Friday, May 11, 2007

FIRE's Greg Lukianoff on the Tufts Punishment of Blasphemy:

An excerpt from his post:

So does [the item in the student newspaper] paint Islam in a nice light? No. Is it one-sided? Yes, but that was kind of the point. The students were responding to what they thought was a one-sided and overly rosy depiction of Islam during Islamic Awareness week. But is it unprotected harassment!? One certainly hopes not, or else “harassment” just became a truly lethal threat to free speech -- an “exception” that completely swallows the rule....

If what the complaining students wanted to say was that the [newspaper's] facts were wrong, then -- while this still would not be harassment -- that could have been an interesting debate. But instead, in sadly predictable fashion, the students plowed ahead with a harassment claim that, based on the hearing panel’s decision, appeared not even to raise the issue of whether or not the statements in the ad were true, but turned only on how they made people feel.

To be fair, I take it the students' claim was that the collection of facts was one-sided and unfair -- but surely giving universities the power to punish students for newspaper articles that are seen by some as one-sided and unfair is a power that's lethal to freedom of discussion.

Lukianoff goes on:

I doubt that the Tufts disciplinary board thought through the full ramifications of their actions. If a Muslim student had published these same statements in an article calling for reform in Islam, would that be harassment? If Tufts wished to be at all consistent (a dubious bet here), it would be.

Since those students and faculty obviously did not think about the ramifications of this decision, we put it to you, President Bacow: do you think the publication of factual assertions should be a punishable offense if they hurt the wrong people’s feelings, regardless of whether or not they are true?

Pomona City Attorney Threatening Lawsuit for Libel of City?

Someone pointed me to this letter in which the Pomona City Attorney seems to be threatening the Foothill Cities weblog with a libel lawsuit:

[T]his letter will serve as notice and demand to you ... to cease and desist any further publication of false information concerning the City of Pomona, the City Council of the City of Pomona, the City Manager and/or any of the City's employees and that you delete and retract all such communications that have appeared on your web-site concerning this matter during the month of April 2007 to the present.

(LA Observed has more on this.)

I can't speak to whether any of the blog posts did indeed libel City employees or officials. But I can say that the City Attorney has no legal basis for demanding (as opposed to requesting, by appeals to a sense of fairness or journalistic standards) that the blog stop publishing false information about the City -- under New York Times v. Sullivan (1964), there can be no lawsuit for libeling a government entity.

The NYT v. Sullivan Court stated that "no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence," and it endorsed this tradition as being constitutionally mandated. So while I certainly think it's wrong to make knowingly or recklessly false statements about government entities, and while it may be libelous to make such statements about particular city employees or officials, it cannot be libelous even to say outright lies about the City of Pomona more broadly.

Kurdish Leader Urges Decentralized, Free Market Policy on Iraqi Oil:

Qubad Talabani - the main Kurdish Regional Government representative in th US and the son of Iraqi President Jalal Talabani - recently called for decentralized control of Iraq's oil resources, and for a more free market policy on oil:

We're trying to modernize Iraq, build a new Iraq, built on new foundations, new policies. The symbol of this new Iraq will be how it manages its oil infrastructure," Talabani said. "And if people want to revert back to Saddam-era policies of a state-controlled oil sector with no accountability, with no accountability to the Parliament or the people of the country, with no oversight except from by one or two, then I'm sorry, that is not the Iraq that the Kurds bought into. That is not the Iraq that the Kurds would want to be part of."

"If a centralized oil regime is imposed on us, we will not participate in the state of Iraq," Talabani said. "And we have to make it absolutely clear to our friends in Washington, to our brothers in Baghdad, this is a make-or-break deal for Iraq."

He said Iraq needs to embrace the free market and break free from the nationalized mindset. Numerous oil and Iraqi experts as well as key Iraq oil union leaders have told UPI that Iraqis see nationalized oil with pride.

Free market reforms of the state run oil industry can help increase production and attract foreign investment. They can also prevent the central government from using its control of oil to dominate the country and stifle political opposition - as has happened in many other oil-rich nations, such as Saudi Arabia and Venezuela. As Talabani explains, it is essential to avoid an oil law under which the central government has complete control over the industry and its revenues:

We want to create an automatic payment mechanism where it doesn't rely on the goodwill of the finance minister or the oil minister for the regions to get their fair share," he said.

"Trust is lacking in Iraq, and unfortunately it's been Iraq's miserable history that has created this system, this society that mistrusts each other, which is why something as critical as oil can be a trust-building measure," Talabani said. "By putting in place mechanisms and institutions that can ensure that I will not get robbed again, that my resources will not be used against me again, will eventually over time build my trust."

Obviously, the new Iraqi oil law will also have to ensure that regions without oil wells of their own get some share of the revenue, particularly the majority-Sunni regions in central Iraq, where most of the insurgency is based. I discuss various ways to achieve this goal in several previous posts on federalism and oil in Iraq. See here, here, here, and here.

"Intentionally Putting a Negative Spin on Islam" -- Flabbergasting!

Apropos the Tufts University's prohibition on blasphemy, the Tufts Daily has this quote:

The [Muslim Student Association] joined the case after the publication of an April 11 item in the Source saying that Islam is a violent religion. "We have to take it seriously," said junior Shirwac Mohamed, the MSA co-chair who will represent the organization at today's hearing. He said that many Muslim students, even those not normally active in MSA, have complained about the item.

"I looked at the article and was flabbergasted," he said. "It's intentionally putting a negative spin on Islam."

My first reaction was — welcome to America: We're allowed to intentionally put a negative spin on religion here, just as we're allowed to criticize any other ideology. There should be nothing flabbergasting about open debate in America, debate which doesn't assume that any religious belief is sacrosanct.

But I guess the joke is on me, because welcome to Tufts: A university panel (consisting mostly of faculty members) has concluded that in fact Tufts does not allow "attitudes or opinions that are expressed verbally or in writing" that create a "hostile environment" through "unreasonable attacks based on [students'] religion." Or at least that's so when, in the commitee members' views, the criticisms of religion somehow manage to avoid "promoting political or social discourse"; somehow "putting a negative spin of Islam," which I would have thought is a form of political or social discourse, doesn't actually promote such discourse.

So, my apologies, Mr. Mohamed: You're right to be flabbergasted when people "intentionally put[] a negative spin of Islam," when you're in Tufts' No Unreasonable Anti-Religious Attitudes Or Opinions Zone.

The New Anti-Blasphemy Rules, Again:

Last month, a Tufts student newspaper (The Primary Source) published the following ad (thanks to the Foundation for Individual Rights in Education for the pointer):



In the spirit of Islamic Awareness week, the Source presents an itinerary to supplement the educational experience.

"I will cast terror into the hearts of those who disbelieve. Therefore strike off their heads and strike off every fingertip of them." — The Koran, Sura 8:12

MONDAYAuthor Salam Rushdie needed to go into hiding after Iran's Ayatollah Khomeini declared a fatwa calling for his death for writing The Satanic Verses, which was declared "blasphemous against Islam."
Slavery was an integral part of Islamic culture. Since the 7th century, 14 million African slaves were sold to Muslims compared to 10 or 11 million sold to the entire Western Hemisphere. As recently as 1878, 25,000 slaves were sold annually in Mecca and Medina. (National Review 2002).

TUESDAYThe seven nations in the world that punish homosexuality with death all have fundamentalist Muslim governments.
In Saudi Arabia, women make up 5% of the workforce, the smallest percentage of any nation worldwide. They are not allowed to operate a motor vehicle or go outside without proper covering of their body. (Country Reports on Human Rights pracitces 2001)

WEDNESDAYMost historians agree that Muhammed's second wife Aisha was 9 years old when their marriage was consummated.
"Not equal are those believers who sit and receive no hurt, and those who strive and fight in the cause of Allah with their goods and their persons. Allah hath granted a grade higher to those who strive and fight with their goods and persons than to those who sit. Unto all Hath Allah promised good: But those who strive and fight Hath He distinguished above those who sit by a special reward." — The Koran, Sura 4:95

THURSDAYThe Islamist guerillas in Iraq are not only killing American soldiers fighting for freedom. They are also responsible for the vast majority of civi[l]ian casualties.
Ibn Al-Ghazzali, the famous Islamic theologian, said, "The most satisfying and final word on the matter is that marriage is a form of slavery. The woman is man's slave and her duty therefore is absolute obedience to the husband in all that he asks of her person."

FRIDAYMohamed Hadfi, 31, tore out his 23-year-old wife Samira Bari's eyes in their apartment in the southern French city of Nimes in July 2003 following a heated argument about her refusal to have sex with him. (Herald Sun)

If you are a peaceful Muslim who can explain or justify this astonishingly intolerant
and inhuman behavior, we'd really like to hear from you! Please send all letters to
The preceding December, the student newspaper also published a satirical Christmas carol — in its Christmas carol parody issue — cricitizing affirmative action by criticizing Tufts' black admitted students; in my view, that carol was offensive because unduly harsh and hyperbolic, but it was clearly an attempt to condemn affirmative action in admissions.

Yet according to the a decision by the Tufts University Committee on Student Life both these items violate Tufts policies and are thus forbidden at Tufts. Tufts policies prohibit, among other things, "[h]arassment or discrimination against individuals on the basis of race, religion, gender identity/expression, ethnic or national origin, gender, sexual orientation, disability, age, or genetics", including (emphasis added) "attitudes or opinions that are expressed verbally or in writing." Here's what the University Committee — a majority of which apparently consists of faculty members — had to say about the anti-Islam item (in the interests of saving space, I omit the similar findings about the anti-affirmative-action carol) (emphasis added):

[W]e find that the MSA proved, by a preponderance of the evidence, that The Primary Source harassed Muslim students at Tufts, and created a hostile environment for them by publishing “Islam-Arabic Translation: Submission.” The Committee found that the MSA established that the commentary at issue targeted members of the Tufts Muslim community for harassment and embarrassment, and that Muslim students felt psychologically intimidated by the piece....

[A]lthough Tufts students should feel free to engage in speech that others might find offensive and even hurtful, Tufts University’s non-discrimination policy embodies important community standards of behavior that Tufts, as a private institution, has an obligation to uphold. Our campus should be a place where students feel safe, respected, and valued. Freedom of speech should not be an unfettered license to violate the rights of other members of the community, without recourse.

We find that the above-mentioned carol and commentary, rather than promoting political or social discourse, as claimed by the members of The Primary Source, instead were designed to harass and intimidate members of the Tufts community because of their race (black) and religion (Islam)....

[T]he Committee has attempted to strike a balance between protecting the rights of students to exist on campus without being subjected to unreasonable attacks based on their race or religion and protecting the rights of students to publish controversial writings....

From now on, all material published in The Primary Source (whether characterized as satirical or otherwise) must be attributed to named author(s) or contributor(s).

We ask that student governance consider the behavior of student groups in future decisions concerning recognition and funding....

The Committee believes that it is important for Tufts University to foster an intellectual climate in which students feel free to express their thoughts, however controversial. Nevertheless, based on the evidence and arguments presented at the hearing on April 30, 2007, the Committee on Student Life holds that The Primary Source violated Tufts University’s non-discrimination policy in publishing the carol “O Come All Ye Black Folk” and the commentary “Islam-Arabic Translation: Submission.”

Lovely: Harsh criticism of Islam doesn't — in the Committee's view — "promot[e] political or social discourse." Rather, it is an "unreasonable attack[]" (and it's up to the Committee to decide which attacks on religions are reasonable and which aren't).

What's more, this "unreasonable" speech violates the "rights of other members of the community." What are those rights? Apparently the right "to exist on campus without being subjected to unreasonable attacks based on their race or religion" (including attacks on the religion generally, even those that don't give any student names in particular). And apparently the right to be free of "attitudes or opinions that are expressed verbally or in writing" that "create[] a hostile environment" for students "on the basis of race, religion, gender identity/expression, ethnic or national origin, gender, sexual orientation, disability, age, or genetics."

In this case, the punishment for the speech is a ban on one newspaper's ability to publish anonymous speech — while other newspapers that express favored views remain free to shield their contributors from social ostracism and other retaliation through anonymity. It requests "that student governance consider the behavior of student groups," which is to say the viewpoints those groups express, "in future decisions concerning recognition and funding."

But more importantly, the ruling finds that the speech violated general campus rules that make such speech "unacceptable at Tufts" and require "prompt and decisive action." Though it looks like no individual students are being disciplined in this instance, if the Tufts Administration accepts the ruling, it will send a clear message that students who express "attitudes or opinions" like this will be seen as violating campus anti-harassment rules, and will be subjected to "prompt and decisive action," which campus rules say may involve "the disciplinary process," against individual students as well as against organizations. After this decision, what should Tufts students feel free to say in criticizing religions, or in criticizing affirmative action?

Welcome to the new freedom of speech at the new university. No, the Committee's actions don't violate the First Amendment, since Tufts is a private university. But they violate basic principles of academic freedom and public debate on university campuses, especially when the top university administrators claim to "fully recognize freedom of speech on campus." Appalling.

Livingston, Circuit Judge: Congratulations to Debra Livingston, a professor at Columbia Law School, who was confirmed by the Senate on Wednesday to a Second Circuit judgeship by a vote of 91-0. Professor Livingston will now sit on the same court where she was a law clerk: she clerked for the legendary Judge J. Edward Lumbard on the Second Circuit in 1984-85. Even better, she can now overturn the decisions of her former colleague and fellow crimprof, Gerard Lynch, now a district court judge on the Southern District of New York. (Hey, I'm not saying it's going to happen often; only that it's possible.) Seriously, this is terrific news. I'm sure Debra Livingston will be an excellent judge.

Thursday, May 10, 2007

Minnesota parenting decision:

In a unanimous opinion joined by the court's Republican-appointed justices, the Minnesota Supreme Court today upheld a trial court order that a woman should be allowed visitation with the two children she helped raise with her lesbian partner of 22 years.

The trial court's order was based on a Minnesota statute allowing third parties to petition for "reasonable" visitation if the person has lived with the children at least two years. Unlike "grandparent visitation" statutes in other states, the Minnesota law places no restriction on the legal or biological relationship of the third party to the children.

The facts of the case illustrate the realities of family life for hundreds of thousands of gay couples and their children in the country. From the court's description of the background facts:

[Marilyn] Johnson and [Nancy] SooHoo, who lived together and jointly owned a house in Minneapolis, ended a 22-year relationship in the fall of 2003. During the course of that relationship, Johnson adopted two children from China. When Johnson adopted the first child, both she and SooHoo traveled to China. When Johnson adopted the second child, SooHoo remained in Minneapolis and cared for the first child while Johnson went to China. SooHoo did not adopt either of the children, but the record indicates that Johnson and SooHoo co-parented the children, recognized themselves as a family unit with two mothers, and represented themselves to others as such. For example, SooHoo took maternity leave to care for both children upon their arrival in the United States. SooHoo also participated in the selection of child-care providers and schools for the children and shared in the daily parenting responsibilities, including dropping off and picking up the children from day care, helping with school projects and homework, preparing meals for the family, taking the children to doctors appointments (including authorizing the children’s immunizations), coordinating extracurricular activities and play dates, providing the sole care while Johnson was away on business, and taking the children to California to visit SooHoo’s extended family, all without apparent objection by Johnson. The record further reflects that the children referred to SooHoo as “mommy,” and referred to SooHoo’s parents as their grandparents. In the information provided to the children’s schools, Johnson listed SooHoo as mother number two and listed the last name of one of the children as Johnson-SooHoo. SooHoo attended the children’s parent‑teacher conferences with Johnson, during which both women signed off on the teacher’s goal setting report as “Parent/Guardian.”

There is nothing unusual about any of this. It is now quite common for gay couples to share all of the responsibilities of raising children and for the children themselves to know no parents except them.

The case also illustrates the unusual legal difficulties these families face. When the women broke up, Johnson allowed SooHoo to see her children for a total of only 48 hours over a period of almost six months. The women could not marry in Minnesota, which would have allowed a joint adoption of the children and thus presumed visitation for both of them. That would have spared the kids the near total separation from SooHoo they endured for six months.

For some reason not discussed in the opinion, SooHoo did not get a second-parent adoption, which allows a person to adopt his/her unmarried partner's biological or adopted child without terminating the partner's parental rights. Second-parent adoption is allowed in some states by statute and in some others by judicial decision. In gay couple households, it gives children the security of having two legal parents in case they separate, or in case the legal parent dies or becomes incapacitated. In Minnesota, some judges in Hennepin County (which includes Minneapolis) and other counties allow such adoptions; others around the state apparently don't allow it. It may be that the women in this case got the children before these adoptions were being permitted, or that they did not have the additional money for further adoption proceedings, or that they did not know it was available.

Barred by Johnson from seeing her children, SooHoo sued to get full custody of the children and, in the alternative, to set a visitation schedule under state law. The trial court denied her custody motion but granted her visitation comparable to what a non-custodial legal parent would get (weekly visits, alternate holidays, long summer visits).

One issue of importance here was presented to the Minnesota Supreme Court. Johnson claimed that the state third-party visitation statute was an unconstitutional infringement on her substantive due process right as a parent to control the upbringing of her children. (She also claimed that the trial court abused its discretion in awarding so much visitation to SooHoo. Based on the facts, the state supreme court held that the visitation order was not clearly erroneous.)

The court applied what it called strict scrutiny and upheld the constitutionality of the statute. First, it said that the state had a compelling interest "in promoting relationships among those in recognized family units (for example, the relationship between a child and someone in loco parentis to that child) in order to protect the general welfare of children." (citing a Minnesota case extending parental immunity to a stepfather)

No doubt some will highlight the idea that the state supreme court is implicitly saying that a gay couple and their children can be a "recognized family unit" under state law and that this is a precursor to judicially imposed same-sex marriage. That would be an exaggeration. The court was not mandating the recognition of rights of co-parents as a matter of state or federal constitutional law. It was applying a state statute designed to protect children who might otherwise be cut off from a long-standing parent, of either sex and of any legal or biological relation to the child. Nothing in the decision (or the state statute) turns on whether the "third party" is in a sexual or romantic relationship with the child's parent. To have held that a same-sex partner could not qualify as a third party under the statute, no matter how intensely and fully involved in the child's life and no matter how long that involvement lasted, would itself have been an act of judicial usurpation and of unbearable cruelty to the children.

Second, the court emphasized the narrowness of the state law: it "limits the class of individuals who may be granted third-party visitation to those who have a longstanding parent-child relationship with the child and prohibits the district court from granting visitation if the visitation is not in the child’s best interest or interferes with the custodial parent’s relationship . . . ." The court itself imposed a requirement — not found in the statute — that the third party "has the burden of proof by clear and convincing evidence."

There was nothing unusual or activist in this result. The court's reading and application of the state statute are fair, its constitutional analysis is restrained, its deference to the factual conclusions of the trial court is appropriate, and the policy result is reasonable.

Cases like this are examples of law catching up to the facts of life for millions of people in this country. If we're not going to bar gay individuals and couples from raising their own children — something I've not heard any serious and prominent opponent of gay marriage propose — the law is going to have to accommodate the needs and interests of these families in some way.

When a gay couple has been raising children together, we can't just take those children away from one of them and pretend that they've all been strangers who happened to live in the same house. I'm not saying that gay marriage is the only answer, though it's the one I'd prefer. It seems to me to require the least adjustment in ordinary legal processes and presumptions for adjudicating parental rights and duties.

Alternatively, the law can take account of real-world parental relationships by allowing second-parent adoptions. It can also recognize de facto parents by permitting visitation and by imposing child support and other obligations.

Indeed, the lack of marriage for gay couples is one of the factors pressing the law in the direction of recognizing these alternative ways of protecting parents' and children's interests. The alternatives have their own complications. But even aside from its correctness under Minnesota law, the court's decision is surely preferable as a matter of family policy and common sense to having the court close its eyes to the lived experience of these families.

Cop Takes Marijuana From Suspect, Cooks Brownies, Eats Them With His Wife, Flips Out, Calls 911: The Agitator has the scoop, and the tape of the 911 call is here via the Detroit Free Press. No charges have been filed.
Gonzales, Take 2: has this summary of AG Alberto Gonzales's testimony today before the House Judiciary committee. Meanwhile, Murray Waas has an interesting story on some withheld e-mails relating to the case.
[Peter Schuck, guest-blogging, May 10, 2007 at 4:14pm] Trackbacks
Avoiding Bad Bets, Removing Bad Apples

In our book, we make the point (first developed by Tom Schelling) that policymakers and voters tend to respond more to (1) identifiable victims (e.g., the girl, Jessica McClure, who fell in the well, or workers trapped in a mine) even though helping them comes at a very high cost per victim, than to (2) statistical victims (Schelling's term), whose very costly plights could be prevented at a relatively low expenditure per victim (e.g., pre-natal care for low-income women).

This tendency may be rational if the number of situations like (1) is quite low; society can feel good about being generous and affirming the attractive but plainly false idea that life is infinitely precious and we will pay any price to preserve it. But in a very large range of cases, this bias against prevention is irrational and very, very costly to society.

In today's NY Times, p. A33, Nicholas Kristof, in a column entitled "Save the Darfur Puppy," takes this point a step farther -- a step too far, in my view. "The human conscience," he says, "just isn't pricked by mass suffering, while an individual child (or puppy) in distress causes our hearts to flutter."

Tell that to the Americans (and others) who contributed astonishing sums of money to a multitude of utterly anonymous, unidentifiable, and for all intents and purposes statistical victims of the Asian tsunmai, Hurricane Katrina, and countless other instances of mass suffering. It is true that some disasters are more telegenic than others, and that the media today plays a large role in triggering this philanthropic response in some cases more than others.

None of this is to deny the importance of the identifiable vs. statistical victims distinction. Indeed, I discuss this in a new unpublished paper on the different ways in which catastrophe is understood by science, by law, and by politics. But Kristof's well-intentioned column fails to mention some important factors that affect the response to human disasters like Darfur.

One factor is the difference between individual philanthropic responses and geopolitical responses, which are -- and must be -- based on different considerations. Another is the sense that once we get into certain rescue situations, we'll never be able to get out, or that our intervention will be ineffective or make matters worse. (Can you think of a current example??) Yet another is the free rider problem -- the hope that someone else will bear the costs, with the result that no one intervenes.

My point is NOT that we shouldn't do more to stem the suffering in Darfur. In fact, Kristof's earlier columns have made a strong case that we could and should do more, including a no-fly zone, stronger sanctions against Sudanese officials, and more effective pressure on their Chinese and Russian sponsors.

But our failure to take these steps does not mean that mass suffering does not prick our consciences. It manifestly does. Our failure to put more of our energy and resources into protecting statistical victims has something to do with psychology and media, but probably has more to do with the tragic choices presented by geopolitics in a world win which great evil and cruelty create immense human suffering.

[Peter Schuck, guest-blogging, May 10, 2007 at 4:12pm] Trackbacks
Avoiding Bad Bets, Removing Bad Apples

My apologies. I posted this a few days ago, but with the comments on my initial posting, so here it is again. I will follow immediately with another one from this morning that I also mis-located.

My next research bearing on bad apples is to look at the NYC system to see what happens to the chronically disruptive student who, under our view, should be more readily removed from the classroom and perhaps from the school unless and until he/she is reformed and no longer harms good apple students. There does not appear to much good information about the nature and quality of the alternative programs to which they are sent, how long they remain, what happens to them there and once they leave those programs, and the like. Any ideas?

Best Student Request Ever?: Crooked Timber has the details. Too bad the student couldn't just go to the Registrar and fill out a "grade change" form.
A Bit More on the Law & Economics of the Godfather:

I'll just add one quick thought to Ilya's comments on the law & economics of the Godfather. We are all by now probably familiar with the prisoner's dilemma. In the literal prisoner's dilemma, the problem arises because of the inability of the two isolated prisoner's to communicate and coordinate, thereby leading to both prisoner's defecting and a greater sentence for both. This is the suboptimal outcome for both of them (although the optimal outcome for society, a point that is often overlooked).

So what is the solution to the literal prisoner's dilemma? The mafia or some other sort of organized crime (such as gangs). One of the things that these institutions do is to solve the coordination problem among prisoners by promising them that the personal costs of defection (talking) will be higher than cooperation (keeping quiet). Because even if you talk and get a reduced sentence, your life after that is likely to be short and violent. So the mafia solves the coordination game by promising a higher cost from talking than by being quite. Ingenious (in a nefarious sort of way). This may provide some explanation for why these organized crime operations seem to gain and hold great market share in the industries in which they operate.

One response to this is, of course, is the witness protection program, which is designed to overcome this coordination solution. That's the carrot. But another solution was suggested to me a few years ago by a student in my Public Choice and the Law class. He arged that much-maligned mandatory minimum sentences may do the same thing by providing a stick to induce the suspect to talk. Mandatory minimums make it possible for a prosecutor to precommit to a serious and predictable punishment on the back end, rather than leaving it up to a judge with greater sentencing discretion across a wider range. Let me stress that this is not intended to be an endorsement (or the opposite) of mandatory minimum sentences. I note that in the Sopranos, for instance, through the years there have been recurrent expressions of concern about mandatory minimums.

My student started writing up the paper as a law review article, so maybe someday he'll publish it some day (at least I've never seen any scholars offer this particular argument in favor of mandatory minimum sentences).

City Department Spokesman Praises Vandalism:

The Baltimore Sun reports:

A large billboard advertising local air times for the conservative radio talk-show host has been defaced.

Robert Murrow, a spokesman for the city's Department of Public Works, saw the vandalism as he drove to work this morning on I-83 near the Guilford Avenue exit. He called The Sun, saying that someone had poured paint on the image of Limbaugh's face....

"It looks like they took globs of paint and threw it on his face. It looks great. It did my heart good," said Murrow, who admittedly is not a Limbaugh fan.

Kurt L. Kocher, chief spokesman for the city's Department of Public Works and Murrow's supervisor, took issue with Murrow's statement.

"As much as you don't like Rush Limbaugh, you don't endorse vandalism, period," Kocher said. "It's an outrageous comment, and he shouldn't have said it. It is not our policy. I think he got overenthusiastic about his feelings for Mr. Limbaugh. I am very upset about that comment, and I've let him know I'm very upset about that comment. It's his personal comment and it's wrong. It does not belong out there in any kind of official capacity. As far as I'm concerned, he was not speaking for the department."

I'm with Mr. Kocher on this one.

Thanks to NewsBusters for the pointer.

Bill Richardson Has Been Nominated for the Nobel Peace Prize Four Times,

his new ad touts. Wow, that's quite an honor! Uh, except all it takes to get that status is to four times get nominations from any "professor[] of social sciences, history, philosophy, law [or] theology" or any judge or national legislator in any country. That includes, for instance, me. I could nominate you for the Nobel Peace Prize four times, and then you could say in your commercials that you've been nominated for the Nobel Peace Prize four times.

To be fair, this is one small item in the commercial, and Richardson may well deserve recognition as a peacemaker on the merits; I'm speaking here only of the one tidbit about which I have something relevant to say. But it seems to me that this particular "credential" doesn't belong in the ad: If I'm right that the credential is likely to be impressive only to people who don't know how easy it is to get, then it's more misleading than informative.

Thanks to fellow lawprof — and fellow potential Nobel Peace Prize nominator — Steve Lubet for passing along the video (though I have no idea whether this is what he had in mind when passing it along).

Why Not Regulate Guns Like Cars?

A recent discussion I had prompted me to revisit this topic (which I last discussed on-blog five years ago). There are lots of interesting, plausible arguments in the gun control debates — and some that seem appealing but on close viewing prove to be just plain unsound.

One of the latter kind is "Why not regulate guns like cars?" The implicit argument here is "Why not require licenses, registration, tests, and so on for gun possession?" See, for instance, Chicago's Million Moms March on Mother's Day, PR Newswire, Apr. 27, 2000, quoting Million March organizer Donna Dees-Thomases as saying "We want Congress to create a meaningful gun policy in this country that treats guns like cars"; Partnership for Prevention's New Report to Congress Recommends Gun Owner Licensing and Gun Registration, U.S. Newswire, Mar. 24, 2000, quoting Handgun Control, Inc. president Michael Barnes as saying "For years now, we have been calling on Congress to treat guns like cars by a system of licensing and registration."

This argument is odd because cars are basically regulated as follows (I rely below on California law, but to my knowledge the rules are similar throughout the country):

(1) No federal licensing or registration.

(2) Any person may use a car on his own private property without any license or registration. See, e.g., California Vehicle Code §§ 360, 12500 (driver's license required for driving on "highways," defined as places that are "publicly maintained and open to the use of the public for purposes of vehicular travel"); California Vehicle Code § 4000 (same as to registration).

(3) Any adult may get a license to use a car in public places by passing a fairly simple test that virtually everyone can pass.

This is pretty much how many gun rights advocates would like to see guns regulated, and is in fact pretty close to the dominant model in the 40 states that now allow pretty much any law-abiding adult to get a license to carry a concealed weapon: No need to register or get a license to have a gun at home, and a simple, routine test through which any law-abiding citizen can get a state license to carry a gun in public.

Gun control advocates would in reality prefer a much more onerous system of regulations for guns than for cars. Of course, one can certainly argue that guns should be regulated more heavily than cars; thoughtful gun control advocates do indeed do this. But then one should candidly admit that one is demanding specially burdensome regulation for guns — and not claim to be "merely asking that guns be regulated like cars."

Incidentally, I don't claim any great originality on these points: Others have made them before me, see, e.g., David Kopel's Taking It to the Streets, Reason, Nov. 1999. But some things are worth repeating.

Interesting Fourth Amendment Question: If the police want to collect a suspect's DNA sample, can they mail him a letter under false pretenses, wait for a response, and then analyze the seal on the letter (which the suspect likely sealed with saliva) to collect the DNA, all without a warrant? A divided Washington Supreme Court has just concluded that the answer is "yes" in State v. Athan (see pages 20-25). Howard has links to the various opinions in the case here.
Knuckling Under, Down Under:

According to an article in Australia's 'The Age,' Hew Griffiths, a 44-year-old Australian, has been extradited to the U.S. to face criminal copyright charges. Griffiths was the leader of a group named "Drink Or Die," which (again, according to the article) "cracked copy-protected software and media products and distributed them free of cost."

It is, if I am not mistaken, the first time that a foreign national has been extradited to the United States to face copyright charges, and it is, according to the article, the first time that Australia has permitted extradition of anyone facing such charges.

What's interesting about it is this: it is black-letter law that the U.S. Copyright Act does not have "extra-territorial effect." It grants certain exclusive rights (to reproduce, to distribute, etc.) to the copyright-holder, but those rights -- at least as I (and all of the cases that I am aware of) have always understood the matter -- stop at the US border. US copyright law does not, in other words, prohibit anyone from, say, taking a copy of Eminem's last CD to Brazil and reproducing it and/or redistributing it and/or performing it in Brazil, because US copyright law does not grant Eminem (or whomever the copyright holder might be) the exclusive right to reproduce or redistribute the work in Brazil (or in China, or Australia, etc.). Brazilian copyright law, of course, may do so (and almost surely does do so, given that Brazil is a member of the Berne Copyright Convention and a signatory to the GATT, both of which require it to grant Eminem those rights under its local law).

The ordinary course of action, then, would be to request that Australian authorities take action against Mr. Griffiths for his violation of Australian copyright law in the circumstance described. But that's not what happened -- in fact, apparently Griffiths agreed to plead guilty to violating Australian law, but the prosecutors refused that request and went ahead and processed the extradition request.

So I'm at a bit of a loss to know what happens to Mr. Griffiths when he comes before the court in Virginia (where he's now being held). What's going to be the charge? If his actions took place exclusively in Australia (as they apparently did), where's the violation of US law?

Public Interest Comment on Subprime Mortgage Lending:

I have recently become an Affiliated Scholar with the Mercatus Center at George Mason University working on issues within their Regulatory Studies program, especially related to issues of competition and consumer protection. Last week, in response to a request for Comments by the federal financial regulatory agencies I (along with Mercatus staffer Joe Adamson) filed a comment on subprime mortgage lending standards. Our Comment reviews the existing economics and empirial literature on subprime lending.

Our Comment is available here.

Giuliani on the Second Amendment -- More Details, Please:

Giuliani's Web site reports:

Rudy Giuliani is a strong supporter of the Second Amendment. When he was Mayor of a city suffering an average of almost 2000 murders a year, he protected people by getting illegal handguns out of the hands of criminals. As a result, shootings fell by 72% and the murder rate was cut by two-thirds. But Rudy understands that what works in New York doesn’t necessarily work in Mississippi or Montana.

Naturally, I'm pleased that Giuliani at least expresses strong support of the Second Amendment (though I hope this isn't "the Second Amendment only protects the rights of states, and I strongly support that"). I also prefer "getting illegal handguns out of the hands of criminals" — assuming this means people with a preexisting criminal record rather than just people who are criminals because we've banned their guns — rather than "keeping guns out of our inner cities" (which on its face speaks of all guns, illegal or not, and inner cities generally, not criminals' possession in particular). [UPDATE: Note this endorsement on the Giuliani site from Rep. Candace Miller: "For example, on the issue of crime, let me use this example, the Mayor is a very strong supporter of the second amendment as I am, and one of the things that those of us who believe in the second amendment, we always say, is look we don’t need any more new gun laws, what we need to do is just enforce the laws that are currently on the books that exist."]

Still, I'd love to hear some more details from the Giuliani camp. Among other things, note the disconnect between the second and third sentences in the official position statement and the last sentence: I'd think that getting illegal handguns out of the hands of criminals would be good even in Mississippi or Montana — in my experience, proposal for different treatment of guns in big cities vs. the countryside has generally had to do with restricting what law-abiding city residents may do. Can anyone point me to more specific discussions of Giuliani's platform on guns (or for that matter Obama's or the other candidates')?

Admin Law Blog:

The Law Professor Blogs Network now includes the Administrative Law Prof Blog.


Wednesday, May 9, 2007

Cincinnati Restaurateur Doesn't Serve Notorious Killers:

The Cincinnati Enquirer reports:

Jeff Ruby isn’t a big O.J. Simpson fan.

The Cincinnati restaurateur made that clear last week when he asked Simpson to leave his steakhouse in Louisville because the former football great and murder defendant makes him “sick to my stomach.”

But does disliking a guy give Ruby the legal right to deny him a steak?

Civil rights lawyers say it does.

“It’s his business,” said Cincinnati lawyer Lou Sirkin. “He’s got the right to do that.”


The newspaper further reports, "Simpson’s lawyer has said he might pursue legal action and accused Ruby of excluding Simpson on the basis of his race." Indeed: If Ruby has been serving notorious white killers, but rejected O.J. because he's black, that's illegal. But somehow I doubt that this is what was happening.

Good work, Mr. Ruby.

Thanks to Ethan Hahn for the pointer.

Does Barack Obama Have Even More Ambitious Plans for Gun Control?

So I checked out Barack Obama's campaign site to see what he says about guns there. There's no formal position paper that I could find, but there is a speech that says this:

I believe in keeping guns out of our inner cities, and that our leaders must say so in the face of the gun manufacturers' lobby -- but I also believe that when a gang-banger shoots indiscriminately into a crowd because he feels somebody disrespected him, we've got a moral problem. There's a hole in that young man's heart -- a hole that the government alone cannot fix.

Any thoughts on what exactly "I believe in keeping guns out of our inner cities" might mean?

Related Posts (on one page):

  1. Does Barack Obama Have Even More Ambitious Plans for Gun Control?
  2. Obama's Support for a Ban on Sales and Transfers of All Semi-Automatic Weapons:
Obama's Support for a Ban on Sales and Transfers of All Semi-Automatic Weapons:

Just wanted to highlight a fact I discuss in more detail in the post below: Sen. Barack Obama's stand on guns is apparently to support a ban on sales and transfers of all semi-automatic weapons.

For those not up on the details, note that this is far broader than the existing bans on fully automatics, or the bans on so-called "assault weapons." Most modern handguns (such as my own Glock 17) are semi-automatic, as are many rifles (such as my Ruger 10/22) and quite a few shotguns. And while the ban would still allow sales of revolvers, bolt-action rifles, pump-action shotguns (such as my Mossberg), and similar guns, there's good reason to think that a broad ban on semi-automatics would lead to still broader bans.

Related Posts (on one page):

  1. Does Barack Obama Have Even More Ambitious Plans for Gun Control?
  2. Obama's Support for a Ban on Sales and Transfers of All Semi-Automatic Weapons:
Only a Paranoid Would Worry About Guns Being Banned:

I routinely hear this argument -- no need to worry about the slippery slope, or about this or that Presidential candidate, or whether the Second Amendment is read as protecting the right to bear arms. Given how much Americans love guns, only a paranoid would worry about guns being banned. The only things that are really on the table, or likely to get on the table, are some modest regulations. A few thoughts in response.

1. Calls for total bans on handguns or all guns: It doesn't take a paranoid, it seems to me, to worry about gun bans when many leading politicians, news outlets, and other institutions have called for such bans. See here for a list (which is not intended to be complete). Recall also that one American jurisdiction (D.C.) does make it illegal for you to keep any gun ready for self-defense, even in your own home. (The D.C. Circuit decision striking down that ban on Second Amendment grounds hasn't yet taken effect.) Chicago and some neighboring cities ban handguns; New York, I'm told, makes handguns quite hard to get.

2. Worrying about fellow citizens' rights: It's true that the overwhelming majority of gun owners, and of gun rights supporters, live in jurisdictions in which it's unlikely that gun bans or handgun bans will be enacted any time soon. But so what? California abortion rights supporters worry about Louisiana women's access to abortions, not just about their own. You wouldn't tell them, "look, you live in California, why do you care about constitutional protection about abortion rights," because people who see something as a basic human right tend to worry about their fellow citizens' access to that right, and not just about their own. Why then assume that American gun rights supporters are purely in it for their own self-interest?

3. Looking down the road at possible future proposals: Gun rights supporters, like abortion rights supporters, free speech supporters, and supporters of other rights, also sensibly try to think ahead, not just to next year but also some decades down the line.

Take, for instance, bans on semiautomatic weapons (not fully automatic weapons or even so-called "assault weapons," but all semiautomatic weapons). Barack Obama is on the record as endorsing a total ban on "the sale or transfer of all forms of semi-automatic weapons." Now this would cover the majority of all handguns now being manufactured, as well as many rifles and quite a few shotguns. But I acknowledge that by itself it won't dramatically restrict people's ability to defend themselves, because revolvers (for handguns), bolt-action rifles, and pump-action shotguns would still be legal, and would be pretty much as effective for self-defense as semiautomatics.

Yet what would happen after this ban is enacted? To the extent the ban would have any effect on criminals, it would lead them to shift to revolvers, bolt-action rifles, and pump-action shotguns. Crime using those kinds of weapons would thus go up.

What do you expect a President Obama and others who take his view to do? Just say "Well, we were for a ban of semi-automatic weapons, and that's all we were for; though now more gun crime is being committed with non-semi-automatic weapons, we're not going to touch them"? Or would it be likelier that they'll start talking about "closing the revolver loophole," or banning "assault revolvers," or dealing with the "skyrocketing revolver crime rate"?

It doesn't take a paranoid to assume that the pro-gun-control forces would take the latter course -- and might succeed in that course, at least in many jurisdictions. It may take some years for that to happen. But people who care strongly about what they see as an important right want to preserve it not just for now, but for decades to come, not just for themselves, but also for their children.

So I wouldn't condemn those who worry about broad gun bans as paranoid, just as I wouldn't condemn those who worry about broad abortion bans as paranoid. When lots of people keep talking about banning guns, when some cities have banned handguns, and one has banned possession of any guns in a state in which they can be immediately used for self-defense, and when a leading Presidential candidate is on the record as supporting a ban on all semiautomatic guns, being worried about gun bans -- not for the whole country today, but for some of your fellow citizens today, and perhaps for many more in a few decades -- is perfectly reasonable.

Thanks to Cory Hojka for the pointer to Obama's opinion on semi-automatic weapons.

OK, Now This Might Suggest a Lapse of Judgment Rather Than Just Being Tired:

The Washington Post reports:

[Mitt Romney] also criticized people who choose not to get married because they enjoy the single life.

"It seems that Europe leads Americans in this way of thinking," Romney told the crowd of more than 5,000. "In France, for instance, I'm told that marriage is now frequently contracted in seven-year terms where either party may move on when their term is up. How shallow and how different from the Europe of the past."

If this quote is accurate and in context, then it does seem more than just a screw-up caused by being tired -- Romney went out of his way to say this, and must have had at least some opportunity to reflect on it and to realize that it bears a little more checking. So it seems to me this reflects worse on him than the 10,000-death-toll (an error in one number, and one that was apparently fairly promptly corrected) misstatement by Obama.

See also the Orson Scott Card connection, courtesy of Ana Marie Cox (Swampland @ Time).

Related Posts (on one page):

  1. OK, Now This Might Suggest a Lapse of Judgment Rather Than Just Being Tired:
  2. Tired:
Do We Need Tenure to Protect Academic Freedom?

In recent weeks, a number of prominent professor-bloggers have criticized the tenure system, including Bryan Caplan, Freakonomics author Steve Levitt, Brian Tamanaha, and our own David Bernstein. These writers all point out that tenure protects shirkers and mediocre scholars. I would add that it also protects professors who are bad teachers or mistreat students in ways that fall short of the very severe offenses (i.e. - serious sexual harrassment or other criminal misconduct) that would allow the school to fire a tenured faculty member. I also agree with Bryan Caplan and David Bernstein's suggestion that tenure persists despite its inefficiency in large part because universities are nonprofit or governmental institutions that have little incentive to adopt efficient policies.

However, none of these writers fully address the main argument in favor of tenure: the claim that it is needed to protect the academic freedom of professors with unpopular political views. That argument is not completely without merit, but is very much overstated.

As David mentions in his post (linked above), the institution of tenure is not enough to prevent ideological discrimination in academic hiring. A faculty that wants to discriminate can still do so in entry level hiring or at the point when it is decides whether or not an assistant professor gets promoted to tenure. If the faculty or administration is intent on enforcing ideological conformity, it can usually do so quite effectively even without having the ability to fire tenured professors. If it is not, then tenure is probably not needed to protect academic freedom at that particular institution.

At most, therefore, tenure will only protect the academic freedom of professors who either 1) manage to keep their unpopular views hidden from their colleagues until after they get tenure, or 2) have a road to Damascus conversion to unpopular views after getting tenured status. Such cases are not unheard of, but they are likely to be extremely rare. Tenure might also occasionally protect a professor whose views are generally acceptable to his colleagues and the administration, but who occasionally makes a stray unpopular or un-PC remark. For example, Ward Churchill's far left views were apparently acceptable to the University of Colorado administration and faculty (at least to the extent that they didn't want to get rid of him) until he really went off the deep end by calling the victims of 9/11 attack "little Eichmans." I suspect, however, that, even in the absence of tenure, it is unlikely that universities will often seek to fire professors just for making one or a few isolated controversial comments.

There is no way of perfectly protecting professors who convert to political views unpopular with their colleagues or make controversial remarks. However, perfect protection is probably unnecessary, because cases of firing for such reasons are likely to be rare. Moreover, universities can take steps to further reduce their likelihood. For example, they can sign professors to multiyear contracts that include provisions forbidding the school to fire the person (or refuse to renew his contract) for political or ideological reasons. Such contracts won't be perfect; a crafty administration could fire a professor for ideological reasons while concocting a plausible cover story showing that they "really" did it for a legitimate cause. However, I doubt that universities will often do this, especially given the threat that the professor in question could sue the university for breach of contract and create adverse publicity for it.

Ultimately, tenure probably does provide some protection for academic freedom beyond what we would have otherwise. The real issue, however, is whether this small increment of academic freedom is enough to justify the very high costs of the institution. At least at most schools, I suspect that the answer is no.

Related Posts (on one page):

  1. Do We Need Tenure to Protect Academic Freedom?
  2. Tamanaha on Tenure:
More on the Law and Economics of the Godfather:

Some commenters on my earlier post on the law and economics of The Godfather noted that I ignored the strong theme of family and personal loyalty in the book. True enough. But this element of the book also fits in with the libertarian/law and economics story I emphasized in my post. The Mafia and other large black market enterprises are often organized on the basis of family, personal, and ethnic ties in large part because it is difficult for them to enforce agreements and ensure loyalty in other ways. Obviously, they cannot rely on courts to enforce labor contracts, address principal-agent problems, prevent employees from appropriating their bosses' property, and so on. Thus, they try to hire people whose family or ethnic loyalties will ensure at least some degree of trustworthiness. Not only do Prohibition, the War on Drugs, and other similar policies foster organized crime - they also increase nepotism and ethnic discrimination. This inference, unlike the ones I mentioned in my last post is not explicitly drawn by Mario Puzo in his book and I don't know if he would have agreed with it or not. But it is a natural extension of the standard economic analysis of organized crime and black markets.

Related Posts (on one page):

  1. More on the Law and Economics of the Godfather:
  2. The Law and Economics of The Godfather:

Pena v. State (Tex. Ct. App. May 2), holds that the Texas Constitution provides defendants with more rights to relief than the U.S. Constitution in cases where the prosecution had inadvertently destroyed evidence. Here are a few sentences from the opening two paragraphs of Chief Justice Gray's dissenting opinion (some citations omitted):

“As a dog returns to its vomit, so a fool repeats his folly.” Proverbs 26:11. As the majority did in 2005, the majority again reverses Pena’s conviction, and holds that the trial court erred in overruling Pena’s objections to the testimony of Texas Department of Public Safety criminologist Charles Mott and related evidence without giving a jury instruction unknown to Texas law.... Pena’s brief on remand adds nothing, but merely regurgitates the majority’s analysis in Pena I....

The majority’s opinion glosses over two properly dispositive parts of the analysis, namely preservation of error and harm, in less than a page each, in order to publish its thirty-six page, mediocre law-review article on the merits of Pena’s issues under the Texas Constitution....

The majority responds, in footnote 27: "In reading the dissenting opinion’s selection from the Scriptures, we are reminded of the recent observation of the Court of Criminal Appeals: 'First, the statement is unnecessary; it contributes nothing to the legal issue before us. Second, and most importantly, it is highly unprofessional. When a judge chastises other members of the judiciary in this manner, it not only reflects poorly on the judge, it undermines the integrity of the justice system. The words of Supreme Court Justice Kennedy are particularly appropriate here: 'The collegiality of the judiciary can be destroyed if we adopt the habits and mannerisms of modern, fractious discourse. Neither in public nor in private must we show disrespect for our fellow judges. Whatever our failings, we embody the law and its authority. Disrespect for the person leads to disrespect for the cause.' If public respect for the judiciary is to be maintained, it must begin from within.'"

What's going on there in Waco?

United States v. Vilar: Last month, Judge Ken Karas of the Southern District of New York handed down a very interesting Fourth Amendment decision, United States v. Vilar (link to an edited version).

  Vilar addresses two questions that are becoming increasingly important in Fourth Amendment law: the rules for applying the Fourth Amendment overseas, and the rules for searching and seizing computers. Although I haven't checked on Westlaw, I think Vilar may be the first opinion to apply the Fourth Amendment to compliance with Mutual Legal Assistance Treaties. It's also an unusually comprehensive and scholarly opinion, albeit one that cites certain law review articles. Anyway, definitely check it out if you're interested in these areas. (The computer-reated materials are on pages 17-21, and the materials on the Fourth Amendment abroad are on pages 21-34.)

  A particularly interesting aspect of Vilar is that it has an extensive discussion of United States v. bin Laden, 126 F.Supp.2d 264 (S.D.N.Y. 2000), a case involving the 1998 bombings of U.S. embassies in Kenya and Tanzania that has become a impoortant precedent on applying the Fourth Amendment overseas. Who was on the prosecution team in bin Laden? Ken Karas.

The AP reports:

Barack Obama, caught up in the fervor of a campaign speech Tuesday, drastically overstated the Kansas tornadoes death toll, saying 10,000 had died. The death toll was 12.

“In case you missed it, this week, there was a tragedy in Kansas. Ten thousand people died — an entire town destroyed,” the Democratic presidential candidate said in a speech to 500 people packed into a sweltering Richmond art studio for a fundraiser....

As he concluded his remarks a few minutes later, he appeared to realize his gaffe.

“There are going to be times when I get tired,” he said. “There are going to be times when I get weary. There are going to be times when I make mistakes.”

Obama spokesman Bill Burton said later that the senator meant to say “at least 10,” instead of 10,000....

This doesn't seem to me like a simple slip of the tongue, as when you mean to say one thing but accidentally say another (e.g., "at most 10" instead of "at least 10"). The "thousand" must have been deliberate at the time, though surely not thought through — a ten-thousand-death natural disaster would, to my knowledge, be unprecedented in recent American history; if one thought about it even for a moment, one would realize that the number must be wrong.

But the tiredness explanation nonetheless strikes me as perfectly reasonable. Campaigning for President is, by all accounts, an immensely tiring task — basically nonstop work morning to night, traveling, constantly talking, making political decisions, worrying. I suspect nearly all of us, laboring under that kind of schedule, would make errors of one sort or another in what we say. Just think about the slip-ups you sometimes make after any long spell of intense work. Seems to me we ought to cut the man (and all his fellow candidates) some slack on this score.

For a different view, see Don Surber. Thanks to InstaPundit for the pointer.

UPDATE: OK, this is just zany. I post (1) defending Obama against charges that he made some telling gaffe, and (2) trying to use this one incident to urge more broadly that everyone cut people more slack on slip-ups they make in the middle of an extremely hectic schedule. I do so after others, both in the mainstream media and in blogs, note the story, and after some use the story as an argument against Obama. (Just check out the links that I give and you'll see.)

But I guess you can't please some people: "Why would you possibly post on this?" "Complete non-event .... Will we see more of this sort of thing from Prof. Volokh as the election approaches?" "the media vultures who want to make stories out trivial events I agree. Too bad this website joins the flock." Apparently even noting that there is this criticism of Obama out there and defending him against the criticism is somehow beyond the pale.

It's going to be a long, unpleasant election season.

Workman's Execution:

At 1am central time, Phillip Workman was executed for the murder of Lieutenant Ronald Oliver. Of note, Workman was the first capital defendant to be executed since the state of Tennessee's revised its lethal injection protocol so as to ensure the process does not cause unnecessary pain and suffering during execution.

The NYT reports:

Philip R. Workman's execution date has come and gone five times in the quarter-century since his conviction for shooting a Memphis police officer. Early Wednesday, he was finally executed at the Riverbend prison on the industrial outskirts of this city.

The execution, the first since the state reviewed and revised its lethal injection procedures, came after a flurry of appeals from Mr. Workman's attorneys, who unsuccessfully sought stays from the U.S. Supreme Court and the Tennessee Supreme Court. . . .

Mr. Workman's case has received attention in part because it came so soon after the state's review of lethal injection procedures. Tennessee is among a small group of states that have scrutinized lethal injection, . . .

UPDATE: Sentencing Law & Policy rounds up some related posts here.

"France will not abandon the women who are condemned to the burqa"

President-elect Nicolas Sarkozy's first speech to the French nation concluded with a wonderful endorsement of human rights. (Video here.)

Sarkozy spoke from a prepared text , which appears on his official campaign websites. If you read the text while listening to the speech, you will find various minor ways in which he deviated from the text, such as by inserting an extra word. The text of the speech as actually delivered is on Le Figaro's website.

In the prepared text, the penultimate paragraph is:

Je veux lancer un appel à tous ceux qui dans le monde croient aux valeurs de tolérance, de liberté, de démocratie et d’humanisme, à tous ceux qui sont persécutés par les tyrannies et par les dictatures, à tous les enfants et à toutes les femmes martyrisés dans le monde pour leur dire que la France sera à leurs côtés, qu’ils peuvent compter sur elle.
In English: "I want to launch a call to all those in the world who believe in the values of tolerance, of liberty, of democacy and of humanism, to all those who are persecuted by the tyrannies and by the dictators, to all the children and to all the martyrized women in the world to say to them that the pride, the duty of France will at their sides, that they can count on her."

(The italicized words were in the speech as delivered, but not in the prepared text.) Pretty good so far. Then, Sarkozy delivered a paragraph which did not appear in the prepared text, and his rising passion matched that of the audience:
La France sera aux côtés des infirmières libyennes enfermées depuis huit ans, la France n'abandonnera pas Ingrid Betancourt, la France n'abandonnera pas les femmes qu'on condamne à la burqa, la France n'abandonnera pas les femmes qui n'ont pas la liberté. La France sera du côté des opprimés du monde. C'est le message de la France, c'est l'identité de la France, c'est l'histoire de la France.
In English: "France will be at the sides of the Libyan nurses locked up for eight years; France will not abandon Ingrid Betancourt; France will not abandon the women who are condemned to the burqa; France will not abandon the women who do not have liberty. France will be by the side of the oppressed of the world. This is the message of France; this is the identity of France; this is the history of France."

The speech concludes:
Mes chers compatriotes, nous allons écrire ensemble une nouvelle page de notre histoire. Cette page de notre histoire, mes chers compatriotes, je suis sûr qu'elle sera grande, qu'elle sera belle. Et du fond du coeur, je veux vous le dire, avec la sincérité la plus totale qui est la mienne au moment où je vous parle: Vive la République et vive la France.
"My dear compatriots, together we will write a new page of our history. This page of our history, my dear compatriots, I am sure that it will be grand, that it will be beautiful. And from the bottom of the heart, I want to say to you, with the most total sincerity which is mine at the time when I speak to you: Long live the Republic and long live France."

If Sarkozy can govern as he spoke, if he can lead France in leading the worldwide fight for human rights, if he can energize 21st century France with the eternal truths of liberty that are the best elements of France's tradition, then Nicolas Sarkozy--like Charles de Gaulle and Ronald Reagan--will earn a place in the pantheon of the most important democratic leaders, who took a tired and timid nation in decline, and led it to a new era of greatness.

French political rallies often conclude with La Marseillaise. It is inspiring to listen to the Marseillaise among the huge crowd at Sarkozy's victory speech at La Place de la Concorde.

Allons enfants de la Patrie
Le jour de gloire est arrivé.
Contre nous, de la tyrannie,
L'étandard sanglant est levé...
Liberté, Liberté chérie,
Combats avec tes défenseurs !

Arise children of the nation
The day of glory has arrived.
Against us, tyranny's
Bloody banner is raised...
Liberty, dear Liberty,
fight alongside your defenders!

Aux armes citoyens!

The Dangers of Newspapers Publishing the Names and Addresses of Citizens with Handgun Permits:

Andrew Sullivan has asked "If gun rights are civil rights, why would anyone feel the need to hide the fact that they own one?" A post by Eugene provides a commonsense list of a wide variety of circumstances in which a person exercising her civil rights would have good reasons for preferring that newspapers not publish a list of all the people in an area who exercise a particular right.

In a recent article in America's 1st Freedom, Paul Gallant, Joanne Eisen and I addressed the controversy of newspapers publishing lists of people with handgun permits. We discuss various ways in which the publication can assist criminals. One newspaper which was considering publishing a list was The News Sentinel of Fort Wayne, Indiana:

When the newspaper surveyed its readers, the paper was informed of a situation in which one licensee was living a reclusive, secretive life because of fear of a violent ex-spouse. If the paper published the CHL [concealed handgun license] list, the woman’s life would be endangered. The newspaper’s final decision was in favor of the immediate safety of that one woman, and thus against publishing the list.
Victims who are hiding from violent stalkers are one group of people with handgun licenses who have a special need for confidentiality; another group is retired police officers, who are at risk of being targeted by revenge-minded criminals.

Related Posts (on one page):

  1. The Dangers of Newspapers Publishing the Names and Addresses of Citizens with Handgun Permits:
  2. "If Gun Rights Are Civil Rights,"

Tuesday, May 8, 2007

The Law and Economics of The Godfather:

This year is the 35th anniversary of the release of The Godfather, the famous 1972 movie based on the 1969 book by Mario Puzo. To celebrate, I recently reread The Godfather, and discovered that it has a lot of interesting material on on law and economics that wasn't always emphasized in the movie.

Everyone remembers Don Corleone's famous saying that he's going to make "an offer you can't refuse." But for some reason, people forget that the Don also said that "a lawyer with his brief case can steal more than a hundred men with guns" (Godfather, pbk. edition, 52). One of the recurring themes of the novel is that people turn to the Mafia for help because of the corrupt and self-serving nature of many political and legal institutions that systematically allowed elites to plunder the politically weak. Puzo recognized, as sociologist Diego Gambetta explained more systematically, that the Sicilian Mafia flourished because it provided better "protection" against crime and violations of property and contract rights than did the official authorities, who generally protected only the politically powerful elite. To a lesser extent, a similar dynamic enabled the America Mafia to emerge in Italian immigrant communities in the early 1900s, as Puzo vividly portrayed in his chapter on the rise of Don Corleone.

Puzo also shows how Prohibition and afterwards the War on Drugs, provided opportunities for organized crime to grow and flourish. It was Prohibition that enabled the Godfather to go from being an "ordinary . . . businessman" to a "great Don in the world of criminal enterprise" (pg. 213). And, of course, the great Mob war that forms the central plot of the book is a conflict over Don Corleone's unwillingness to help other crime families expand into the illegal drug business.

Puzo further explains, as economists would predict, that Prohibition, laws banning gambling, the War on Drugs, and other legislation that creates black markets stimulates criminal violence in another way. Since bootleggers and drug dealers cannot go to court to enforce their contracts and other business arrangements, they often have little choice but to resort to private violence to do so. And, of course, a black market organization that starts off by providing "protective" defensive violence also has strong incentives to engage in aggression as well. This is what Puzo's Mafia characters have in mind when they repeatedly say that their violent actions are just "business" and not "personal." Puzo also shows how Prohibition, anti-gambling laws, and the War on Drugs stimulated police corruption. Captain McCluskey, the corrupt NYPD officer whom Michael kills, collects enormous bribes from criminals because he is in effect the gatekeeper of several highly lucrative illegal markets (gambling, drugs, prostitution).

Finally - and perhaps most radically - Puzo repeatedly emphasizes the similarities rather than the differences between Mafia leaders and conventional politicians and public officials. Both force people to pay for "protection," both are portrayed as corrupt and self-serving, and both cover their crimes with a veneer of moralistic rhetoric.

I do not mean to say that Puzo was deliberately advocating a libertarian view of government in The Godfather. As far as I know, his politics were conventionally liberal, and The Godfather also includes a very negative view of private industry (which, like the government, is portrayed as being more similar to the Mafia than different from it). Nonetheless, the novel vividly highlights some of the shortcomings of modern government, particularly the ways in which its failure to provide protection and its efforts to stamp out alcohol and drug use stimulate the rise of organized crime.

Most readers would perhaps deny that this is the central theme of The Godfather, pointing instead to the story of the moral corruption of Michael Corleone, who gradually becomes enmeshed in his family's criminal enterprises. Michael's fall from grace is indeed the main focus of the book. But it is worth noting that that fall was itself the result of an attack on the Corleone family by rival Mafia cliques seeking to control the emerging market in illegal drugs. The dispute between the Corleones and their rivals cannot be settled peacefully in large part because the market in question is an illegal one.

The Godfather was not intended to be a libertarian critique of the state. Indeed, Puzo apparently wrote the book in large part because his earlier, more literary novels failed to make money, and he wanted to write a relatively dumbed down book that could become a bestseller. Sometimes, however, a book goes beyond the author's intentions, and so it was with The Godfather.

UPDATE: Over at Crooked Timber, Henry Farrell claims that the emergence of the Mafia in Sicily cannot be blamed on the failures of the Italian state because "the Italian Mafia preceded the expansion of the Italian state [after unification in 1860-61], and . . . its success can’t be attributed to the Italian state’s innate weaknesses (or over-repressive nature)." This argument confuses the absence of a unified Italy with the absence of a state. Before Italian unification, Sicily was part of the Kingdom of Two Sicilies, which also included Naples, and earlier still was a fully autonomous monarchy. The Sicilian government of that era was famously ineffective and corrupt, and also biased in favor of the elite, thus providing little protection for ordinary people (and even for some elites) and helping to stimulate the rise of the Mafia as an alternative source of "protection."

Farrell also criticizes my interpretation of Diego Gambetta's work. However, in this article, Gambetta specifically identifies the shortcomings of the state in Sicily as a major contributor to the rise of the Mafia (though he also notes other contributing factors):

Virtually everything Franchetti [a 19th century Italian scholar] wrote is supported by the evidence which has since emerged, and what we know about the way the mafia has evolved is largely consistent with his analysis.

Franchetti essentially identifies two related sets of causes for the emergence of the mafia. The first is eminently political and has to do with the absence of credible or effective systems of justice and law enforcement. From at least the time of the sixteenth century . . . , Sicilians were able to trust neither the fairness nor the protection of the law. This pre-existing state of affairs caused considerable difficulties to the newly formed [unified] Italian state, which, in spite of its weakness and its mistakes, might otherwise have claimed the right to a far higher degree of legitimation than any of the previous regimes [in Sicily]....

Related Posts (on one page):

  1. More on the Law and Economics of the Godfather:
  2. The Law and Economics of The Godfather:
Tamanaha on Tenure:

At Balkinization, Brian Tamanaha offers some "straight talk on tenure" in law schools.

Phillip Workman's Final Appeals Split Sixth (Twice):

In 1981, Phillip Workman robbed a Wendy's restaurant in Memphis, Tennessee. While attempting to escape from police, he shot and killed Lieutenant Ronald Oliver. In 1982, a jury sentenced Workman to death. His case has been in court ever since, and generated two divided decisions from the U.S. Court of Appeals for the Sixth Circuit in just the past week.

On Friday, in Workman v. Bell, a divided panel rejected Workman's motion for a stay of execution. Writing for himself and Judge Sutton, Judge Siler explained:

Philip Ray Workman seeks a stay of execution in connection with his appeal from the denial of a motion under Fed. R. Civ. P. 60(b), a motion contending that the Attorney General for the State of Tennessee perpetrated a fraud upon the district court during Workman’s habeas corpus proceedings. Because Workman has been given considerable process during the 25 years since a state court jury found that he murdered Lieutenant Ronald Oliver, because Workman cannot seriously contend that his allegations have any bearing on a claim of actual innocence given that he testified at the state court trial that he killed Lieutenant Oliver and that he shot and injured Officer Aubrey Stoddard during the incident, . . . because the claims of fraud on the court are exceedingly attenuated and vague, and because the Tennessee Court of Criminal Appeals has rejected the premises of two of the claims, Workman has little to no likelihood of success in showing that the district court abused its discretion in rejecting his Rule 60(b) motion. We therefore deny his motion for a stay.
The panel concluded Workman could not show the "significant possibility of success on the merits" necessary for a stay and suggested, that after two decades of litigation, enough was enough.
Nearly twenty-five years after Workman’s capital sentence and five stays of execution later, both the state and the public have an interest in finality which, if not deserving of respect yet, may never receive respect.
Judge Cole dissented, arguing that "the ultimate merit of Workman's claims has nothing to do with whether a stay of execution is warranted." Rather, Cole argued, "Workman's entitlement to a stay instead turns on whether he has shown a likelihood of success in arguing that he is entitled to an evidentiary hearing to prove his fraud claims." Cole also maintained that another Sixth Circuit panel granted a stay of execution on similar grounds.

Workman had better luck in federal district court on Friday than in the Sixth Circuit, as he obtained a temporary restraining order to delay his execution, arguing that execution by lethal injection would constitute cruel and unusual punishment. Yet this delay would be short-lived. On Monday, the same Sixth Circuit panel vacated the TRO along the same divided lines in Workman v. Bredesen.

Judge Sutton, writing for the court, summarized the court's holding thusly:

This dispute arises from a 25-year-old capital sentence, and the district court’s order, if upheld, would be Workman’s sixth stay of an execution date set by the State over the last seven years. At no point until last Friday, May 4, 2007, did Workman challenge the State’s method of execution, even though the components of the procedure that Workman challenges today have been in existence in the main since 1998. He thus cannot escape the Supreme Court’s and this court’s limitations on dilatory challenges to an execution procedure.

Workman’s prospects for success on the merits also are dim. The Supreme Court has never invalidated a State’s chosen method of execution. No court has invalidated the three-drug protocol used by Tennessee (and 29 other jurisdictions). Several state and federal courts have upheld this same three-drug protocol (including the Tennessee Supreme Court in 2005). Our court vacated a similar stay decision in 2006 with respect to a similar challenge and permitted the State to execute the inmate under the protocol. Notwithstanding the decision of the Tennessee Supreme Court in 2005 and the decision of this court in 2006, the State undertook an effort in 2007 to review and improve the procedure. Workman acknowledges that the new procedure is only slightly different from the old procedure, and he offers no explanation how Tennessee has done anything more than make the new procedure less prone to implementation errors. Everything, indeed, the State has done in reviewing and revising the procedure shows that it is trying to prevent Workman from suffering any pain during his execution, not that it is trying or willing to allow a procedure that imposes unnecessary and wanton pain. For these reasons and those elaborated below, we vacate the district court’s temporary restraining order.

Judge Cole dissented on both substantive and procedural grounds, arguing (among other things) that the court lacked jurisdiction to vacate the TRO.
For the first time in a death-penalty case, to my knowledge, this Court vacates a temporary restraining order—an order that the Court is incompetent to review because it is not appealable—and in so doing clears the way for Philip Workman’s execution on May 9, 2007.

Just as troubling, despite the extensive and detailed allegations Workman raises tending to show that Tennessee’s new lethal-injection protocol will subject him to pain and suffering in violation of the Eighth Amendment; despite that Workman supports his allegations with testimony from physicians familiar with lethal-injection protocols, medical studies, and evidence from recent botched executions; despite the statements from federal courts across the United States expressing deep skepticism with similar lethal-injection protocols adopted by other states; and despite the deference that an appellate court owes to the judgment of a district court, the majority concludes that Workman’s concerns are insufficiently compelling to warrant a brief five-day preservation of the status quo to determine whether his claims have merit.

In the end, I simply cannot conclude that in the face of Workman’s disturbing allegations, the State’s legitimate interest in “finality” and giving effect to its criminal judgments will be irretrievably impaired by the TRO here. Indeed, the State’s interest in executing Workman “will, at worst, simply be delayed but not denied” if this Court affirms the district court’s issuance of the TRO. . . . And if Workman is ultimately successful in proving the constitutional infirmity of Tennessee’s new lethal-injection protocol, “then [the TRO] will have prevented a harm the legality of which will be open to serious question under federal law.” Accordingly, I respectfully dissent.

These are likely the last of Workman's appeals. Workman's execution is scheduled for 1:00am — less than three hours from now. While he obtained a reprieve in 2001 a mere 37 minutes from when he was scheduled to die, this time it appears Workman is out of appeals. The U.S. Supreme Court rejected a stay request earlier this evening.

CORRECTION: I mistakenly attributed the second dissent to Judge Siler, when it obviously was Judge Cole. I regret the error and it is corrected above.

The Realism of The "Formalist" Age: Brian Tamanaha has just posted a really terrific article, The Realism of the "Formalist" Age. The article very persuasively makes a point that I've pondered here before, namely that the basic insights of legal realism were nothing new when the realists claimed to "discover" them. As Tamanaha shows, many perspectives on law that today are considered "realist" were part of the basic understanding of law during what is now characterized as the "formalist" era.

  Here's the abstract:
It is almost a truism in contemporary legal theory and legal history that the 1870s through the 1920s was the age of "formalism." Judges in this period applied logical methods, relied upon conceptual analysis, and rendered decisions in a rule-bound fashion that paid little heed to social consequences. The common law was characterized as comprehensive, gapless, and logically consistent, with a right answer for every case; law was understood to be a science. A more realistic view of law was ushered in by the Legal Realists, who built upon the writings of Oliver Wendell Holmes and Roscoe Pound to destroy formalistic thought. The Realists argued that the law is substantially indeterminate: there are gaps and inconsistencies in the law, exceptions can be found for most rules or principles, precedent often can be enlisted to support opposite outcomes. They argued that judicial decisions should not be based upon abstract conceptual analysis; rather, law is a means to social ends. A number of Realists argued that judicial decisions are the product of subjective predilections of judges, or that judges come to the result first, then structure their legal analysis to rationalize the result.

This article argues that the standard account of the formalist period is fundamentally incorrect. Quoting and citing many speeches and publications, it demonstrates that a consummately realistic view of law and judicial decision making was expressed throughout the so-called formalist period. Many of these realistic statements - mentioning the uncertainty of law, the availability of precedents on all sides, and the understanding that judges' subjective views influence their legal decisions - were uttered by judges, professors, and leaders of the bar. The article shows how the image of formalism was constructed by Roscoe Pound, Karl Llewellyn, and Grant Gilmore in a manner that systematically excluded this large body of realistic discourse, thereby creating a distorted portrayal of the period. Moreover, the article argues that our perception of the Legal Realists (and Holmes) as bold mavericks is erroneous. The Realists were merely the latest episode in a constant stream of skeptical observations about law and judging that extends back many decades.

The objective of this article, beyond correcting our misimpression of these important periods in our legal history, is to break the hold of the formalist-realist antithesis that structures and constrains contemporary views of judicial decision making.
  Highly recommended. (For Brian's blog post that touches on some of the same themes, see here.)
"If Gun Rights Are Civil Rights,"

asks Andrew Sullivan in a post titled "The Gun Closet," "why would anyone feel the need to hide the fact that they own one?"

Am I missing some subtle argument here? Taking the question at face value, the answer is so obvious that it's hard to see what the force of the question might be.

Let's begin with the apparent referent of "The Gun Closet." Andrew Sullivan, I take it, believes that sexual autonomy rights are civil rights, but surely no-one would respond to a newspaper's publishing the names of known homosexuals with "If [sexual autonomy] rights are civil rights, why would anyone feel the need to hide the fact that they [exercise them]?"

The answer is obvious: People who exercise their civil rights sometimes face discrimination or ostracism, at least in certain circles, if the exercise of the rights were to become known. That's why some people feel the need to hide the fact that they are gay. (Maybe they would nonetheless benefit in the long term from coming out of the closet, and maybe society would be better off as a result; but we'd think it strange to ask why they'd feel the need to stay in the closet.)

Likewise as to abortion rights, rights to use contraceptives, rights to speak anonymously, and the like. And likewise as to gun rights: In certain circles, owning a gun, or having a licensed to carry a gun concealed, is frowned on, and may lead to various social and professional repercussions. Perhaps such information should nonetheless be a matter of public record for various reasons, even if information about one's sexual autonomy or abortion history is not. But such an argument would have little to do with whether gun rights are civil rights; one may want to keep private the exercise of one's civil rights at least as much as one wants to keep private other behavior.

Am I missing something? Is there some deep irony -- or deep insight -- to "If gun rights are civil rights, why would anyone feel the need to hide the fact that they own one?" that I'm not grasping?

Thanks to InstaPundit, who has more to say on the subject.

"Rep. Poe Quotes Ku Klux Klan Grand Wizard On House Floor":

So reports Think Progress. Horrible! Except that the wizard (Confederate General Nathan Bedford Forrest) wasn't being quoted for any of his wizardly views, but rather for the famous military advice, "Git thar fustest with the mostest."

Are we really going to insist that political leaders -- or, I take it, any other public figure -- stop quoting racists? That they stop quoting bad people generally? That they stop quoting leaders responsible for immoral violence? No more quotes of Napoleon (a megalomaniac responsible for millions of deaths)? None of Mao Tse-Tung, a very bad man who nonetheless captured something insightful (though obviously not the whole story) when he said, "Political power grows out of the barrel of a gun"?

How about Stalin's "A single death is a tragedy, a million deaths is a statistic," itself something of an indictment of Stalin but also a regrettably accurate description of the way human psychology often works? How about quotes from noted anti-Semite Henry Ford? Noted anti-Semite Martin Luther?

Remember, we're not talking about their racist, anti-Semitic, or pro-pass-murder views. We're talking about things they said on quite different subjects, things that have passed into common usage because they're seen as insightful or well-put.

How much of our vocabulary of phrases would we have to bowdlerize to accomplish this? If that's thinking progress, I want none of it.

Thanks to InstaPundit for the pointer. Note also that there is a separate and irrelevant dispute about whether the quote, while famous, is precise; Roll Call reports that "Civil War scholar Bruce Catton ... wrote that Forrest actually believed the essence of strategy -- and the proper quote -- was 'to git thar fust with the most men.'" I mention this to forestall others' bringing this up; it's clearly unconnected to the propriety of Rep. Poe's using the more familiar version.

Andy Griffith v. Andy Griffith:

William Fenrick ran for sheriff on a "back to Mayberry" platform:

During his campaign, defendant publicly stated that he believed an area of concern in Grant County was speed traps. He specifically referenced plaintiff and Mayberry in expressing his distaste for such law enforcement practices. For example, defendant stated “[t]hey never did that in Mayberry! They never did unethical stuff like that in Mayberry. See, that’s the thing about Andy Griffith. He was honest and straightforward and people respected him for that.”

In fact, he went so far as to change his name to Andy Griffith, and "used the slogan 'Andy Griffith for Sheriff' on t-shirts, yard signs, wristbands, ... and other items," including -- in a twist likely lacking precedent in the TV show -- "condoms."

The original Griffith sued, claiming Andy-come-lately's actions (1) were likely to confuse the public (and thus violated the federal Lanham Act), (2) would dilute the value of the original Griffith's trademark in his name, (3) violated state trade name infringement common law, and (4) state right of publicity law (see § 995.50(2)(b)).

No dice, the court said. As to confusion, "There is not a scintilla of evidence that anyone thought plaintiff was running for Grant County sheriff or that plaintiff was backing defendant’s campaign for sheriff." As to dilution, federal dilution law expressly exempts "[n]oncommercial use[s]," and use in a political campaign should be considered noncommercial. As to the state law claims, "it can be determined to a legal certainty that his damages could not reach $75,000," so the federal court lacks jurisdiction of those claims (and ought not exercise continuing supplemental jurisdiction, based on the now-dismissed federal claims).

The original Griffith may still refile the state claims in state court, though I doubt they will succeed. The candidate's use of the name likely won't be found to be "for advertising purposes or for purposes of trade," which is required for liability under the right of publicity statute. I suspect Wisconsin state trade name law likewise requires commercial use (beyond what is involved in campaigning for a paid government office); but even if I'm mistaken on that, the First Amendment should protect Griffith's speech notwithstanding what state law may say.

Thanks to Patrick Ishmael for the pointer.


My colleague and fellow blogger Prof. Bainbridge has just published Complete Guide to Sarbanes-Oxley: Understanding How Sarbanes-Oxley Affects Your Business. I know nothing about Sarbanes-Oxley or corporate law more generally, but I know that Bainbridge is a top scholar in the field; if I needed to know about the subject, his book would be the first place I'd turn.

Greek Origins of English Words:

Steve Kurtz (Pajama Guy) asks:

1. We've all heard of the Mississippi River Delta. Why on earth is it called a "Delta"?

2. What profession were the original "hypocrites"?

3. What animal is at the heart of "tragedy"?

4. What fruit is at the root of a "sycophant"?

5. What common household item is involved in "ostracism"?

Cool. I knew the answers to 1 and 5, but not 2, 3, and 4.

America's War With Certain Islamic States:

In the conflict resistless, each toil they endured,
     'Till their foes fled dismayed from the war's desolation:
And pale beamed the Crescent, its splendor obscured
     By the light of the Star Spangled flag of our nation.
Where each radiant star gleamed a meteor of war,
And the turbaned heads bowed to its terrible glare,
Now, mixed with the olive, the laurel shall wave,
And form a bright wreath for the brows of the brave.
This, it turns out, is the third stanza of a Francis Scott Key poem that Key ultimately reworked into the Star-Spangled Banner. Thanks to Michael Oren's fascinating Power, Faith, and Fantasy, which alerted me to this.

The chapter on America's war against the Barbary pirates is particularly interesting. Among other things, it reveals that Key's victory song in 1805 was premature: The 1805 victory involved a payment of $60,000 for the release of American sailors held captive by Tripoli, and was followed by continuing captures of American ships by Algerian corsairs, the enslavelement of the ships' crews, and payments by America for the crews' release.

Only in 1815, after the end of the War of 1812 with Britain, did the American navy decisively defeat the corsairs. "So concluded more than three decades of struggle between United States and North Africa. The pirates of Barbary who had captured a total of thirty-five American vessels and seven hundred sailors, and who had threatened America's survival and tarnished its pride, were crushed."

The book also notes that, though the conflict with the Barbary States was sometimes cast a Christendom/Islam conflict, and led to an exacerbation of hostility against Islam (which was already considerable, given that the late 1700s and early 1800s weren't exactly an ecumenical era), it didn't seem to have much of a long-term effect into the 1800s: America ended up having relatively good relations with the Ottoman Empire, for instance, throughout much of the 1800s, partly because it — unlike the European powers — had no territorial ambitions in the area.

The Second Amendment in the Supreme Court:

The D.C. Circuit refused to rehear the Parker case en banc. A few thoughts on this case in the Supreme Court:

1. Timing: I assume that the District of Columbia will petition for certiorari; it has 90 days to do this, so the petition will likely be filed in mid-August. That would mean the Supreme Court will decide in late September whether to hear the case — and if it does agree to hear the case ("grant cert"), it will hear it in early 2008, with a decision handed down by early July of 2008.

2. Chances of the Supreme Court's Hearing the Case: High, I'd say well over 50% (unless Congress moots the question by preempting D.C.'s gun ban). That's a rare thing to say, given that the Court hears only about 1% of the cases that it's asked to hear. But here there is a split among federal courts of appeals on an important constitutional question — the D.C. Circuit and the Fifth Circuit take the individual rights view (see here and here for why the Fifth Circuit's decision can't be dismissed as dictum), while I think nine other circuits take the collective rights view. There is also a split between a federal court of appeals and D.C.'s highest court on the constitutionality of a specific law, which is itself usually seen as a strong signal in favor of cert. This is also the sort of question that the Justices would likely think ought to be decided by the Supreme Court; it's one thing to have different views in different circuits on some technical question, and another to have different views on whether an Amendment in the Bill of Rights secures an individual right or not.

3. Chances of the Supreme Court's Accepting the Individual Right View: Now that's a mystery. I think the individual rights view is correct, and I think the historical evidence should be a powerful influence on the Court.

But note how the vote in the D.C. Circuit broke down: Two conservatives (Silberman and Griffith) supported the individual rights view, but one Republican appointee (Henderson) seemed to reject it. In the en banc vote, the three Clinton appointees (Rogers, Tatel, and Garland) voted to rehear the case, but so did Randolph, a Bush Sr. appointee who to my knowledge is a pretty solid conservative; it's possible that they voted to rehear the case en banc just because it's extremely important, deepens a circuit split, and creates a split with the D.C. Court of Appeals — but generally speaking judges don't vote to rehear a case en banc unless they suspect the panel decision was mistaken. (On the other hand, sometimes judges vote against rehearing a case en banc even though they disagree with the panel decision; I'm not sure why Henderson voted against en banc, but I take it that it isn't because she changed her minds on the merits.)

[UPDATE: Alan Gura, lawyer for the plaintiffs, observes that Judge Randolph also voted to rehear Seegars v. Gonzales, an earlier D.C. Circuit case that rejected on standing grounds a challenge to the gun control law. Gura therefore speculates that Judge Randolph might not disagree with the individual rights view of the Second Amendment, but might instead want to reverse the standing decisions in Seegars and Navegar, Inc. v. U.S.. I'm not sure whether that's so, but in any event that would leave Judge Henderson as an example of a Republican appointee who nonetheless seems to endorse the states' rights / collective rights view of the Second Amendment.]

It's true that in the Ninth Circuit's Silveira v. Lockyer, archliberal Judge Pregerson and Clinton appointee Judge Gould endorsed the individual rights view, alongside the conservative Judges Kozinski, Kleinfeld, O'Scannlain, and T.G. Nelson; so it might be that some of the liberals on the Supreme Court will take a similar view. Still, supporters of the individual rights view ought to worry about the possibility that the Supreme Court vote on the merits will break down much as the D.C. vote seems to have — the liberal Justices being joined by one or two of the conservatives to endorse the states' rights / collective rights view. And on the Supreme Court, that would make a majority for that view, rather than the 2-1 split on the D.C. panel, and the 5-5 split on the court as a whole.

4. What Might a Pro-Individual-Rights Decision from the Supreme Court Do? I expect it will be very narrow, will leave open considerable room for gun controls that are less comprehensive than D.C.'s total ban, and will not resolve the question whether the Second Amendment is incorporated in the Fourteenth Amendment to cover state regulations (though that latter question would of course come up in another case within a few years).

5. How Might the Case Affect the Presidential Campaign? I asked a set of questions about this when the Parker panel decision was handed down; let me repeat them, now that the prospect of Supreme Court review in 2008 is less hypothetical, and now that we are further into the election campaign.

A. What, if anything, will the extra prominence of the issue do to the primaries?

B. Assume the decision comes down in late June 2008, and is 5-4 in favor of the individual rights theory. What will that do to the general Presidential election race?

C. Assume it's 5-4 in favor of the collective rights theory, with Kennedy joining the four liberals on the collective rights side. What will that do to the race? What if it's 5-4 with Roberts or Alito joining the liberals? I take it that if it's not 5-4, or (possibly) if it's 5-4 with a less liberal/conservative split, the effect will be less; is that right?

D. Or is this decision not that relevant, either on the theory that the issue won't energize people that much, or on the theory that plenty of people would be energized on gun control and the Second Amendment regardless of how the case comes down?

Naturally, if one of the Justices retires this year or next, the effect on the Presidential race would be still greater, I suspect.

Related Posts (on one page):

  1. The Second Amendment in the Supreme Court:
  2. DC Circuit denies en banc rehearing for Parker case:
DC Circuit denies en banc rehearing for Parker case:

In the Parker case, a 2-1 majority of the D.C. Circuit found that the DC city council's prohibition on handguns, and its ban on using any firearm for lawful self-defense, were violations of the Second Amendment. Today, the full Circuit denied the DC government's petition for a rehearing en banc.

The decision states: "Appellees' petition for rehearing en banc and the response thereto were circulated to the full court, and a vote was requested. Thereafter, a majority of the judges eligible to participate did not vote in favor of the petition. Upon consideration of the foregoing and appellees' Fed. R. App. P. 28(j) letter, it is ORDERED that the petition be denied."

A footnote to the order states: "Circuit Judges Randolph, Rogers, Tatel, and Garland would grant the petition for rehearing en banc." The following is the list of judges who voted on the petition, with affirmtive votes marked by an asterisk: "Ginsburg (Chief Judge), Sentelle, Henderson, Randolph,* Rogers,* Tatel,* Garland,* Brown, Griffith, and Kavanaugh."

Related Posts (on one page):

  1. The Second Amendment in the Supreme Court:
  2. DC Circuit denies en banc rehearing for Parker case:
Bleg for Laws regarding licensed carry in educational institutions:

I would like to ask commenters to supply specific information regarding state laws which ban (or do not ban) persons with concealed handgun permits from carrying in K-12 schools, day care centers, or colleges/universities. If the law is silent on the subject (as, for example, in Virginia and Colorado regarding universities), it would be helpful to also cite any other information that is available about practices in the relevant state. (E.g., Virginia's legislative defeat of an attempt to outlaw the college ban; the Colorado Attorney General opinion that the University of Colorado regents have the authority to enact a gun ban, unless there is a specific statute saying that they cannot.) If possible, please supply the relevant statutory or case law cites. Please do not rely on newspaper articles. My guess is that statutory college bans are much less common than people might think, and that even though K-12 bans are common, there may be exceptions in states other than Utah.

My request applies not only to the 40 shall issue/do issue states, but also to the 8 states with capricious issue, plus Illinois (no process for permits, but certain classes of people are automatically entitled to concealed carry).

Bush and Israel: The Greatest Threats to World Peace:

The Winter 2006-2007 issue of egards, a French-Canadian conservative journal, contains an article by editor Jean Renaud, "The conservative French-Canadians and the Destiny of America: The lesson of Edmund Burke." The article analyzes what the author sees as the various contemporary intellectual pathologies, including the belief, according to opinion polls, of the English, Canadians and Mexicans that George Bush is a greater threat to world peace than is Iran's president Ahmadinejad. But then Renaud acknowledges that they are right, and his argument seems convincing:

In the 1930s also, persons of good intentions accused this flamethrower [lit. cannon-igniter] Winston Churchill of being the principal danger towards world peace. In a sense, these people were correct. Churchill, in opposing Nazism, menaced world peace, a peace of which the terms had been defined by Hitler. The rejection of tyranny and the resistance to totalitarianism have always been a grave menace to world peace.

(My translation for the text and the title.) Many thanks to the VC readership for informing me, and, I hope, others, about the fine journal, with which I do not always agree, but which does have a vivid appreciation of the importance of Western Civilization resisting Islamofascism. BTW, the article never discusses Israel, but it seems to me that the point about polls regarding Bush as a menace is also apt regarding the polls showing that many Europeans regard Israel as a greater threat to world peace than Iran (or, more precisely, than Iran's dictatorship).


Monday, May 7, 2007

DOJ Won't Object to Immunity for Monica Goodling: DOJ's letter is here. Gonzales and McNulty had recused themselves, so the letter was written by the Inspector General and OPR.
Triple-parenting decision in Pennsylvania:

Over at National Review Online, Stanley Kurtz is touting a Pennsylvania state appellate court decision involving a lesbian couple and a sperm donor as the latest evidence that gay marriage will "dissolve the family" and lead to multi-partner marriage. Kurtz misunderstands both the substance and the import of the decision, which can be found here. In fact, if the decision relates to the controversy over gay marriage at all, it helps show the need for recognizing gay families in the law.

The case involves a lesbian couple who enlisted a male friend to act as a sperm donor, resulting in the births of two children to one of the women. Although the children were raised by the two women, the biological father visited and helped support them financially.

When the lesbian couple split, each woman sought primary custody of the children. The trial court found that both were good parents, but that the best interests of the children would be served by living primarily with the biological mother. The other woman was given partial custody and was ordered to pay child support. The biological father was allowed to have his two children one weekend per month but was not ordered to pay child support.

The appellate court upheld the decision to award primary custody to the biological mother. It also accepted the argument that the sperm-donor biological father should help with child support. It did so on the basis of court-created "equitable estoppel" principles since the state legislature has done nothing by statute to deal with these issues.

Obviously, the thorny issues raised by involving three people in children's lives are not unique to gay couples. Change the sex of one of the members of the unmarried couple and nothing in the legal analysis changes. The court cited as precedent a case in which a biological mother sought and obtained child support from a biological father, who impregnated her while she was still married to her husband. (pp. 14-15) Yet Kurtz says this decision is "a dramatic illustration of the potential for same-sex marriage and Vermont-style civil unions to deconstruct the family."

"Gay marriage" had nothing to do with the Pennsylvania decision. Gay and straight couples were using assisted reproduction long before gay marriage became a national issue. They will continue to do so regardless of what we decide about it. Neither gay marriage nor the "mere cultural and conceptual momentum of the gay marriage movement" is producing these arrangements. Instead, the opposite is true. The idea of gay marriage has arisen as an answer to the problems faced by existing gay families (including gay couples without children, gay couples with children by prior marriage or other heterosexual relationship, and gay couples with children by assisted reproduction). These families exist whether Kurtz likes it or not and whether we recognize gay marriage or not. The question is whether we will simplify their lives and consolidate their legal obligations and rights by letting them marry.

The lesbian couple raising these children obviously could not marry in Pennsylvania. But consider that marriage exists in part to help clarify legal lines of responsibility for children, to give everyone some assurance about who is responsible for them. If gay couples could marry, as straight couples under the same circumstances could, they might be more likely to push for exclusive parental rights because of the additional security marriage would give them. Sperm donors and surrogate mothers, for their part, would be more likely to surrender their parental rights to the couple since they would be reassured that the child would live in a family fully protected in the law.

While gay marriage alone won't eliminate scenarios in which three adults vie for children, just as marriage hasn't eliminated these difficulties for straight couples, it might make them less likely. It might help avoid legalized "triple-parenting" arrangements. The absence of gay marriage is opening the door wider to the very trends Kurtz decries.

Nor did the women's civil union have anything to do with the decision, despite what Kurtz claims. The court mentioned it exactly once — in its description of the factual background (p. 2). Their civil union was irrelevant to the equitable reasons why the biological father should pay child support (e.g., he had already voluntarily paid support, had given them clothing and toys, etc., pp. 13-14). And the non-custodial woman was a de facto parent with her own obligations to the children under state law regardless of their civil union (which Pennsylvania doesn't recognize) by virtue of her important role in raising and supporting them from birth. Nobody even disputed this.

Nor did either of the women seek to "marry" the sperm donor, much less to form a multiple-partner union with him. It's true that couples who involve a third person in their quest to have a child may want to include that person in the child's life, but that too is not unique to gay couples. Despite decades of this practice, there's no serious movement for polygamy in this country.

Legislatures are free to deal with this issue. As the court said in a passage Kurtz omits:

We recognize this is a matter which is better addressed by the legislature rather than the courts. However, in the absence of legislative mandates, the courts must construct a fair, workable and responsible basis for the protection of children, aside from whatever rights the adults may have vis a vis each other. (p. 16)

So far the Pennsylvania legislature has been interested only in proposals to "protect" marriage from gay families, not in dealing with the complications that arise from assisted reproduction. However a state decides gay marriage, it could deal with the legal issues arising from assisted reproduction by straight and gay couples in any number of ways. It could provide for triple-parenting, presume in favor of exclusive parental rights for the couple, presume in favor of some rights for the surrogate mother or sperm donor, or concoct some combination of these or other answers.

If Kurtz want to argue that assisted reproduction should be altogether prohibited, that's fine. If he wants to argue that sperm donations should remain anonymous to avoid personal entanglements between a couple and a sperm donor, that's fine too. But, in fairness, he should stop blaming these broad social trends primarily on the relatively small number of gay families. And he should stop using the difficulties gay couples often encounter because they can't marry as a reason to ban them from marriage.

UPDATE: Kurtz has now responded to this post. There's not much new there. He does cite a Canadian appeals case involving facts similar to the Pennsylvania case: two lesbian mothers, one sperm donor, and in the absence of legislative direction, the court rules that the non-biological mother raising the child has parental rights and obligations. But this case only further undermines Kurtz's original claim that "gay marriage" is leading to triple-parenting and multi-partner marriages. The Canadian lesbian couple was not married. They began their relationship in 1990, began planning for a child in 1999, and had their child by the sperm donor in 2001 — all before Canada or any other country got gay marriage. Gay marriage isn't even mentioned in the opinion, which relies on the the need to give the non-biological mother raising the child some legal standing in her child's life. Further, the couple did not seek to marry the sperm donor, and it's obvious from their relationship that they would not do so. The Canadian case, like the Pennsylvania case, is further evidence that these situations have preceded and have arisen independently of gay marriage — and will continue to do so. They have not led to even one multi-partner marriage and have not produced serious movements for polygamy.

Contrast Kurtz's emphasis on lesbian triple-parenting with a recent cover story in the Washington Post Magazine discussing a trend that began two decades ago among heterosexuals toward "blended families" resulting from open adoptions — where the birth mother is known. In light of the broad and long-standing social trends here, Kurtz's fixation on lesbians, and his insistence that gay marriage is a cause, are odd.

Kurtz protests that he's not just concerned with lesbian triple-parenting. Heterosexuals are also doing it, he acknowledges. Fine, that's my point. Yet his solution is to ban gay marriage, which is a non sequitur. If he's really serious about the issue, he should answer a simple question: Would he prohibit assisted reproduction involving third parties (sperm donors, surrogate mothers)?

Fight the Parking Power:

Several weeks, I got a $350 parking ticket from the UCLA parking people. The offense: Parking partly in a handicapped spot.

Except I wasn't parked partly in a handicapped spot. There were no handicapped spots in the row in which I was parked (a row the number of which was helpfully noted on the ticket).

Naturally, I contested the ticket, by sending a letter pointing out the error. Shortly afterwards, I got the response: They had reviewed the ticket and concluded that I was indeed guilty, but as a courtesy they were lowing the fee to $42.

Well, $42 isn't much to fight about, but I was annoyed; so I contested the ticket further, this time with photographs. (I had assumed none were needed, since I thought they'd have a map of the parking structure, with various kinds of spots marked — or, even if they needed to physically check the spots themselves, they'd prefer to do that instead of trusting any photographs I might send.) Yesterday, I got the response:

Based on the information presented in your appeal, most importantly the photographs you provided of the location where your vehicle was parked and the adjoining parking spaces[,] I am dismissing [the] citation ... and a refund ... will be processed and mailed to the addressed listed....

As a result of your investigation and the evidence you provided for your case, the UCLA Parking Enforcement Officers will be taking photographs for all violations as noted above....

As you might gather, I was delighted; mistakes happen, but it's great to see that some organizations are willing to own up to them. A few thoughts:

1. I do hope UCLA is systematically changing its policies to require that parking enforcers take photos: This should reduce the number of errors they make, and it should be more reliable than counting on the parkers' own photos. My case didn't require reliance on the challenger's candor, since the row number listed on the ticket proved my innocence; but say that there was a handicapped spot in that row, and I was partly parked in it — if I were dishonest, I could have just moved my car and then take a photo showing me firmly in my own spot. Only by taking their own photos can the parking people be fairly confident that the photo represents what was actually going on when the ticket was given.

2. Sometimes, you can fight the parking people and win. Don't just assume that, once an error is made, an organization will refuse to acknowledge it.

3. Some cynics might conclude that an average UCLA student — or a visitor — wouldn't get as good a response as a tenured faculty member would. I expect that, human nature being what it is, there is some such effect in most organizations (especially in cases where, unlike in this case, credibility questions are involved). But I have no reason to think that it's all-or-nothing: I'd think that organizations that are willing to admit error in a professor's case are at least not unlikely to do the same in others' cases. So take the time and effort to defend yourself, even when you're up against the dreaded Parking Establishment.

UPDATE: A reader asks whether I was parked across the line into an ordinary stall, and the parking person's error might have been giving me a ticket for misrecording this as parking partly in a handicapped stall. This might well have been the case; I don't remember for sure now, because that's not what the dispute was about, but it's certainly possible. (I sometimes park a bit across the line, if the cars are parked in a way to make that leave more space all around, but I never park partly or entirely in handicapped spots.)

If the ticket had been just for parking partly across the line, I obviously wouldn't have fought it if it were accurate, and I probably wouldn't have been able to prevail even if it were inaccurate. (If they had told me they were reducing the ticket to $42 because their records reflected that I was parked partly in a nonhandicapped spot, I probably would have taken their word on it; but none of their communications to me made any such claim.) In any case, I didn't discuss this possibility, because it didn't seem relevant to the questions of whether I should have been ticketed for $350 for parking partly in a handicapped spot, and whether it's worth fighting such tickets; but in case you find it relevant to evaluating the story (as the reader seemed to think), I thought I'd note it and apologize for the lack of completeness.

Presidential Approval Ratings for Different Presidents: Recent news on President Bush's poll numbers led me to google around to see what kind of approval ratings different Presidents had for the lengths of their Presidencies. I came across a very cool WSJ site from 2006 that features this chart: Presidential approval ratings from 1945 to the present. To focus on the ratings for individual Presidents, just click on the name on the left-hand column. For an updated chart for President Bush, see here.
[Peter Schuck, guest-blogging, May 7, 2007 at 9:50am] Trackbacks
Targeting in Social Programs: Avoiding Bad Bets, Removing Bad Apples

Good morning Volokh Co-Conspirators: To get the ball rolling, here is a recent Boston Globe op-ed about a new book by me and Kennedy School economist and decision theorist, Richard Zeckhauser. I'm looking forward to your comments. Peter Schuck

Good programs vs. bad apples

By Peter H. Schuck and Richard J. Zeckhauser | March 26, 2007

NOW THAT the Democrats control Congress, Americans will see more emphasis on social programs. But voters' reluctance to expand such programs, coupled with a budget deficit, will force legislators to do more with less. Fortunately, better targeting of resources could yield huge benefits. The question is: How?

Society rightly wants to improve the chances of people who have drawn a bad ticket in life's lottery ("bad draws"), yet the government often spends substantial resources on the wrong people. We need to avoid "bad bets" and remove the "bad apples," so our dollars go further and better serve those who will benefit the most. Bad bets are people who will not benefit as much from outside help as would others in equally bad or worse situations.

Pneumonia, once regarded as the "Old Man's Friend," offered the very frail a dignified death. Now we spend millions of dollars per year offering Alzheimer's patients an abysmal existence by keeping them alive on dialysis. Opinion leaders and litigation exacerbate the problem: A leading medical journal recently attacked one of our poorest states for proposing to give extra coverage to its Medicaid patients who join weight-loss or antismoking programs — a cost-effective way to improve health and extend life.

Bad apples are people in a program whose irresponsible, illegal, or immoral conduct harms the far more numerous good apples in the same program. Bad apples also harm the good ones by stigmatizing the group, making voters less willing to support programs to benefit it. The classic bad apple is the chronic disrupter in public housing or schools. Parochial schools, which remove bad apples more readily, outperform public schools in educating equally disadvantaged students at much lower cost.

Misguided laws make it harder than it should be for public schools to transfer these students. Homeless shelters and public housing authorities face worse difficulties. Only after years of litigation can they hope to evict even chronic rule-breakers.

Why do we keep spending on bad bets and bad apples? Healthcare is the most wasteful area for bad bets. Although Americans accept the need for triage medicine on the battlefield, we bridle at rationing healthcare, particularly where a patient is a bad bet through no fault of her own — say, because she suffers from a debilitating, treatment-resistant condition. Advocates for those who suffer from specific diseases fight hard to keep payers from cutting off resources. Critical features of our healthcare system — insurance coverage, professional ethics, doctors' "can-do" spirit, free-rider problems, special-interest groups — push government to place big chips on bad bets.

The bad-apples problem is also endemic. Because the causes of individuals' misconduct are often complex and perhaps beyond their control, society resists condemning them. Especially for youngsters, we do not want to "blame the victim," when the real culprit may be bad parenting, bad brain chemistry, or just bad luck. We try to address root causes so people won't become bad apples in the first place, but this may bear fruit too late to protect the good apples. Finally, our due-process values properly demand a high degree of accuracy before people are classified in disadvantageous ways.

These obstacles can be surmounted. Better information can often defeat fuzzy analysis and parochial interests. The Clinton-era welfare-reform law, which imposed work requirements and time limits for benefits, dealt with bad bets and bad apples among recipients. The public now has a much more favorable view of those still receiving assistance.

Also, Medicare now bases certain payments to providers on a patient's condition, not on the amount of treatment the patient receives. This change has significantly reduced hospital use in the last 90 days of life. In-hospital deaths have dropped sharply, while less costly home-care and other non-hospital treatments have risen, thus saving resources and providing a more humane process of death.

Political courage also helps. The New York City Housing Authority, for example, recently amended eviction procedures to remove disruptive tenants more quickly without sacrificing due process. The public schools should do the same, while also designing separate "second chance" programs for bad apples who should be removed from regular classes until their conduct improves.

To some, these calculations may seem coldly rational. But a compassionate society needs to target its resources carefully. We hope that the new Congress and other policymakers are listening

Wind Farm Proposed for Washingtonians' Beach Retreat:

The Washington Post reports on a proposal to build a wind farm off the coast of Delaware.

Two hundred towering windmills, each so tall that its blades would loom over the U.S. Capitol Dome, could be built in the Atlantic Ocean near one of Washingtonians' favorite beach retreats, under a plan being considered in Delaware.

The plan, which could create the first wind "farm" in waters along the East Coast, envisions a thicket of turbines offshore of either Rehoboth Beach or Bethany Beach, Del. As the blades are spun by ocean winds, designers say, the wind farm could provide enough power every year for 130,000 homes.

As the Delaware shore is where many Beltway-types spend their weekends during the summer, this could be a real test of Washington's willingness to promote — or even allow — alternative energy sources. Sea-based windfarms make eminent sense, yet they have faced regulatory obstacles to date.

Wind farms have sprouted all over the United States in the past decade. There are about 150, from California to the West Virginia highlands. But, so far, they have sprouted only on land.

Proposals to put turbines in the water have come less far — hung up, in some cases, by concerns that they will harm birds, disrupt shipping or become a blight on ocean vistas. One company that had planned wind farms off the Maryland and Virginia coasts, New York-based Winergy Power, says it has put those projects on hold while the federal government works on rules for issuing permits.

Closer to (my) home, there are proposals to erect wind turbines in Lake Erie. The engineering requirements are a bit different for a freshwater installation, but engineers with whom I've spoken are optimistic. Here again, however, regulatory obstacles may get in the way, as reported here.

National Park Fees to Increase:

If you're planning on visiting a National Park this summer, you may have to pay higher entrance fees. The National Park Service is planning to increase user fees at approximately one-third of National Parks over the next three years, according to this story.

The NPS has not done much to publicize the move, likely due to fears of public complaints. This is a shame, because increasing park user fees is a good policy move, particularly insofar as individual park units can retain the extra revenues for park maintenance and improvements. Too often, when money is allocated to Washington, D.C., it gets spent on new acquisitions and other priorities that only increase the operating costs of the system. Given the tremendous maintenance backlog throughout the system, it makes more sense to devote resources to taking care of the parks we already have -- and who better to pay for this maintenance than those who derive the primary benefit, i.e. park users like me.

Related Posts (on one page):

  1. National Park Fees to Increase:
  2. Private Groups "Monopolizing" Public Lands:
Peter Schuck, Guest-Blogging:

I'm delighted to say that Prof. Peter H. Schuck of Yale Law School will be blogging here this week. Prof. Schuck specializes in torts, immigration law and policy, the management of diversity in America, and administrative law; he is the author of many works, including Targeting in Social Programs: Avoiding Bad Bets, Removing Bad Apples (Brookings Institution Press, 2006) (with Richard J. Zeckhauser), Understanding America (Public Affairs, forthcoming 2008) (co-editor with James Q. Wilson), Meditations of a Militant Moderate: Cool Views on Hot Topics (Rowman & Littlefield, 2006), Foundations of Administrative Law (2d ed., Foundation Press, 2004), and Diversity in America: Keeping Government at a Safe Distance (Harvard University Press, 2003).

Prof. Schuck will post mostly about Avoiding Bad Bets, Removing Bad Apples, which analyzes two sources of poor targeting in social programs that seek to benefit "bad draws" — people who have drawn a bad hand in life and need government assistance. Two kinds of bad draws are particularly noteworthy -- bad bets and bad apples. Bad bets are people who will not benefit much from the resources compared with other, better bets; health care is a major category of bad bets because, a la Willie Sutton, that's where the money is. Bad apples are people whose illegal, immoral, irresponsible, or chronically disruptive conduct prevents others in the program from enjoying the program's benefits (whether fellow public school classmates, public housing tenants, or homeless shelter residents).

Bradley Schlozman and Hiring for Career Spots in the DOJ Civil Rights Division: From McClatchy, via Josh Marshall:
  Congressional investigators are beginning to focus on accusations that a top civil rights official at the Justice Department illegally hired lawyers based on their political affiliations, especially for sensitive voting rights jobs.
  Two former department lawyers told McClatchy Newspapers that Bradley Schlozman, a senior civil rights official, told them in early 2005, after spotting mention of their Republican affiliations on their job applications, to delete those references and resubmit their resumes. Both attorneys were hired.
  One of them, Ty Clevenger, . . . said his resume stated that he was a member of the conservative Federalist Society and the Texas chapter of the Republican National Lawyers Association. The other applicant's resume cited work on President Bush's 2000 campaign, said the attorney, who insisted upon anonymity for fear of retaliation.
  They said Schlozman directed them to drop the political references and resubmit the resumes in what they believed were an effort to hide those conservative affiliations.
  Clevenger also recalled once passing on to Schlozman the name of a friend from Stanford as a possible hire.
  "Schlozman called me up and asked me something to the effect of, `Is he one of us?'" Clevenger said. "He wanted to know what the guy's partisan credentials were."

Sunday, May 6, 2007

The Ramifications of Massachusetts v. EPA:

Monday afternoon I will be participating in a panel at the American Enterprise Institute in Washington, D.C., "Has the Supreme Court Seen Green? The Ramifications of Mass. v. EPA." Other participants will include Lisa Heinzerling (Georgetown), David Schoenbrod (New York Law School), Joel Schwartz (AEI), Mark Moller (Cato), and former Deputy AAG for Natural Resource and Environment Jeffrey Clark (Kirkland & Ellis). Rumor has it C-Span will be there.

UPDATE: Video and audio of the event are available here.

Roger Kimball on Hayek:

Roger Kimball has an interesting and perceptive look at Hayek, inspired by the release of the new scholarly edition of The Road to Serfdom, edited by Bruce Caldwell:

Hayek’s fundamental insight, enlarging Smith’s thought, is that the spontaneous order created and maintained by competitive market forces leads to greater prosperity than a planned economy.

The sentimentalist cannot wrap his mind, or his heart, around that datum. He cannot understand why we shouldn’t favor “co- operation” (a pleasing-sounding arrangement) over “competition” (much harsher), since in any competition there are losers, which is bad, and winners, which may be even worse. Socialism is a version of sentimentality.


The socialist, the sentimentalist, cannot understand why, if people have been able to “generate some system of rules coordinating their efforts,” they cannot also consciously “design an even better and more gratifying system.” Central to Hayek’s teaching is the unyielding fact that human ingenuity is limited, that the elasticity of freedom requires the agency of forces beyond our supervision, that, finally, the ambitions of socialism are an expression of rationalistic hubris. A spontaneous order generated by market forces may be as beneficial to humanity as you like; it may have greatly extended life and produced wealth so staggering that, only a few generations ago, it was unimaginable. Still, it is not perfect. The poor are still with us. Not every social problem has been solved. In the end, though, the really galling thing about the spontaneous order that free markets produce is not its imperfection but its spontaneity: the fact that it is a creation not our own. It transcends the conscious direction of human will and is therefore an affront to human pride.

Those interested in my latest take on Hayek (which reasons along similar lines) can download "Posner, Hayek, and the Economic Analysis of Law" here.


Oops, a commenter noted that I forgot to link Kimball's article, which I have now corrected.

Eric Dolphy Quintet Plays "GW": Eric Dolphy isn't for everyone. He was a fiercely original musician who helped lead jazz's avant-garde in the early 1960s before his premature death in 1964. The first time you hear Dolphy, you'll probably think, "um, that's just weird." But Dolphy is an acquired taste that is very much worth acquiring, as he was one of the most inventive musicians in jazz. Here's Dolphy leading a quintet with Booker Little on trumpet in Germany in 1961, playing the tune "GW" from the album Outward Bound:
(While you're at it, don't miss the solo bass clarinet performance of God Bless the Child from the same concert.)

  If you want to here more Eric Dolphy, there are lots of possibilities, as he was widely recorded in the 1960-64 window. If you want to start with some of his more accessible work, you might begin with Dolphy's playing as a sideman (alto and flute) on John Coltrane's Ole in 1961. Dolphy's masterpiece is Out to Lunch!, recorded just four months before he died. It's an incredible performance, but it's also one of his more challenging works; the music is amazing once you get used to it, but that may take some time.
Scholars and the Second Amendment: Jonathan links to Adam Liptak's story today in the New York Times on the Second Amendment and the role playing by "liberal" academics in attaining acceptance for the individual rights reading. He also links to Jack Balkin's comments diminishing the role of academics and crediting the popular constitutionalism of the gun rights political movement. There's more than enough credit (or blame) to go around.

First, I think there is no question that the acceptance of the individual rights interpretation by Sandy Levinson in his 1989 Yale Law Journal article, The Embarrassing Second Amendment, followed by Bill Van Alstyne, Akhil Amar and Laurence Tribe thereafter played an enormous role in legitimating the individual rights position and undercutting the ad hominems used by gun control folks that the individual rights position was a figment of the NRA's heated imagination. (For example, see the notorious law review article, Gun Crazy, which initially induced me to write a response that became my first Second Amendment article in the Emory Law Journal). In this sense, I agree with the thrust of the Times column that the endorsement of the individual rights position by these well respected "liberal" scholars was crucial to the growth in acceptance of this view. And it forced those opposing the individual rights position to step forward with reasoned arguments, as they have in another important part of the story that the Times omits (more on this below).

Second, I think Jack Balkin is perfectly right that the sustained and effective political pressure on behalf of gun rights has been more important than academic research, especially in preserving that freedom in the absence of any constitutional protection. Political activity also provided the impetus for the Democrats' retreat from challenging basic gun rights (at least rhetorically) after the 2000 election. Indeed, so powerful has been the political protection of gun rights that one wonders whether they would be weakened rather than strengthened if and when the Supreme Court affirms an individual rights reading. (See below on this also).

What the story leaves out, of course, are the prodigious efforts of those "libertarian" and "conservative" constitutional scholars who did much of the heavy lifting when it comes to the original meaning of the Second Amendment AND the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. And this scholarly effort was pioneered by nonacademics.

No one did more to revive the individual rights position than gun rights activist Don Kates. Indeed, Levinson credits Kates' influential 1983 Michigan Law Review article, Handgun Prohibition and the Original Meaning of the Second Amendment, with changing his mind about the Amendment. Another prolific nonacademic author and litigator is Steve Halbrook. In addition to his Second Amendment scholarship, Halbrook's path-breaking work on the Fourteenth Amendment, Freedman, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876, has yet to be answered, to my knowledge, by any scholar on the other side. (It would not surprise me if I missed something here as it has become hard to keep up with the burgeoning literature in this field.) Indeed, it was anticipated by "liberal" constitutional scholar, Michael Kent Curtis in his important 1986 book, No State Shall Abridge. Another early nonacademic scholar was David Hardy.

The writings by these nonacademic are as scholarly as those by any academic I know, and predated by several years the involvement of academics. A bit later, very important work was done by my nonacademic co-blogger Dave Koppel. More recently, Clayton Cramer played an important role in debunking the Michael Bellisiles fraud.

But the research of professors such as Joyce Lee Malcolm, Glenn Reynolds, Robert Cottrol, Eugene Volokh, Brannon Denning, and many others was absolutely crucial to whatever success the individual rights position has enjoyed.

(As you will tell from my linking, much of the scholarship on both sides of this debate can be found here. I apologize in advance to the many writers who have contributed importantly to the scholarly literature whom I have failed to mention.)

I was a relative latecomer to this issue with my 1996 Emory Law Journal article, Under Fire: The New Consensus on the Second Amendment, co-authored with Don Kates. This article's reference to the "new consensus" on the Second Amendment predates the recent scholarly pushback against the individual rights position, thereby negating the existence today of any scholarly consensus. My most recent 2004 piece in the Texas Law Review, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, replies to this reformulation of the pro-gun-control position as an individual right conditioned on participation in an organized militia.

This last point highlights the other significant development omitted by the Times: the concerted scholarly response to the individual right scholars, most of which is centered around the 2000 Symposium on the Second Amendment: Fresh Looks, in the Chicago-Kent Law Review, and the Second Amendment Research Center at Ohio State run by Saul Cornell.

In the 2002 case of Silveira v. Lockyer, Judge Stephen Reinhardt relied heavily on this scholarship in the first attempt at a truly "originalist" opinion by a federal court of appeals to reject an individual rights interpretation. (Judge Reinhardt also relied on the now-discredited work of Michael Bellesiles, and the opinion now in the Federal Reporter is revised to omit these references. The Ninth Circuit still has the original version online here.) Silveira was decided in the wake of the 2001 Emerson decision in the Fifth Circuit that had endorsed an individual rights position on originalist grounds, and relied heavily on the scholarship noted above.

When Don and I claimed the existence of a "scholarly consensus," we defined this carefully as a consensus of constitutional scholars who had written on the Second Amendment (as opposed to most scholars who taught constitutional law but did no work on this subject). Thanks to this recent pushback, there is no longer a scholarly consensus and a "liberal" Supreme Court Justice could well follow Judge Rienhardt's lead in rejecting the individual rights interpretation.

Judge Reinhardt's opinion highlights a generally neglected facet of this debate. It is conducted almost exclusively on originalist grounds, even by nonoriginalists such as Judge Reinhardt. While all who criticize the individual rights position on originalist grounds are themselves nonoriginalists, Michael Dorf is a rare writer on the Second Amendment who expressly defends a nonoriginalist approach to the issue.

One question this raises for me is the role that has been played by the debate over the meaning of the Second Amendment in the rise of originalist interpretation. Indeed, in my case, I was drawn to originalism in important part by my own work on the original meaning of the Ninth and Second Amendments that I had began writing well before I was an originalist myself. I started to wonder why I cared so much about original meaning while rejecting originalism as a method of interpretation.

Several other interesting questions are raised by the remarkable political success of the gun rights movement noted by Jack Balkin: Would gun owners be better off or worse off if the Supreme Court does recognize an individual right to arms? Or would the federal courts then consistently uphold gun laws, as the Emerson court did, thereby weakening the right in practice? And would the supposed constitutional "protection" of gun rights also weaken the impetus for the very political efforts that have actually protected gun rights? Would gun control enthusiasts be shrewd to embrace the individual rights interpretation of the Second Amendment as away of taking some of the political steam out of those who oppose most gun controls?

To be clear, I strongly support the constitutional protection of gun rights under the Second and Fourteenth Amendments. But I also acknowledge that, while ruling out confiscation and prohibition, the protection of these rights allows "reasonable" regulation in the same manner as the First Amendment does not rule out reasonable time, place, and manner regulations of speech and assembly. What an individual rights reading of the Second Amendment does require is meaningful scrutiny of any proposed regulation that purports to be a safety measure but is really designed to place an undue burden on the exercise of a fundamental rights, especially those that are not narrowly tailored to their purported public safety rationales. (It also requires an appropriate interpretation of the "police power" of states by which to gauge the appropriate purpose of any gun law; that is, the protection of the rights of others.) Yet the allegedly strong constitutional protection of the freedom of speech did not stop the Supreme Court from upholding shocking restrictions of the political speech that is at the heart of the First Amendment in the name of "reasonable campaign finance reform."

Would the same thing happen to gun rights, while weakening political opposition to unreasonable gun controls? Or would the constitutional protection of gun rights increase the legitimacy of the gun rights position and thereby enhance its political power?

Because I do not think we can ever know the answer to these questions in advance, I favor the judicial protection of all constitutional liberties and let the resultant political chips fall where they may.

Related Posts (on one page):

  1. Scholars and the Second Amendment:
  2. How Liberals Saved the Second Amendment:
New Climate Blog:

Nature Reports Climate Change has launched a new climate blog, Climate Feedback, with an interesting roster of contributors.

Happy Birthday How Appealing!

Howard Bashman launched How Appealing five years ago today.

Are American Troops Unethical?

Yesterday's Washington Post reported on a survey of U.S. Army troops that found a significant percentage of American soldiers support the use of torture or tolerate abuse of civilians. "Less than half of Soldiers and Marines believed that non-combatants should be treated with dignity and respect," according to the report.

Interpretations of the results differ. Human rights advocates say the survey gives credibility to claims of abuses. Military officials view the results differently.

Maj. Gen. Gale S. Pollock, the acting Army surgeon general, cast the report as positive news. "What it speaks to is the leadership that the military is providing, because they're not acting on those thoughts," she said. "They're not torturing the people."

But human rights activists said the report lends support to their view that the abuse of Iraqi civilians by U.S. military personnel was not isolated to some bad apples at Abu Ghraib and a few other detention facilities but instead is more widespread. "These are distressing results," said Steven R. Shapiro, national legal director for the American Civil Liberties Union. "They highlight a failure to adequately train and supervise our soldiers."

For more thoughts on this story, check out my colleague Amos Guiora on AIDP Blog and Richard Reeb at The Remedy, and don't miss this comment by Ed Morrissey at Captain's Quarters.

How Liberals Saved the Second Amendment:

Adam Liptak has an interesting article in today's NYT on how the "individual rights" interpretation of the Second Amendment became the dominant view.

There used to be an almost complete scholarly and judicial consensus that the Second Amendment protects only a collective right of the states to maintain militias. That consensus no longer exists — thanks largely to the work over the last 20 years of several leading liberal law professors, who have come to embrace the view that the Second Amendment protects an individual right to own guns.

In those two decades, breakneck speed by the standards of constitutional law, they have helped to reshape the debate over gun rights in the United States. Their work culminated in the March decision, Parker v. District of Columbia, and it will doubtless play a major role should the case reach the United States Supreme Court.

UPDATE: Jack Balkin has some thoughts here.

UPDATE: Michael Dorf expresses some skepticism here.

Related Posts (on one page):

  1. Scholars and the Second Amendment:
  2. How Liberals Saved the Second Amendment:
Sunday Song Lyric: There are some musical artists that you like without knowing it. You've heard their songs, but did not know it was them. So it was for me and Elvis Costello. I didn't own any of his stuff in the early 1980s, but I certainly should have given the other bands I was listening to at the close of the 1970s (this was my favorite album in 1980), and the number of his songs that I already liked. It was not until much, much later that I realized how much I acutally liked his stuff.

Costello had an interesting, and notorious, American TV debut. In December 1977, Elvis Costello and the Attractions were invited to play on Saturday Night Live as last-minute fill-ins for the Sex Pistols (who had visa problems or some such). Costello wanted to play "Radio, Radio," off of This Year's Model. The song made a statement and included a Pistols reference. The SNL folks said no, however, as they wanted Elvis to play a single in anticipation of the U.S. release of his first two albums. Well, Elvis started out playing "Less than Zero," but only a few seconds into the song he stopped the band and called for "Radio, Radio." Word is this resulted in a "ban" from SNL for over a decade thereafter. Here's the video, and here is a taste of the lyrics:

Some of my friends sit around every evening
and they worry about the times ahead
But everybody else is overwhelmed by indifference
and the promise of an early bed
You either shut up or get cut up;
they don't wanna hear about it.
It's only inches on the reel-to-reel.
And the radio is in the hands of such a lot of fools
tryin' to anaesthetise the way that you feel