertising -- not just providing information for money (newspapers, books, and other fully protected content does that), but providing information as part of an attempt to sell something else. In that situation, the state could at least bar misleading speech, though I doubt it could categorically bar all opinions of value other than by certified appraisers.

The question would also be tougher if the statute were limited to professional-client speech; such speech may well be less protected than other speech, though query whether that's right as a matter of first principles. But while the boundaries of the professional-client speech exception are vague, it strikes me that one has to have some personalized interaction for that, not just information provided to the whole world on a Web site.

But in any event, the statute is by no means limited to these scenarios; and, if the Board is right that any opinion of value constitutes an appraisal within the statute's terms, then the statute is constitutionally overbroad, even if a narrower statute might be constitutionally permissible in some situations.

White University Newspaper Columnist's Call for Private "Retributive Correction" of Black Criminals:

A white North Carolina columnist at a student university paper — and the son of a city council member — wrote a remarkable column two weeks ago:

So upon whose shoulders should the responsibility of retributive correction fall?

Black people still murder us with impunity. Black people still beat us with impunity. Black people still rape us and get away with it.

The only deterrent to these legally, socially and economically validated supremacist actions is the fear of physical retribution.

White men, stand up. White women, stand up. White children, stand up. We have been at war here with these same black people for 500 years.

The time to fight, whether intellectually, artistically or physically, has always been now.

Predictably and properly, this has generated massive outrage.

Whoops, got one detail slightly wrong: It's actually a black North Carolina columnist at a student university paper (who is indeed the son of a city council member), complaining about various supposed failings of the criminal justice system — specifically the Duke case, where "The ‘facts’ of the case should not matter to us because even if we are unsure of sexual assault, these supremacists have admitted to sexually, racially and politically denigrating these women. Strippers or not, this must be addressed." Here is the excerpt:

So upon whose shoulders should the responsibility of retributive correction fall?

White people still murder us with impunity. White people still beat us with impunity. White people still rape us and get away with it.

The only deterrent to these legally, socially and economically validated supremacist actions is the fear of physical retribution.

Black men, stand up. Black women, stand up. Black children, stand up. We have been at war here with these same white people for 500 years.

The time to fight, whether intellectually, artistically or physically, has always been now.

I should say that there is of course a history of justice system racism against blacks, and doubtless a considerable amount of that remains. There is also a considerable amount of black crime against whites, at what credible sources report is a higher rate than white crime against blacks for murder, robbery, and in most years rape (though not for assault). The question is whether we deal with this by calling for honest law enforcement and reform, or by descending into claims of racial guilt and racial retribution, as the writer seems to suggest. (Had the columnist just been calling for self-defense by the victims against rapists and other criminals, I would entirely support that, whatever the race of the victims or the criminals; but the reference to retributive correction, supported by the tenor of the rest of the piece, strongly suggests something far beyond lawful self-defense.)

I should also note that the speech in the column is clearly constitutionally protected — even to the extent that it is trying to incite violence, it is not trying to and likely to incite imminent violence, which is what's required for it to lose constitutional protection (see Brandenburg v. Ohio, a 1969 Supreme Court case involving advocacy by white racists). I am simply saying that the speech merits condemnation, which I'm glad to say the university chancellor provided.

Finally, the News & Observer reports,

In 2000 and 2001, [the column's author] served a 13-month prison sentence after pleading no contest to charges of robbing two Duke students at gunpoint and then violating the terms of his probation.

UPDATE: Some commenters suggest that the color shift device with which I start the post is pointless, because they are equally outraged by both stories, and would have been outraged by the actual incident even without the earlier one. I'm glad to hear that this is the commenter's view; my suspicion is that the hypothetical (white call for race war) incident would have drawn much more public outrage than the actual (black call for race war) incident, because quite a few people wrongly cut slack to some black racists when they (rightly) would not cut slack to white racists — but if that's not so, and both incidents would have been treated comparably, that's excellent.

FURTHER UPDATE: On the other hand, other commenters argue that the white and black columns would indeed be different, which suggests that the color shift device was useful, in that it prompted the commenters to enunciate their position. Read the comments and decide for yourself which view is the more persuasive.

Science Publishers' Overassertion of Copyright -- Apparently Properly Smacked Down:

The Scientific American blog has the scoop. Here's an excerpt, but go to the post for many links, and for more details:

[O]n Tuesday, over at the ScienceBlog Retrospectacle, neuroscience PhD student Shelley Batts ... posted an analysis of a study appearing in the Journal of the Science of Food and Agriculture, which suggested that the antioxidants properties in fruits were boosted by alcohol. In other words, as this UPI article exclaims: Strawberry daiquiris, a healthier cocktail.

Great news, right? Although Batts -- bravely eschewing the press release -- did a thorough read of the article and found that, sure, co-mingling ethanol with strawberries and blueberries both better preserves fruit and heightens its anti-oxidant effect, but that among the other compounds tested, ethanol was neither the most effective at staving off decay nor the best at boosting anti-oxidants. Surprise, the findings were overstated by the mainstream press (as well as in the press release, courtesy of the Society of Chemical Industry.)

On Wednesday, Batts received a letter from the journal's publisher, John Wiley & Sons, demanding that she pull a single graph and a single chart that were included in the paper, and which she'd posted in her explanation of the work. The letter read:

The above article contains copyrighted material in the form of a table and graphs taken from a recently published paper in the Journal of the Science of Food and Agriculture. If these figures are not removed immediately, lawyers from John Wiley & Sons will contact you with further action.

As Batts then pulled down the graph and table -- she's since reposted both -- she sent out the Bat-signal in the blogosphere and a swarm of citizen journalists angry at the man flocked to her side, brandishing much invective. Long story short, big dogs like Cory Doctorow at Boing Boing weighed in, and, wham! -- within 24 hours, Wiley had tucked its tail between its legs and proved that Lars Ulrich of Metallica, it was not....

Thanks to Steve Erickson for the pointer.

Nice Words About Academic Legal Writing:

Here's an unsolicited e-mail I got last week, from Anne Conaway:

Hello. I'm a Ph.D. student in mass communication, focusing on media law and policy, at the Univ. of Oregon. I just wanted to say THANK YOU for writing chapter one of your book. I'm in my second year of the program, and this chapter is exactly what I've been looking for--NEEDING--but unable to find. It's thoughtful, comprehensive, easy to read, practical, just really, really great!

For more on the book, including reactions from law students and information about how to get it, see here.

Scott v. Harris and Driving in the 1930s: Over at SCOTUSblog, Marty Lederman notes a rather curious footnote in Justice Stevens' dissent in Scott v. Harris. In footnote 1, Justice Stevens speculates about why he has such a different view of the videotape than the Justices in the majority. Stevens speculates that the Justices in the majority may have overestimated the risk of the chase because they learned to drive when most high-speed driving took place on superhighways:
I can only conclude that my colleagues were unduly frightened by two or three images on the tape that looked like bursts of lightning or explosions, but were in fact merely the headlights of vehicles zooming by in the opposite lane. Had they learned to drive when most high-speed driving took place on two-lane roads rather than on super-highways — —when split-second judgments about the risk of passing a slowpoke in the face of oncoming traffic were routine— — they might well have reacted to the videotape more dispassionately.
  This is a strange suggestion, I think. If I understand Stevens correctly, he's suggesting that perhaps Justice Scalia (who is 71) can't accurately judge the dangers of driving at high speeds on a back road because he's too young to have learned how to drive comfortably in that sort of setting.

  Perhaps Stevens' suggestion is just too quirky to respond to, but I think it's worth noting a flaw on its own terms. Justice Stevens was born in 1920, so he probably learned to drive in the late 1930s. At that time, though, cars simply didn't go as fast as the 100 mph of the chase in Scott v. Harris. Most cars on the road in the late 1930s topped out at around 60 mph. For example, an early 1930s Model A Ford could hit around 65 max. The most powerful cars of the era could hit 90mph or so if you gave them miles of straight road — and if you were so lucky as to be driving a new supercharged Auburn Speedster, you could hit 100+ — but such speeds weren't easy to reach on winding and twisting roads. (Plus, cars of the day ordinarily were geared for lower speeds, so driving at top speed put a serious strain on the engine.)

  I personally find this "generational" argument highly dubious in any form. But if you find it persuasive, it seems to me it might just as readily work against Stevens as for him: Perhaps Justice Stevens is misjudging the dangers of the chase because when he thinks of "high speed" driving on a two-lane road, he thinks of a chase at what were considered high speeds back when Justice Stevens learned to drive.
The Human Right of Self-Defense

Paul Gallant, Joanne Eisen, and I have a new article (PDF) forthcoming in the BYU Journal of Public Law. Here's the abstract:

Does a woman have a human right to resist rape or murder? Do people have a human right to resist tyranny? The United Nations Human Rights Council has said “no”—that international law recognizes no human right of self-defense. To the contrary, the Human Rights Council declares that very severe gun control—more restrictive than even the laws of New York City--is a human right.
Surveying international law from its earliest days to the present, this Article demonstrates that self-defense is a widely-recognized human right which no government and no international body have the authority to abrogate.
The issue is especially important today, as many international advocates of international gun prohibition are using the United Nations to deny and then eliminate the right of self-defense. For example, the General Assembly is creating an "Arms Trade Treaty" which could define arms sales to citizens in the United States as a human rights violation, because American law guarantees the right to use lethal force, when no lesser force will suffice, against a non-homicidal violent felony attack.
The Article analyzes in detail the Founders of international law--the great scholars in the fourteenth through eighteenth centuries who created the system of international law. The Article then looks at the major legal systems which have contributed to international law, such as Greek law, Roman law, Spanish law, Jewish law, Islamic law, Canon law, and Anglo-American law. In addition, the article covers the full scope of contemporary international law sources, including treaties, the United Nations, constitutions from Afghanistan to Zimbabwe, and much more.
The Article shows that international law—particularly its restraints on the conduct of warfare—is founded on the personal right of self-defense.
As always, thoughtful comments are welcome. You don't have to read all 119 pages in order to comment, but you do need to read enough to be able to offer a comment about the article itself, rather than abstract thoughts about the gun issue in general.

John Yoo on Religion and Judicial Decisionmaking in Gonzales v. Carhart:

Yoo criticizes Geof Stone's religion-based criticisms of the majority Justices' decisionmaking.

Related Posts (on one page):

  1. John Yoo on Religion and Judicial Decisionmaking in Gonzales v. Carhart:
  2. Rick Garnett on Catholic Justices:
Careful With That Essay:

The Chicago Tribune reports:

A Cary-Grove High School student charged with disorderly conduct for writing a violently descriptive class essay had received an assignment that said: "Write whatever comes to your mind. Do not judge or censor what you are writing." ...

[Allen] Lee's English teacher, Nora Capron, and school officials found the senior's stream-of-consciousness writing so alarming that they turned it over to Cary police, who arrested him Tuesday morning while he was walking to school.

Carroll said the complaint against Lee quotes his essay as saying: "Blood, sex and booze. Drugs, drugs, drugs are fun. Stab, stab, stab, stab, stab, s ... t ... a ... b ..., puke. So I had this dream last night where I went into a building, pulled out two P90s and started shooting everyone, then had sex with the dead bodies. Well, not really, but it would be funny if I did."

According to Carroll, another passage said, "as a teacher, don't be surprised on inspiring the first CG shooting."

Carroll said the two misdemeanor counts of disorderly conduct in the amended complaint filed Thursday refer to both passages....

Lee's essay, written in class Monday, also refers to lyrics from a song by the band Green Day and violent images from a Super Mario Bros. video game, according to Jamie Emling, a close friend of Lee's who is in the same creative-writing class....

It may well be quite reasonable for a high school to look closely at someone who writes this sort of essay, and even suspend him while they're evaluating him. Sometimes off-the-cuff writing, even seemingly fictional writing, may offer a window into what someone is really thinking. Writing such material in high schools — or even colleges — these days is also pretty poor judgment.

But it seems to me that treating the essay as a criminally punishable threat, especially when it's written as a response to a writing assignment that expressly calls on people to write unpolished, unthought-through, and quite possibly fictional prose, is rather an overreaction, even despite the most troubling element of the essay, "as a teacher, don't be surprised on inspiring the first CG shooting." It's also probably an unconstitutional overreaction, as the Wisconsin Supreme Court held in the very similar In re Douglas D. (2001) (though see, for a different result on somewhat different facts, In re George T., 126 Cal.Rptr.2d 364 (Cal. App. 2002)). That someone's speech bears investigation, or even school discipline, doesn't mean that it ought to be criminally punished.

You Think President Bush is Unpopular?:

Prime Minister Olmert of Israel was reported yesterday to have a 3% (not a typo!) approval rating, and that was before the release of an official report today concluding that Olmert was guilty of "serious failure" in his conduct of last Summer's war in Lebanon. What's especially remarkable about Olmert's low approval rating is that Israel's economy is absolutely booming. If Olmert had any decency, he'd resign.

Summary of the Opinions in Scott v. Harris Here's a run-down of the opinions in Scott v. Harris, the high-speed car chase case handed down by the Supreme Court today. (To repeat my interest in the case, I was co-counsel for petitioner Scott, the police officer who was sued.)

  Justice Scalia wrote the majority opinion, joined by all but Justice Stevens. Scalia's first step is to clarify the facts applicable at the summary judgment stage. He sees a major conflict between what the videotape shows and what the lower courts said, and he concludes that the videotape governs. Scalia writes:
When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment. . . . Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.
  Scalia next turns to the Fourth Amendment standard. He agrees with Scott's argument that this case is not governed by Tennessee v. Garner's specific rule, but rather must be governed by a general reasonableness standard. However, whereas Scott's brief tried to distinguish Garner on whether it was clear that deadly force was used, Justice Scalia distinguishes it on the ground that car chases are just very different from shooting fleeing felons:
Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute “deadly force.” Garner was simply an application of the Fourth Amendment’s “reasonableness” test, Graham, supra, at 388, to the use of a particular type of force in a particular situation. . . . Whatever Garner said about the factors that might have justified shooting the suspect in that case, such “preconditions” have scant applicability to this case, which has vastly different facts. “Garner had nothing to do with one car striking another or even with car chases in general . . . . A police car'’s bumping a fleeing car is, in fact, not much like a policeman’s shooting a gun so as to hit a person.” Nor is the threat posed by the flight on foot of an unarmed suspect even remotely comparable to the extreme danger to human life posed by respondent in this case.Although respondent’'s attempt to craft an easy-to-apply legal test in the Fourth Amendment context is admirable, in the end we must still slosh our way through the factbound morass of “reasonableness. ” Whether or not Scott’'s actions constituted application of “deadly force,” all that matters is whether Scott'’s actions were reasonable.
  That brings Justice Scalia to the general reasonableness balancing, and he has "little difficulty" concluding that Scott's conduct was reasonable. "[I]n judging whether Scott’'s actions were reasonable, we must consider the risk of bodily harm that Scott’'s actions posed to respondent in light of the threat to the public that Scott was trying to eliminate." Weighing the risks of acting and not acting, and factoring in the culpabillity of the different people who might be harmed, Scalia concludes that Scott acted reasonably.

  Near the end of the opinion, Scalia offers a rule to give guidance to police officers in future cases:
A police officer'’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.
  Notably, that's a significant broader rule than Scott had asked for in his brief (to repeat my interest in the case, I co-wrote Scott's brief). Whereas Scott had argued that reasonable efforts to minimize harm make the seizure reasonable, the Court's rule is that if a high-speed car chase threatens the lives of innocents, the police can terminate the chase under the Fourth Amendment even if it puts the fleeing motorist at serious risk of death. (Exactly what it means to "threaten the lives of innocent bystanders" may be someowhat unclear, though; perhaps this is simply a recasting of the probable cause requirement of Garner? I'm not sure.)

  Justices Ginsburg and Breyer joined the majority, but each wrote short concurring opinions. Ginsburg added her 2 cents that the issue was case-by-case reasonableness, and that she didn't understand the court to be offering a mechanical, per se rule; Breyer adds that to him the video is the key to the case. (They also both address the Saucier v. Katz question of the order of addressing Fourth Amendment and qualified immunity issues, but they weren't really raised in the case.)

  Justice Stevens wrote a spririted solo dissent that essentially adopts the 11th Circuit's view of the case. Justice Stevens looks at the videotape and concludes that the lower court judges were right: Harris didn't pose that much of a threat to the public, and reasonable jurors could conclude that Scott acted unreasonably in stopping him. Stevens accuses the majority of acting as "jurors" who are engaging in "de novo factfinding" rather than deferring to the views of lower court judges "who are surely more familiar with the hazards of driving on Georgia roads than we are." Stevens concludes:
In my view, the risks inherent in justifying unwarranted police conduct on the basis of unfounded assumptions are unacceptable, particularly when less drastic measures —in this case, the use of stop sticks or a simple warning issued from a loudspeaker— could have avoided such a tragic result. In my judgment, jurors in Georgia should be allowed to evaluate the reasonableness of the decision to ram respondent’s speeding vehicle in a manner that created an obvious risk of death and has in fact made him a quadriplegic at the age of 19.
In footnote 5 of the majority opinion, Scalia responds to Stevens:
JUSTICE STEVENS suggests that our reaction to the videotape is somehow idiosyncratic, and seems to believe we are misrepresenting its contents. We are happy to allow the videotape to speak for itself.
Scalia then posts a link -- er, rather, cites the URL -- of the video, which is here.
Blankenhorn and the purposes of marriage:

In addition to the important procreative and child-raising purpose of marriage that David Blankenhorn and others opposed to gay marriage have emphasized, marriage has other functions arising from our history, tradition, and actual practice that are served by allowing people to marry even if they never have children.

So what does marriage do? What is it for? Marriage does at least six important things. I put these here in block text for ease of reference:

(1) Marriage is a legal contract. Marriage creates formal and legal obligations and rights between spouses. Public recognition of, and protection for, this marriage contract, whether in tax or divorce law, helps married couples succeed in creating a permanent bond.

(2) Marriage is a financial partnership. In marriage, "my money" typically becomes "our money," and this sharing of property creates its own kind of intimacy and mutuality that is difficult to achieve outside a legal marriage. Only lovers who make this legal vow typically acquire the confidence that allows them to share their bank accounts as well as their bed.

(3) Marriage is a sacred promise. Even people who are not part of any organized religion usually see marriage as a sacred union, with profound spiritual implications. "Whether it is the deep metaphors of covenant as in Judaism, Islam and Reformed Protestantism; sacrament as in Roman Catholicism or Eastern Orthodoxy; the yin and yang of Confucianism; the quasi-sacramentalism of Hinduism; or the mysticism often associated with allegedly modern romantic love," Don Browning writes, "humans tend to find values in marriage that call them beyond the mundane and everyday." Religious faith helps to deepen the meaning of marriage and provides a unique fountainhead of inspiration and support when troubles arise.

(4) Marriage is a sexual union. Marriage elevates sexual desire into a permanent sign of love, turning two lovers into "one flesh." Marriage indicates not only a private but a public understanding that two people have withdrawn themselves from the sexual marketplace. This public vow of fidelity also makes the married partners more likely to be faithful. Research shows, for example, that cohabiting men are four times more likely to cheat than husbands, and cohabiting women are eight times more likely to cheat than spouses.

(5) Marriage is a personal bond. Marriage is the ultimate avowal of caring, committed, and collaborative love. Marriage incorporates our desire to know and be known by another human being; it represents our dearest hopes that love is not a temporary condition, that we are not condemned to drift in and out of shifting relationships forever.

(6) Marriage is a family-making bond. Marriage takes two biological strangers and turns them into each other's next-of-kin. As a procreative bond, marriage also includes a commitment to care for any children produced by the married couple. It reinforces fathers' (and fathers' kin's) obligations to acknowledge children as part of the family system.

I suppose some people would dismiss these sentiments as the product of “adult-centered” thinking about marriage, with all the emphasis here on legal contracts, finances, sacred promises, sexual fulfillment, and private personal bonds. I suppose some would say I’ve missed the central importance of marriage as the place for child-rearing. After all, I’ve placed any procreative and child-rearing function at the very end. It doesn’t even make the Top 5. I suppose others would say I’ve placed marriage in a largely private context and given little attention to the existence of marriage as a public institution with public purposes.

David Blankenhorn would not be among those people. He drafted these very claims about marriage as part of a “Statement of Principles” by the marriage movement in 2000, at a time when gay marriage was barely a blip on the radar. In the block text above, I have copied the statement word-for-word, except that in #4 I have substituted “the married partners” for “men and women.” (The statement can be found here.)

Blankenhorn has also explicitly rejected the anachronistic and reductive view that the only public purpose of marriage is to encourage procreation and child-rearing. Marriage is a “multi-dimensional, multi-purpose institution,” he acknowledges. “It is not true therefore to say that the state’s only interest in marriage is marriage’s generative role,” he wrote a couple of years ago. “Instead, marriage’s role as a pro-child social institution is only one, albeit the most important, of these legitimate state interests.” (Emphasis original.)

Blankenhorn has been criticized for a “change of tune” – for emphasizing procreation and biological parenthood in the context of the gay-marriage debate, while he did not emphasize these things before the debate took center stage. He has defended himself on this point by saying that it is only in the context of the gay-marriage debate that some people have insisted there’s no connection between marriage and family-making. I suppose he could also say that the six dimensions of marriage are valuable only because they serve the family-making purpose of marriage by cementing the bond between two biological parents. But that is not how I read the statement and I don’t think it fits the idea of marriage as a “multi-purpose” institution.

Blankenhorn, who has long been concerned about fathers leaving their families, is not necessarily being hypocritical by now emphasizing the role of marriage in bringing biological parents together. Nothing in the statement he endorsed seven years ago is inconsistent with the view that the central and important purpose of marriage is to encourage procreation and child-rearing within marriage. But that’s the point: even if you erroneously thought gay marriage had nothing to do with benefiting children, and everything to do with, for example, a “personal bond” that “represents our dearest hopes that love is not a temporary condition,” it would not be a threat to marriage.

Gay marriage can very clearly meet five of the six dimensions of marriage Blankenhorn himself has endorsed: it can benefit the couple with legal advantages that help “create a permanent bond”; it can facilitate the formation of a financial interdependence that “creates its own kind of intimacy and mutuality”; it helps the couple find values, including religious ones, that go beyond the mundane and everyday and that may be “a fountainhead of inspiration and support when troubles arise”; it can “elevate sexual desire into a permanent sign of love” and be more likely than cohabitation to lead the couple to withdraw themselves from the sexual marketplace; and of course it can be a deep personal bond between two people who share the common human desire for permanence and attachment to one other person.

Gay marriage can also serve the sixth, family-making, function identified by Blankenhorn seven years ago. A gay couple can’t procreate as a couple, it’s true. But they can fit and benefit from all of the dimensions listed above in the same way a sterile straight couple could. Marriage can turn gay couples, unrelated biologically, into next-of-kin, as it can for opposite-sex couples. It can reinforce parents’ (and parents' kin's) “obligations to acknowledge children as part of the family system,” just as it can for second-marriage couples and for sterile opposite-sex couples who adopt or use some method of assisted reproduction.

Even if they never have children, married gay couples will hardly be outside the bounds of marriage as it is actually practiced and as Blankenhorn described it in 2000. By choice or by necessity, lots of marriages never result in children. We do not think less of these marriages, do not think they transform marriage into something wholly adult-centered, and do not worry that they represent a threat to “the future of marriage” by making biological parents think family structure is unimportant. There are already far many more such childless opposite-sex marriages than there will be gay marriages. We recognize that these childless marriages fit the additional dimensions of marriage that Blankenhorn beautifully articulated seven years ago and that, in doing so, they do not undermine the important family-making purpose of marriage.

Many opponents of gay marriage would deny that homosexual couples can meet even the five companionate (non-generative) dimensions of marriage. But based on his public statements about homosexuality, I think Blankenhorn would have to agree that for gay Americans marriage would be “a personal bond,” the “ultimate avowal of caring, committed, and collaborative love”; that gay persons equally share the deep human yearning “to know and be known by another human being”; and that they too possess “our dearest hopes that love is not a temporary condition.”

If that’s good enough reason to let childless straight couples marry, to let sterile couples adopt or reach outside their sexual union to produce a child, why is it not good enough for gay couples? The answer to that question might be found in moral or religious objections to homosexuality, in a desire to avoid placing society’s imprimatur on homosexual relationships, or in ugly and unfounded stereotypes about gay people as hopelessly hyper-promiscuous or unstable. But it cannot easily be found in a world-view that affirms, as Blankenhorn recently did, “the equal dignity of homosexual love.”

Blankenhorn is no flake. He's a serious scholar and thinker. He has thought long and hard about the needs of heterosexuals for marriage. He has challenged the idea that family structure is irrelevant. He has said that our ethical and moral traditions require that we place the needs of children above adult needs where they’re in conflict. He has been right about all of this.

But for all his integrity and sincere opposition to anti-gay bigotry, I don't think he has thought very hard about the needs of gay families. That's why, for example, he and many others opposed to gay marriage could imagine that protecting gay families in law means placing the needs of adults ahead of children — as if we don't already have many childless marriages and as if thousands of gay families don't already include children whose welfare the gay parents place before their own.

Perhaps, just perhaps, Blankenhorn will one day see that marriage offers gay people and their families, at no cost to heterosexuals, the best hope that they too will not be “condemned to drift in and out of shifting relationships forever.” They will have the prospects for permanence and stability enhanced but not guaranteed in their lives and in the lives of any children they may raise. That’s all marriage can do.

Looking for a Job at a Public Interest Law Firm or Advocacy Group?

Some helpful thoughts from Tim Sandefur (Positive Liberty).

Misquotations and "Footnote Filching" in Hamdan:

Opinio Juris guest blogger Marko Milanovic has posted a fascinating and provocative item on alleged misquotation of sources and apparent "footnote filching" in the Supreme Court's majority opinion in Hamdan v. Rumsfeld. According to Milanovic, the Hamdan majority (1) cited an authority for a proposition that is actually contrary to that which the authority supports; (2) selectively cites relevant authority in a misrepresentative manner; and (3) appears to have taken the relevant citation and quotation from an amicus brief submitted by several law professors. Not being an expert on the relevant materials, I am curious to see how others respond to Milanovic's accusations.

The Opinions -- and the Video -- in Scott v. Harris: The opinion in Scott v. Harris is here. Also, the Court has on its own initiative posted a copy of the videotape of the chase at the Supreme Court's website. The video is here.
United Haulers Association Decision:

Today the Supreme Court decided United Haulers Association v. Oneida-Kerkimer Solid Waste Management Authority, yet another dormant commerce clause challenge to local solid waste management regulations. In this case, the Court upheld a local ordinance requiring that all waste within the jurisdiction be sent to a government processing facility. Writing for the Court, Chief Justice Roberts summarized the Court's holding:

“Flow control” ordinances require trash haulers to deliver solid waste to a particular waste processing facility. In C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383 (1994), this Court struck down under the Commerce Clause a flow control ordinance that forced haulers to deliver waste to a particular private processing facility. In this case, we face flow control ordinances quite similar to the one invalidated in Carbone. The only salient difference is that the laws at issue here require haulers to bring waste to facilities owned and operated by a state-created public benefit corporation. We find this difference constitutionally significant. Disposing of trash has been a traditional government activity for years, and laws that favor the government in such areas—but treat every private business, whether in-state or out-of-state, exactly the same— do not discriminate against interstate commerce for purposes of the Commerce Clause.

Of particular interest is the lineup in this case. The Chief Justice's opinion was joined in full by Justices Breyer, Souter, and Ginsburg, with Justice Scalia joining all but one section. Justice Thomas concurred in the result. Justice Alito dissented, joned by Justices Stevens and Kennedy. Comparing this lineup with that from the Carbone decision suggests this decision could signify a shift in the Court's Dormant Commerce Clause jurisprudence toward less-exacting scrutiny of state and local regulations that interfere with interstate commerce.

UPDATE: Ann Althouse has some commentary here.

Happy Tax Freedom Day -- If Today Is the Day:

According to the Tax Foundation, today is "Tax Freedom Day." This means, according to the Tax Foundation, that the average American worked from January 1 until today in order to earn enough just to pay for federal, state and local taxes. For the rest of the year, the average taxpayer is earning money for herself.

For more on "Tax Freedom Day," including links to essays debating the Tax Foundation's methodology, see this TaxProfBlog post.

UPDATE: Julian Sanchez has a long explanation about why calling today "Tax Freedom Day" is misleading (even if one doesn't mischaracterize it the way I apparently did).

Hitchens on Atheism: Christopher Hitchens' has a new book, God Is Not Great: How Religion Poisons Everything. I have not read it, but Slate is offering some lengthy teasers here. Here is just the beginning and conclusion of "Religion Poisons Everything" the first of three excerpts on Slate:
There are four irreducible objections to religious faith: that it wholly misrepresents the origins of man and the cosmos, that because of this original error it manages to combine the maximum of servility with the maximum of solipsism, that it is both the result and the cause of dangerous sexual repression, and that it is ultimately grounded on wish-thinking. . . .[snip]

The argument with faith is the foundation and origin of all arguments, because it is the beginning—but not the end—of all arguments about philosophy, science, history, and human nature. It is also the beginning—but by no means the end—of all disputes about the good life and the just city. Religious faith is, precisely because we are still-evolving creatures, ineradicable. It will never die out, or at least not until we get over our fear of death, and of the dark, and of the unknown, and of each other. For this reason, I would not prohibit it even if I thought I could. Very generous of me, you may say. But will the religious grant me the same indulgence? I ask because there is a real and serious difference between me and my religious friends, and the real and serious friends are sufficiently honest to admit it. I would be quite content to go to their children's bar mitzvahs, to marvel at their Gothic cathedrals, to "respect" their belief that the Koran was dictated, though exclusively in Arabic, to an illiterate merchant, or to interest myself in Wicca and Hindu and Jain consolations. And as it happens, I will continue to do this without insisting on the polite reciprocal condition—which is that they in turn leave me alone. But this, religion is ultimately incapable of doing. As I write these words, and as you read them, people of faith are in their different ways planning your and my destruction, and the destruction of all the hard-won human attainments that I have touched upon. Religion poisons everything.
Other excerpts on Slate are Was Muhammad Epileptic? and Mormonism: A Racket Becomes a Religion.

Hat tip Hit & Run.
Scott v. Harris Handed Down: Over at SCOTUSblog, Lyle Denniston is reporting that the Supreme Court handed down Scott v. Harris (the car chase excessive force case) this morning. As co-counsel for Scott, I'm happy to report that the Supreme Court reversed the 11th Circuit and ruled in Scott's favor:
In an 8-1 decision, the Court ruled that police do not act unconstitutionally when they try to stop a suspect fleeing at high speed by ramming the suspect's car from the rear, forcing it to crash. The car chase that led to the bumping and crash, Justice Antonin Scalia wrote for the Court, posed "a substantial and immediate risk of serious physical injury to others." Thus, the attempt to terminate the chase by forcing the car off the road was "reasonable" under the Fourth Amendment. Justice Stevens dissented alone; he took a step that is somewhat unusual for him, reciting orally from the bench his reasons for disagreeing with his colleagues.
I'll post a link to the opinion when it becomes available.

  UPDATE: The opinion is here.
[Bernard Harcourt, guest-blogging, April 30, 2007 at 9:48am] Trackbacks
On Mental Health Commitments and the Virginia Tech Shooting:

Was the tragic incident at Virginia Tech the result of a failure of Virginia’s mental health system? Slate recently posted Seung-Hui Cho’s commitment papers and they are revealing: the magistrate who heard Cho’s case determined that he was “an imminent danger to himself as a result of mental illness,” but determined that there were “alternatives to involuntary hospitalization.”

After the shooting, Sally Satel at AEI argued that Virginia needs to reexamine its involuntary treatment laws and adopt a lower threshold for commitment, more in line with states like Arkansas and Hawai’i. Others, like Brian Jenkins at RAND, contend that the tragedy probably could not have been prevented and might not have a solution.

It’s impossible to make sense of the debate, though, without understanding the extent to which we’ve dismantled our mental health system in this country. Brick-by-brick, cell-by-cell, we deconstructed what was once a massive mental hospital complex and built in its place a huge prison.

The sheer magnitude of transformation is absolutely remarkable. It is visually shocking — especially given the exponential rise in incarceration in this country in the past thirty years. The following figure gives a snapshot. It shows the aggregate rate of institutionalization in the United States for the period 1934 to 2001, with disaggregated trend lines for mental hospitalization on the one hand and state and federal prisons on the other.

FIGURE: Rates of Institutionalization for Residents in All Mental Institutions and State and Federal Prisons in the United States (per 100,000 adults)

Although our current rates of imprisonment in state and federal prisons are extraordinarily high, the level of total institutionalization (in prisons and asylums) was higher during the 1940s and 50s.

We all know that prison populations skyrocketed nationwide beginning in 1970, rising from under 200,000 persons to more than 1.3 million in 2002. That year, in 2002, our prison rate exceeded for the first time the 600 mark (600 inmates per 100,000 adults) — by far the highest rate and raw number of incarcerated persons in the world.

But what is far less well known is that the United States as a whole institutionalized people at even higher rates in the 1940s and ’50s. If you look at rates of persons in mental hospitals and prisons per 100,000 adults, in the period between 1935 and 1963 the United States consistently institutionalized at rates above 700 per 100,000 adults — with highs of 778 in 1939 and 786 in 1955.

In a recent study, I collected state-level data on mental hospitalization for the twentieth century, and my findings are staggering. For one thing, there was a wide range of institutions. In addition to state and county public mental hospitals, there were public and private institutions for “mental defectives and epileptics” and for “the mentally retarded,” psychiatric wards in general and VA hospitals, “psychopathic hospitals,” city hospitals, and private mental hospitals.

There was also an entire parole system for persons institutionalized in mental hospitals and the parole numbers were non-negligible: on December 31, 1933, for example, 46,071 mental patients were on parole or otherwise absent, representing almost 10 percent of the total institutionalized patient population of 435,571.

One of the most perplexing things I discovered is that there is a strong statistical relationship between aggregated institutionalization (in asylums and prisons) and serious violent crime. Using state-level panel regressions spanning the entire period from 1934 to 2001, including all 50 states, and controlling for economic, demographic, and criminal justice variables, I found a large, robust, and statistically significant relationship between aggregated institutionalization and homicide rates. The findings are not sensitive to weighting by population and hold under a number of permutations, including when I aggregate jail populations as well.

I say “perplexing” because the populations in asylums and prisons were very different: residents in mental hospitals were more white, female, and older than our current prison populations. In 1966, for example, there were 560,548 first-time admissions to mental hospitals, of which 310,810 (55.4%) were male and 249,738 (or 44.6%) were female. In contrast, new admittees to state and federal prison were consistently 95% male throughout the twentieth century. There were also sharp differences in racial and age compositions.

Because of these sharply different populations, it’s not clear yet what to conclude from my study — and it’s far too early to draw public policy implications. But a few things are clear.

The first is that we should not be surprised that there are so many persons with mental illness behind bars today. We deal with perceived deviance differently than we did in the past: instead of getting treatment, persons who are viewed as deviant or dangerous are going to jail rather than mental hospitals.

The second is that we should not be surprised that our mental health systems are in crisis today. The infrastructure is simply not there. This is evident in states across the country where persons with mental illness are being housed in jails rather than treatment facilities.

What is also clear is that Seung-Hui Cho probably would have been institutionalized in the 1940s or 50s and, as a result, the Virginia Tech tragedy may not have happened. According to the New York Times, the director of the campus counseling services at Virginia Tech said of Cho: “The mental health professionals were there to assess his safety, not particularly the safety of others.” It’s unlikely we would have taken that attitude fifty years ago.

But the problem is, we would also be institutionalizing another huge swath of humanity — and it’s simply not clear how many of those other lives we would be irreparably harming in the process.

The classic texts of social theory from the 1960s — Erving Goffman on Asylums, Gerald Grob on The State and the Mentally Ill, David Rothman on The Discovery of the Asylum, Michel Foucault on Madness and Civilization, Thomas Szasz on The Myth of Mental Illness, Michael Ignatieff on A Just Measure of Pain, and many others — describe in chilling detail how closely mental institutions began to approximate the prison and the “total institution.” These critical writings should remind us of the other price that society pays when we commit and institutionalize each other.

Bernard Harcourt Guest-Blogging:

I'm delighted to say that Bernard Harcourt — Julius Kreeger Professor of Law and Criminology at the University of Chicago and author of the just-released Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age and other books on broken-windows policing and youth gun carrying — will be guest-blogging here this week.

Prof. Harcourt's posts will chiefly focus on a new paper of his that looks at the massive shift in institutionalization from mental hospitals to prisons during the 20th century, a topic that's particularly timely in light of the Virginia Tech incident. The paper presents new findings from state-level panel regressions and builds on an earlier article in the Texas Law Review that looked at national level trends. I read the paper, found it tremendously interesting, and invited Prof. Harcourt to join us for the week.

Prof. Harcourt also edits a new journal, on-line and in-print called The Carceral Notebooks. A new volume of The Carceral Notebooks is just out and available on-line, and carries essays by Cass Sunstein, Martha Nussbaum, Geoffrey Stone, Jim Leitzel, and others on the legal enforcement of morality.

DOJ Report on Public Experience with the Police: The Department of Justice Bureau of Justice Statistics has just published a fascinating report on police-citizen interactions based on interviews with about 70,000 people in the year 2005. The report gives an extremely interesting look at how people view the police, as well as their experience with the police. None of the stats in the report were checked with actual police records, so some of the numbers may be a bit suspect. But it's still really interesting stuff. The report is only 14 pages long, so it's easy to read in its entirety. But here are the key findings:
An estimated 19% of U.S. residents age 16 or older had a face-to-face contact with a police officer in 2005, a decrease from 21% of residents who had contact with police in 2002. Contact between police and the public was more common among males, whites, and younger residents. Overall, about 9 out of 10 persons who had contact with police in 2005 felt the police acted properly. Of the 43.5 million persons who had face-to-face contact with police in 2005, 29% had more than one contact. The most common reason for contact with police in both 2002 and 2005 involved a driver in a traffic stop. Other frequent reasons for contact included a crime to police or being involved in a traffic accident.

Nearly 18 million persons — or 41% of all contacts in 2005 — indicated that their most recent contact with police was as a driver in a traffic stop. This represented about 8.8% of drivers in the United States, a percentage unchanged from 2002. Stopped drivers reported speeding as the most common reason for being pulled over in 2005. Approximately 86% of stopped drivers felt they were pulled over for a legitimate reason.

In both 2002 and 2005, white, black, and Hispanic drivers were stopped by police at similar rates, while blacks and Hispanics were more likely than whites to be searched by police. About 5% of all stopped drivers were searched by police during a traffic stop. Police found evidence of criminal wrong-doing (such as drugs, illegal weapons, or other evidence of a possible crime) in 11.6% of searches in 2005. Police issued tickets to more than half of all stopped drivers and arrested about 2.4% of drivers. Male drivers were 3 times more likely than female drivers to be arrested, and black drivers were twice as likely as white drivers to be arrested. Drivers stopped for speeding (71%) or for a seatbelt violation (74%) were more likely to be ticketed than drivers stopped for other reasons, such as an illegal turn or lane change (58%), a record check (34%), or a vehicle defect (32%).

Of the 43.5 million persons who had contact with police in 2005, an estimated 1.6% had force used or threatened against them during their most recent contact, a rate relatively unchanged from 2002 (1.5%). In both 2002 and 2005, blacks and Hispanics experienced police use of force at higher rates than whites. Of persons who had force used against them in 2005, an estimated 83% felt the force was excessive.

Sunday, April 29, 2007

Koufax Comeback:

Sandy Koufax, age 71, has been drafted by a major league baseball team. Okay, the league is in Israel (not exactly a baseball hotbed) and it seems more like a publicity stunt than anything else. But if Koufax, who famously declined to pitch in a World Series game that fell on Yom Kippur, wants to make a comeback in Israel, at least he won't have to worry about the Jewish holidays.

"Is the War in Iraq Lost?": The Washington Post posed the question to "some key figures in the Iraq debate," and today's paper reports their answers.
Hmmm. This does not sound good: Yesterday, I received the following message from
Dear Customer,

We've noticed that customers who have expressed interest in The Rights Retained by the People: The History and Meaning of the Ninth Amendment by Randy E. Barnett have also ordered The U.S. Constitution For Dummies by Michael Arnheim. For this reason, you might like to know that Michael Arnheim's U.S. Constitution For Dummies will be released on May 1, 2007. You can pre-order your copy at a savings of $6.40 by following the link [above].
Well, at least it wasn't Restoring the Lost Constitution.
Private Groups "Monopolizing" Public Lands:

Public lands are supposed to be for the public. Yet an Interior Department audit found that many so-called public lands are effectively monopolized by private clubs, according to the Washington Post.

The National Park Service has for decades allowed members-only beach, yacht and sports clubs -- including New York City's largest beach resort -- to "monopolize" public lands that by law should be open to all, an Interior Department audit shows.

The audit also found that the Park Service did not consider "environmental consequences" for 18 of 20 sites included in the survey.

The clubs "have enjoyed exclusive rights to public lands through restrictive and costly memberships that deny the general public the same benefits," the report says. "In some instances, the National Park Service has authorized this exclusivity for 30 or more years."

This finding should not be particularly surprising. "Public" lands are political lands. Management and access rules are ultimately driven by political considerations, and this gives concentrated interest groups and well-heeled organizations a leg up. This means resource using groups have disproportionate influence on management of federal lands used for resource extraction, and environmentalist organizations and private clubs have a disproportionate influence on management of the National Parks.

More broadly, the National Park system subsidizes recreation for well-off Americans. Most visitors to national parks are upper- or middle-class, and their recreation is subsidized by general tax revenues. (I plead guilty as a subsidy-sucker here, as I am a frequent visitor to National Parks.) Those with more limited economic means are more likely to visit state and local parks than those run by the NPS -- particularly the jewels of the system, such as Yellowstone, to which most Americans must travel a substantial distance to visit. These are "public" lands that are not enjoyed by much of the public.

Related Posts (on one page):

  1. National Park Fees to Increase:
  2. Private Groups "Monopolizing" Public Lands:
NYT Examines Carbon Offset "Gimmick":

Today's New York Times looks into the debate over carbon offsets, and questions whether claims of "carbon-neutrality" are just a "gimmick."

is the carbon-neutral movement just a gimmick?

On this, environmentalists aren’t neutral, and they don’t agree. Some believe it helps build support, but others argue that these purchases don’t accomplish anything meaningful — other than giving someone a slightly better feeling (or greener reputation) after buying a 6,000-square-foot house or passing the million-mile mark in a frequent-flier program. In fact, to many environmentalists, the carbon-neutral campaign is a sign of the times — easy on the sacrifice and big on the consumerism. . . .

“The worst of the carbon-offset programs resemble the Catholic Church’s sale of indulgences back before the Reformation,” said Denis Hayes, the president of the Bullitt Foundation, an environmental grant-making group. “Instead of reducing their carbon footprints, people take private jets and stretch limos, and then think they can buy an indulgence to forgive their sins.”

“This whole game is badly in need of a modern Martin Luther,” Mr. Hayes added.

Some environmental campaigners defend this marketplace as a legitimate, if imperfect, way to support an environmental ethic and political movement, even if the numbers don’t all add up.

Sunday Song Lyric: Fifteen years ago today, a jury in Simi Valley, California, acquitted three Los Angeles police officers charged with using excessive force against motorist Rodney King. (The jury failed to reach a verdict on the fourth officer charged in the incident.) As news of the officers' acquittal broke, riots broke out in Los Angeles and elsewhere.

References to King and the riots became a staple in popular culture. Sublime frontman Bradley Nowell penned a song about the riots, "April 29, 1992 (Miami)," that was included on Sublime's self-titled album, the recording that catapulted the band to stardom. The band's catchy punk/ska/reggae blend, reportedly powerful live performances, authenticity, and social consciousness created a devoted following that continued long after the Sublime disbanded. Nowell would never see the album's commercial success, however, as he died of a heroin overdose shortly before the album was released, and the band broke up soon thereafter.

April 29 may not be the best song on the album, but it's timely, was recommended by a reader, and a Sublime lyric has been overdue. So here's a taste (the full lyrics, which include police radio chatter, are here).

April 26th, 1992
There was a riot on the streets
Tell me where were you?
You were sittin' home watchin' your TV
While I was paticipatin' in some anarchy.

First spot we hit it was my liqour store.
I finally got all that alcohol I can't afford.
With red lights flashin' time to retire,
And then we turned that liquor store into a structure fire. . . .

They said it was for the black man,
They said it was for the Mexican,
And not for the white man.
But if you look at the streets
It wasn't about Rodney King,
It's 'bout this f**ked up situation
And these f**ked up police.
It's about coming up and staying on top
And screamin' 187 on a mother f**kin' cop. . .
Although the song is called "April 29, 1992," Nowell sang "April 26th" when the song was recorded and, according to this account, the band kept it because they liked the track.