...the average profits per partner in the top 50, top 100, and top 200 U.S. law firms in 2004, respectively, were $1.26, $1.01 and $0.83 million. These averages are the averages of the average profit per partner for each firm. The medians of the averages are lower, at $1.08, $0.86 and $0.67 million. These profits accrued to, respectively, 11,034, 17,861, and 26,755 partners. Average profits per partner exceed $2 million for 9 firms; they are at least $0.5 million for 93 of the top 100 firms, and 152 of the top 200 firms...Based on these distributions, we estimate that 14,351 of the 17,861 partners in the Am Law 100 earned more than $0.48 million in 2004...It also is worth pointing out that the 26,000 plus equity partners at Am Law 200 firms earn a total of roughly $22 billion (at $0.83 million per partner). This is the same order of magnitude as the total pay to non-financial top executives, investment banking MDs, hedge fund investors, and PE and VC
It is no surprise to hear that partner pay is going up in real terms:
...lawyers have experienced a large real increase in pay over the last 10 and 20 years. In 1984, the average profit per partner at the top 50 firms was $0.309 million or
$0.498 million in $2004. By 1994, the average profit per partner had increased to $0.531 million or $0.636 in $2004. And by 2004, the average profit per partner at the top 50 firms had increased to $1.260 million.
More Good Summer TV:
I just finished watching the new series Mad Men on AMC — a show about advertising executives on Madison Avenue in 1960. It is well worth trying. Well written, gorgeously photographed, paced and scored in the style of cinema rather than TV. No doubt, the American Movie Channel required this for their first network series. As the description from the website says, it is from the executive producer and writer of The Sopranos and it shows. One more thing. Don't expect pap. It is obviously going to explore the issues of race, sexism, and antisemitism that was simmering just beneath the surface in 1960. I hope the show does not get too preachy — it has that potential, but the first episode at least did not succumb. Oh yes, unlike Sharon Gless in Burn Notice, the whole cast inhales and exhales copious amount of smoke. It is about a subject other than cops and lawyers, and it is going to be very sexy.
Here is the description:
What you are, what you want, what you love doesn't matter. It's all about how you sell it. From AMC and the Emmy® Award-winning executive producer and writer of "The Sopranos" Matthew Weiner, comes MAD MEN, a provocative new primetime drama about how to sell the truth. Set in 1960 New York, the daring new series is about the lives of the ruthlessly competitive men and women of Madison Avenue advertising, an ego-driven world where key players make an art of the sell while their private world gets sold. The 13-episode, one-hour original program produced by Lionsgate premieres Thursday, July 19 at 10 PM | 9C.
Created, executive produced and written by Weiner, the drama series stars Jon Hamm (We Were Soldiers), Elisabeth Moss ("The West Wing"), Vincent Kartheiser ("Angel"), January Jones (We Are Marshall) and Christina Hendricks ("Kevin Hill"), and guest stars John Slattery ("Desperate Housewives"), Rosemarie DeWitt ("Standoff"), Talia Balsam (All the Kings Men) and legendary stage and screen star Robert Morse ("How to Succeed in Business Without Really Trying"). Michael Gladis ("Third Watch"), Aaron Staton ("The Nanny Diaries"), Rich Sommer ("The Devil Wears Prada"), Maggie Siff ("Michael Clayton") and Bryan Batt ("La Cage Aux Folles") round out the cast.
The Setting: In 1960, advertising agencies were an all-powerful influence on the masses. Personal and professional manipulation and sexual exploits defined the workplace and closed the deals. The high profile Sterling Cooper Advertising Agency created advertising campaigns – from cigarettes to political candidates — better than anyone. It was a time of great ferment. Women had barely begun to come into their own. Librium and birth control were on the move. Ethics in the workplace, smoke-free environments, sexual harassment and ethnic diversity were workshops of the future.
The Premise: The series depicts the sexual exploits and social mores of this most innovative yet ruthless profession, while taking an unflinching look at the ad-men who shaped the hopes and dreams of Americans on a daily basis.
The Players: The series revolves around the conflicted world of Don Draper (Hamm), the biggest ad man (and ladies man) in the business, and his colleagues at the Sterling Cooper Advertising Agency. As Don makes the plays in the boardroom and the bedroom, he struggles to stay a step ahead of the rapidly changing times and the young executives nipping at his heels. The series also depicts authentically the roles of men and women in this era while exploring the true human nature beneath the guise of 1960 traditional family values.
You can catch the premier episode several times between now and Thursday. Here's the schedule. And you can watch a sneak preview of premier episode here, but it does not convey fully how the show feels as it unfolds.
PS: I am almost caught up with my Tivo'd episodes of Rescue Me. It is off the scale this season. I really don't know how writers can write like that. And it takes real actors to deliver these lines so naturally, like its real. Here's a little treat for fans of the show, which looks like it was made with scenes from season one (but if you have not seen the show, you can't judge it from this video, which selects "action" clips, not the dialog that makes this show great):
Update: Rewatching the video I see scenes from other seasons. And there was just not that amount of fisticuffs in one season.
6. My election will increase the appeal of the Red Sox in the growing Russian Jewish immigrant demographic, not to mention the libertarian, atheist, legal, and nerd sectors. No other candidate can appeal to all these groups at once, I'm willing to bet.
7. Red Sox Nation needs a president who will strike fear into the hearts of the Emperor Steinbrenner and his minions. And, as my mother once put it, "people are afraid of lawyers."
How can someone say, "She Says That as If It's a Bad Thing"?
In English, we say, "She says that as if it were a bad thing."
"As if" should alert the writer that a "contrary-to-fact" construction, requiring the subjunctive mood, will follow.
A few thoughts in response.
1. In English we generally (though I acknowledge not always) say "we say" to mean "we say." The commenter seems to mean by it "we should say according to the rules that I think we should follow." But looking at what we really say (for instance, by using google) reveals that English speakers use both "say that as if it is a bad thing" and "say that as if it were a bad thing" — and apparently use the former more often than the latter.
So say what you will about what we should be saying, but don't dress it up in the supposedly objective garb of what we actually say and don't say. And, yes, this is a prescription, but one with a sound semantic basis: My claim is that "we say" generally comes across to readers as a descriptive claim, and it's therefore confusing and misleading to use it when one can at most support a prescriptive claim.
2. Even if the commenter is talking about what should be said under the "rules" of the language, I'm not sure that he would be right. To begin with, the subjunctive is largely dying, as various usage dictionaries (such as Merriam-Webster's Webster's Dictionary of English Usage) attest. Even if we take a prescriptivist approach, we would have to identify some reason to think that it is still obligatory, and I don't know of such a reason. Surely even hard-core prescriptivists must accept that at some point their prescriptions stop being obligatory — or else we'd have to keep using "thou" / "thee" / "thy" for the second-person singular familiar.
3. On top of that, I'm actually deliberately not trying to make a claim about whether "[the Boston Tea Party] is a bad thing" is "contrary-to-fact." My point is precisely that this view of the Boston Tea Party may well be perceived as a sound evaluation in some places (chiefly east of the Atlantic) and as unsound in others (chiefly west). Even when the subjunctive was more common than it is now, I'm not sure that the subjunctive would have been used in such contexts. Perhaps it would have been, but again that requires evidence and not just assertion.
But in any event, if I can just get prescriptivists to carefully say "we should say" rather than "we say" (when "we should say" is what they really mean), I'd be happy.
From a Reuters article about the Harry Potter publisher's reaction to book reviews published before the book officially went on sale:
A Bloomsbury spokeswoman called the New York Times review "very sad", adding that there was only one day to wait until the official release in book stores around the world. Twelve million copies of the book have been printed for the U.S. market alone.
She likened the events in the United States to the Boston Tea Party, a 1773 protest by American colonists against Britain....
Tip: That doesn't sound as pejorative on our side of the pond as it might on yours.
In any case, here's the Times' substantive response:
"Our feeling is that once a book is offered up for sale at any public, retail outlet, and we purchase a copy legally and openly, we are free to review it," a [New York Times] spokeswoman said.
"We came across a copy of 'Harry Potter and the Deathly Hallows' at a store in New York City and we bought it...."
Northwestern University Law Professor Andrew Koppelman has an insightful post on the role of religion in political discourse. To avoid confusion, it is important to emphasize that neither Andy nor I are proposing government censorship of speech that violates the norm we advocate. The principles we embrace should be promoted through social norms, not government coercion:
A noteworthy development in liberal political theory over the past 30 years or so has been the claim, by such distinguished thinkers as John Rawls, Bruce Ackerman, Ronald Dworkin, Thomas Nagel, Amy Gutmann, Dennis Thompson, Stephen Macedo, David Richards, Charles Larmore, Samuel Freeman, Richard Rorty, and Robert Audi, that in a liberal democracy, political discourse must rely on arguments that are not sectarian and can be assessed in terms of commitments that all citizens can share....
This claim has elicited a bitter response from religious thinkers, who have argued that this deprives politics of important moral resources and denies them the right to state what they believe. This response, which has not slowed the production of these liberal theories of public discourse, gives rise to a puzzle: why did the liberals converge on and keep producing new articulations of a proposal, in the name of social unity and comity, that was so widely received as an insult? ....
I suspect that the answer has something to do with norms of civility that developed in the United States throughout the twentieth century. It is now well settled that it is impolite to challenge someone else’s religious beliefs. Religion is private. Even if you think your neighbor believes really stupid stuff, it’s not nice to say so.....
This formula works only so long as neither of you offers a religious argument that is supposed to govern something that will affect both of you. Suppose, for example, that you propose that homosexual sex be criminalized because it’s an abomination before God. How am I to respond? If I disagree, my obvious answer is to say that your religious beliefs are wrong. By hypothesis, that is what I really think. But it’s impolite to say that. So I have to twist around to find some way to say that your views ought not to govern political decisions, without having to say that they’re false. These political theorists have been doing the twist.
Their strategy has been a disaster, because it has produced the opposite of what they have hoped. A doctrine grounded in universal respect has left a lot of actual citizens feeling profoundly insulted. This suggests that the norm of politeness needs to be revisited. As soon as A invokes religious reasons for his political position, then it has to be OK for B to challenge those reasons.
I agree with Andy's argument. It is reasonable to have a social norm against criticizing others' religious beliefs in political discourse (though not necessarily in nonpolitical debates about the validity of religion itself). However, that norm must be suspended in cases where one side to a political debate is using religious claims to defend its public policy positions. Thus, for example, Mitt Romney's Mormonism should not be an issue in the presidential campaign unless he or his supporters try to use Mormon doctrine to justify his policy ideas or aspirations to office.
It is true that criticisms of religion-based public policy arguments can sometimes descend into bigotry. But the only alternatives are either to give religious policy arguments an exemption from the scrutiny received by secular ones, or to exclude religion-based arguments from public debate entirely, as the liberal theorists Andy rightly criticizes seek to do.
How does this relate to my own earlier-stated views on prejudice against atheist candidates for public office? Very simply, atheist candidates should be evaluated on the same criteria as theistic ones. If an atheist candidate and his supporters offer purely nonreligious arguments for their positions, then his or her atheism should not be an issue, any more than Romney's Mormonism, or JFK's Catholicism. If, on the other hand, the atheist candidate claims that atheism provides justification for his policy ideas, then that atheism becomes a proper subject for public scrutiny. In my view, of course, atheism does not in and of itself lead to any determinate conclusions on public policy issues. One can be a liberal atheist, a conservative atheist, a libertarian atheist, and so on, without in any way contradicting atheism itself. However, atheists who claim otherwise should be treated in public discourse the same way as theists who make similar arguments based on their religious beliefs. A claim that atheism strengthens the case for Policy X can legitimately be met with the response that atheism is itself incorrect.
Content-Based Speech Restrictions vs. Content-Neutral Speech Restrictions:
Content-based speech restrictions imposed by the government as sovereign are almost always unconstitutional, unless the speech fits within one of the First Amendment exceptions. Content-neutral restrictions are often constitutional.
I have argued in earlier posts that the Court has been right to treat generally applicable laws that are content-based as applied much like it treats content-based restrictions generally. And I think the Court should treat generally applicable laws that are content-neutral as applied much like it treats content-neutral restrictions generally. The Court probably would not, and should not, have intervened if Hustler had inflicted emotional distress on Falwell by using loud bullhorns outside Falwell’s house. Nor would the Court have found a First Amendment violation if the NAACP had been sued for organizing a demonstration that blocked the entrance to Claiborne Hardware’s door, or if Schenck had been prosecuted for interfering with the draft by blocking a draft board office.
But why? The law, and thus the lawmakers’ motivation for enacting the law, would be the same in these hypotheticals as in the real cases. The law’s effect would be the same: The law as applied would restrict speech. What then is left to explain the difference? And if indeed the lawmakers’ motivation doesn’t have the importance that some assign to it, then what is the difference even between facially content-based laws and facially content-neutral ones? There are, I think, two main answers to these questions — a conceptual one and a pragmatic one.
The Conceptual Distinction: Under nearly every theory of free speech, the right to free speech is at its core the right to communicate — to persuade and to inform people through the content of one’s message. The right must also generally include in considerable measure the right to offend people through that content, since much speech that persuades some people also offends others. (There might be some limits on this right to offend, for instance if (1) the speaker is communicating to someone who has already said that he doesn’t want to hear the message, and (2) the speaker can stop speaking to this unwilling listener, while still continuing to try to persuade or inform other potentially willing listeners.)
Persuading and informing people may certainly cause harm; the listeners might be persuaded to do harmful things. But the premise of modern First Amendment law is that the government generally may not (with a few narrow exceptions) punish speech because of a fear, even a justified fear, that people will make the wrong decisions based on that speech: “[T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments.... [I]f there be any danger that the people cannot evaluate the information and arguments advanced by [speakers], it is a danger contemplated by the Framers of the First Amendment.” Thus, punishing speech because its content persuades, informs, or offends especially conflicts with the free speech guarantee, more so than punishing speech for reasons unrelated to its potential persuasive, informative, or offensive effect.
Practical Effects — Content-Based Restrictions as Likely Greater Burdens on Speech: I suspect that the Court’s skepticism about content-based laws (whether facially content-based or content-based as applied) flows in large part from this conceptual distinction. But the conceptual argument is also reinforced by a pragmatic one: Allowing content-based restrictions (whether facially content-based or content-based as applied) is likely to burden speech more than allowing content-neutral restrictions.
(Note that I’ll treat the term “content-based restrictions” as roughly interchangeable with the phrase “restrictions triggered by the communicative effects of speech,” and the term “content-neutral restrictions” as roughly interchangeable with the phrase “restrictions triggered by the noncommunicative effects of speech.” Also, some commentators have also argued that content-based restrictions are more dangerous than content-neutral restrictions, because content-based restrictions often distort public debate by burdening one side of a debate while allowing another to be heard free of any such burden, but others have disagreed; my analysis neither relies on nor rejects the distortion argument — I focus on whether a restriction is likely to substantially interfere (as opposed to only modestly interfere) with the expression of certain facts or viewpoints.)
To begin with, a typical law aimed at noncommunicative effects is unlikely to excessively inhibit the communication of some viewpoint or fact, because many different media would remain available to the speakers. For instance, even a total ban on leafleting, justified by the desire to prevent litter, would still leave people free to communicate their views by the many media that don’t create litter — by displaying signs, using radio broadcasts, advertising in newspapers, and so on.
I think the leafleting ban would indeed interfere with public debate too much, but it can’t even come close to driving certain views entirely from public debate. Moreover, because the content-neutral law can potentially apply to a wide range of speakers, its scope will likely be limited by political forces. Thus, the most severe hypothetical content-neutral restrictions — for instance, a ban on printing, justified by the environmental harms caused by the process of making paper — are sure to remain just hypotheticals: They are politically implausible precisely because they burden so much speech.
On the other hand, a content-based restriction, whether facially content-based or content-based as applied, can outlaw most expression of certain facts or opinions. If a law, such as the laws in Schenck v. United States or NAACP v. Claiborne Hardware Co., bans any conduct that may cause a certain harm, and persuading people to act in certain ways can cause that harm, then any viewpoints that have the potential for such persuasion — the draft is evil, blacks should boycott white-owned businesses — would largely be prohibited. Because the law focuses either on the content of the speech or on the harm that the speech causes, it can block the speech in all media. And because it’s limited to a narrow range of speech, it may face less political opposition than broader bans might provoke.
Even narrower content-based restrictions, such as the laws involved in Cohen v. California or Hustler Magazine v. Falwell, can be quite burdensome. True, such restrictions only limit the particular words (in Cohen) or the level of vitriol (in Hustler) a speaker can use, and don’t ban the expression of a particular fact or idea. But as Justice Harlan rightly concluded in Cohen, even such restrictions can seriously interfere with people’s ability to express the “otherwise inexpressible emotions” that only certain kinds of words can effectively capture. Harsh contempt for a policy (the draft) or a person (Jerry Falwell) is itself a viewpoint that is subtly different from mild-mannered condemnation, and prohibitions on harsh language seriously interfere with the ability to convey this viewpoint.
[Coming Monday: Why can't this be dealt with using an "ample alternative channels" inquiry, under which restrictions — both content-neutral and content-based — would be constitutional if they leave open ample alternative channels for expressing the speaker's ideas, and thus wouldn't impose much of a burden on the speaker's speech? Content-neutral restrictions that leave open ample alternative channels are indeed generally constitutional; not so for content-based restrictions. Does this distinction make sense, or should the rule for content-neutral restrictions also be applied to content-based ones?]
If you are thinking about moving in the foreseeable future, I urge you to bookmark Movingscam.com. Founded by the victim of a moving scam, the site warns readers away from known scammers, provides tips regarding how to find a reliable mover, has a list of reliable movers based on reader feedback, and has a discussion forum where you can ask questions. I've moved several times in the last few years (thanks to visits at Michigan and Brooklyn, to which I brought my family) and found the site invaluable, both with regard to advice provided, and also to correct the power imbalance when a representative of an otherwise reputable mover jacked up the price at the last minute (no reputable mover wants a bad review on movingscam, and the price went back to what was promised).
[1.] The Committee on Non-Governmental Organizations (NGOs), acting on a complaint by China, this afternoon withdrew the general consultative status of Liberal International, a United Kingdom-based body that had won that status in 1995.
By a vote of 13 in favour to 3 against (Israel, United Kingdom, United States), with 2 abstentions (Peru and Romania), the Committee stripped Liberal International of its consultative status with the Economic and Social Council on the grounds that the organization had severely abused that status on 4 March by assisting a ranking official from China’s Province of Taiwan to gain access to a meeting of the Human Rights Council and advocate Taiwan’s membership in the World Health Organization (WHO)...
[Text moved:] The Committee resumed its consideration of a complaint in which the representative of China requested the withdrawal of consultative status from Liberal International, reiterating her delegation’s statement earlier in the week that the NGO, in promoting the secession of China’s Province of Taiwan, had failed to respect that country’s sovereignty and territorial integrity. The NGO’s behaviour was, thus, “severely” contrary to the principles of the United Nations Charter. The Committee had reviewed the case during the past week and it was now time to take action. Any delay would only indulge abuses of such nature.
As the representatives of Cuba, Sudan, Egypt, Angola, Burundi and Syria supported China’s request, those of the United Kingdom, United States, Romania and Israel said Liberal International should have the right to respond to the allegations and requested the Committee defer the matter to a later date.
The representative of the United States, speaking in explanation of position before the vote, said that, while his country acknowledged the “One China” policy, it did not support Taiwan’s application for full membership in the United Nations. However, it did support Taiwan’s meaningful participation in the technical activities of international organizations. The United States also supported Taiwan’s participation in international organizations for which statehood was not a membership requirement. Moreover, Taiwan had made no politically motivated acts against China during the Human Rights Council session.
Stressing that Taiwan’s membership in WHO was in the best interest of public health, he said Liberal International’s actions did not constitute a pattern that would warrant sanctions under Economic and Social Council resolution 1996/31. The Committee should bear in mind that the secretariat of the Human Rights Council had already taken full responsibility of the incident. The United States could not support China’s call to withdraw Liberal International’s status.... [End moved text.]
[2.] As it considered new applications and reclassifications, the Committee granted special consultative status to the following organizations:
-- Inner Trip Reiyukai International, an NGO based in the United States that promotes peace, culture and education through information technology and training, values education, women’s empowerment through education and technology, youth initiatives, multi-faith dialogue, health care for AIDS victims and cultural restoration;
-- National Children’s and Youth Law Centre, an Australia-based organization that provides advocacy, information and education for children, and conducts legal research and policy development to improve laws and policies that impact children and promote their rights;
-- Bangladesh Women Chamber of Commerce and Industry, an NGO that supports women entrepreneurs through training, fair trade participation, exposure to domestic and global markets and loan guarantees;
-- Jamaica Association on Mental Retardation, an organization that aims to prevent and manage intellectual disabilities through advocacy, special education, educational assessment and placement, guidance and counselling, adult services and public education;
-- Microteam Education Apprentissage et Nouvelles Technologies, a Niger-based NGO that promotes new information and communication technology, trains primary and secondary school teachers and pupils to use computers and the Internet, and integrates information technology and the Internet into the country’s education system; and
-- Maryam Ghasemi Educational Charity Institute, an Iran-based NGO that promotes poverty eradication through free and universal education for children and through social development....
[3.] As the Committee took action on the deferred application for consultative status of the Jewish National Fund, the representative said in explaining his delegation’s position before the vote that the NGO had satisfactorily answered the Committee’s questions. It was not a politically motivated organization. Rather, it worked on sustainable development and environmental conservation issues, and the United States supported its application.
The representative of the Palestine Observer Mission said the NGO had not provided information to show it was not active in the Occupied Palestinian Territory. Its activities, including those with the Gizo Park project, violated the Geneva Convention and it should not be granted consultative status....
By a vote of 7 in favour (Colombia, Israel, Peru, Romania, Turkey, United Kingdom, United States) to 8 against (Burundi, China, Cuba, Egypt, Guinea, Russian Federation, Qatar, Sudan), with 3 abstentions (Angola, India, Pakistan), the Committee rejected the Jewish National Fund’s application....
[4.] The Committee also took action on the deferred application for consultative status of the Swedish Federation for Lesbian, Gay, Bisexual and Transgender Rights, rejecting a motion to close that application by a vote of 7 in favour (Burundi, China, Egypt, Guinea, Qatar, Russian Federation, Sudan) to 7 against (Colombia, India, Israel, Peru, Romania, United Kingdom, United States), with 2 abstentions (Pakistan, Turkey)....
I'm not up on UN-NGO relations, but this struck me as an interesting set of data points -- any thoughts from people who follow the matter more closely than I do?
More on How We've Supposedly Lost Our Traditional Free Speech Rights:
Commenter PGofHSM puts it well, responding to people who don't just complain about current speech restrictions, but argue that somehow we once had free speech but don't any more:
I'm still trying to figure out when the golden age of political free speech was.
A worthy challenge, I think. Let's even set aside sexually themed speech, purely commercial advertising, and epithets -- I think this speech should generally be constitutionally protected, but I'm willing to ignore that speech for purposes of this argument (since some of the people whom I'm generally trying to persuade believe that such speech is too far removed from political matters to merit protection). Let's focus on speech that is related to political, religious, or moral matters. When has such speech in the U.S. ever been materially more protected from government restriction, on balance, than it is now? I don't think there ever has been such a time.
I should say that I have argued against some relatively novel speech restrictions, such as hostile environment harassment law, or the recent broadening of restrictions on expensive speech about election campaigns. My point is simply that on balance speech protections, even when focusing on speech on political, religious, or moral matters, are about as broad today as they ever have been -- the high water mark having largely been achieved in the 1970s and 1980s, and on balance not materially retreated from since then -- and much broader than they often have been.
I just got my hands on my copy of Krattenmaker & Powe's Regulating Broadcast Programming, a very good book on the subject. A few highlights:
The Radio Act of 1927 authorized licensing decisions based on the content of the speech (despite its provision supposedly banning "censorship").
By 1930, the Federal Radio Commission was restricting what it saw as "propaganda stations," on the theory that "there is no place for a station catering to any group" (said in an opinion about a Chicago Federation of Labor station).
By the early 1930s, the FRC was also restricting "bitter and personal" and "ignoran[t]" "attack[s]" on "public officials."
This pattern of restriction continued for the following decades. In the 1960s WLBT, for instance, the FCC took steps (though not very strong steps) to restrict white racist television programming, on the theory that such programming didn't adequately serve black viewers. The D.C. Circuit eventually ordered the FCC to strip the station of its license.
Likewise, in the early 1970s, the FCC expressly warned broadcasters that it was against their public service duties to play songs "tending to promote or glorify the use of illegal drugs," and issued a 22-song "do not play" list, including "Lucy in the Sky with Diamonds," "Mr. Tambourine Man," "Truckin," and others. Radio stations generally complied (at least for a time).
The equal opportunities rules that had required broadcasters who chose to carry certain materials involving candidates to provide equal access to other candidates had been around since 1927. Their high water mark came in 1959, when a news reporting showing "Mayor Richard Daley greeting the president of Argentina at Midway Airport during a snowstorm" was found to trigger a duty to provide equal time to Daley's challenger (apparently something of a joke challenger) Lar Daly; this prompted Congress to provide some exceptions for news reports.
The Fairness Doctrine's "roots go back to the FRC's hostility to 'propaganda stations'"; this turned in 1940 into the decision that broadcasters "could never editorialize," and then was revised in 1949 into the doctrine that broadcasters could editorialize but had to provide access to rival views.
There's more, but this should give people a sense of how restricted broadcast programming has been for nearly all of its existence. I say this not to praise the restrictions; far from it. I'm glad that the Court has cut back on the restrictions, at least apparently imposing a viewpoint-neutrality requirement, and I hope the Court cuts back on them still more. I'm glad that the FCC has repealed the Fairness Doctrine.
But I hope this warns people not to complain that somehow some broadcasting restrictions show that "we don't have freedom of speech in America any more." Whether we're talking about political speech or speech more broadly, broadcast speech is at least as free today from government restriction as it almost ever has been, and considerably freer than it has been at many times in the past.
reports the New York Times; this also shows that checkers is guaranteed to be a draw if both players play optimally. Of course, it must also be the case that chess played optimally is a draw, that chess played optimally is a win for white, or that chess played optimally is a win for black (though the smart money isn't betting on that last one). It's just that we don't know the answer to that yet, or have a program that is guaranteed to win (or not to lose, if the optimal play yields a draw).
Note that, to be precise,
The new research proves that Chinook is invincible in the traditional game of checkers. But in most tournament play, a match starts with three moves chosen at random. In solving the traditional game, the researchers have also solved 21 of the 156 three-move openings, leaving a crack of hope for humans, at least for now.
Though of course that's not much of a crack, given that it seems likely that a computer program will very soon be able to optimally play all the games yielded by those openings, and lose only if the opening is inherently unwinnable and undrawable for it.
Thanks to my friend and computer science professor Haym Hirsh for the pointer.
Libertarian Theories of War:
In my post below I describe the libertarian take on war to be undertheorized. Two VC readers independently pointed me to two different articles by libertarians in a symposium on "War and Liberty," published in The Reason Papers. Though quite different from each other, both offer the type of effort I was calling for. I have only had a chance to read each paper very quickly, but I found them both to be very thoughtful and I wanted to get links to them up here promptly.
The first, War and Liberty, by Aeon Skoble makes many of the same arguments about sovereignty that I made in my post but goes beyond that to present a modified theory of soveriegnty. Here is a bit:
The problem is that the notion of state sovereignty in the modern era leads to a view of the moral equivalence of all states—Communist China is then no different from Republican Switzerland—and this is detrimental to human rights, because it means that a tyrannical state is immune from outside pressures to liberalize. Michael Walzer goes some of the way in this direction, but not to the ultimate conclusion. The argument is that sovereignty needs to be based in service to people, that is, protecting their rights, so illegitimate regimes don’t have sovereignty at all. There’s a Lockean component here also: If rights are conceptually prior to the state, then state sovereignty must derive from a theory of legitimacy which is based on protection of rights rather than from a theory of moral equality of all states.
The rights component gets lost when we adopt a “realist” model of legitimacy, such as actually holding power or being “recognized” by the UN. Now, what are the causes which might count as “just cause”? Least controversial is defense against aggression. The right to respond to force with force seems fairly straightforward, although in a moment I will indicate why it might not be for some. A bit less obvious is defense of another. If B is invaded by A, B might have the right to repel the invasion, but utterly lack the power to do so. C’s assistance would be justified on the grounds that B was unjustified in aggressing against A in the first place. C’s right to use force against A follows from B’s right. More controversial still are interventions; for example, taking sides in a civil war or preventing a genocide or removing a tyrant. It might seem as though only in this last case does it even matter what model of legitimacy we adopt. If A is attacked, isn’t A’s right of selfdefense absolute regardless of whether it is attacked by a republic or a tyranny? Traditional just war theory would answer yes, but I think it actually does matter. Since tyrannical states have no legitimacy, if they are attacked by free states, they cannot claim that their sovereignty is being violated. In other words, intervening to protect rights against a tyrant is not a violation of sovereignty—at least not any kind of sovereignty worth defending. (Nevertheless, the attack would have to satisfy other justice conditions, e.g., it would have to be intended to liberate oppressed people or prevent a genocide rather than to seize raw materials or to acquire territory.)
Some will argue that a free society has no business interfering in other societies’ internal politics. But this is, ironically, or paradoxically, a holdover from the old monarchist mindset. The old order on which traditional just war theory is based, and on which sovereignty is the paramount value in international relations, depends on a moral equivalence between states which is derived from a statist view, not an individualist view. On a non-statist, individualist view, individuals, not states, have rights. States may have powers, but the just powers derive from the consent of the governed. The putative right of any state to sovereignty thus is a function of its protection of the rights of the people in its domain. So a free society may very well have some business “interfering” in tyrannical or genocidal states—namely, the business of protecting life and liberty. The very language—that this is “interference” in a state’s own affairs–implies that the state has some right of action which is presumptively respected, and again, this can only be justified by old-order thinking, not by liberal thinking. (I am not here arguing that they are obliged to do so, only that they are permitted to do so, or that they do no wrong by doing so.)
The morality of warfare is an issue that has long divided libertarians. The spectrum of libertarian opinion on the subject ranges all the way from Leonard Peikoff, who defends the use of nuclear weapons against civilian targets, to Robert LeFevre, who denied the legitimacy of all violence, even in self-defense.
Needless to say, most libertarians fall at various points between these two extremes — though the divisions have become sharper since the 9/11 attacks. (One of the more ironic manifestations of these divisions is that French libertarians are far more likely to support current US foreign policy than American libertarians are; perhaps anti-government thinkers tend to be more attracted to whatever position their own government opposes.)
What view of warfare is most consistent with libertarian principles? Here I shall distinguish between libertarianism as a normative ethical theory — a theory of justice — and libertarianism as a descriptive social theory. Libertarians disagree with one another as to the extent of the former's dependence on the latter; utilitarian libertarians profess to believe the dependence total, while natural-rights libertarians profess to believe it nonexistent, but in practice both groups tend to treat the dependence as partial, and so will I.
The non-consequentialist core of libertarian ethical theory is an egalitarian commitment; specifically, a commitment not to socioeconomic equality but to equality in authority. Indeed, libertarians' lack of enthusiasm for enforced socioeconomic equality stems precisely from their concern that it can be achieved only at the cost of this for libertarians more fundamental form of equality.
The libertarian "non-aggression principle" expresses the conviction that forcibly to subordinate the person or property of another to one's own aims is to assume an unjustifiable inequality in authority between oneself and the other. And it is because this equality in authority likewise holds between private citizens and public officials that governments are forbidden to exercise any powers not available to people generally; libertarianism requires not just equality before the law but equality with the law.
It follows that a consistent libertarian theory of warfare must apply the same prohibitions and permissions to governments and private individuals alike. In this respect it will be radically different from nonlibertarian theories, which typically grant government actors more latitude in the use of violence than private actors; a libertarian theory must be equally permissive — or equally restrictive — with both. A consistent libertarian cannot, for example, accept a mere apology as sufficient recompense when the US military accidentally bombs the wrong target and kills fifteen children in Afghanistanunless she is prepared to be equally tolerant when Uncle Zeke's backyard bazooka target practice accidentally takes out a passing school bus. It can make no difference whether the perpetrator is or is not an agent of the government; nor can it make any difference whether the victims are or are not citizens of that government.
Can the FBI Install Spyware on Your Computer Without A Warrant?:
Kevin Poulsen has an interesting piece at Wired.com on a recent criminal case in which the government obtained a search warrant and remotely installed spyware on a target's computer. The program reported back a wealth of information on how the computer was being used, including IP addresses, the MAC address, etc.. No contents of communications were obtained; this would have required a Title III order rather than a traditional search warrant. The warrant affidavit is here.
Given that the government obtained a probable cause warrant and didn't collect the contents of any communications, it's hard to find a legal problem with what the government did. At the same time, the story does make me wonder if something like this was used in the United States v. Forrester case I blogged about earlier. I never did find out if the Forrester case involved monitoring at the ISP or involved spyware installed on the suspect's personal machine. But if it was the latter, I tend to think a warrant probably was necessary and the court's decision probably was wrong.
Why might it matter whether the government installed the device at the ISP or on the suspect's machine? It's true that the government ends up with the same information either way. But the Fourth Amendment usually focuses on how information is collected rather than what information is collected. The fact that the government can buy the morning newspaper at a corner store without a warrant doesn't mean that they can break into your home and read your copy without obtaining a warrant first.
More broadly, I tend to think that the most persuasive rationale for the third-party doctrine underpinning Smith v. Maryland (and thus Forrester) is that the recipient of a communication is a party to the communication that can consent to monitoring. When a communication is received by its intended recipient, that recipient has control over what to do with the information received much like the recipient of a traditional letter. Thus in Smith v. Maryland, the phone company could record Smith's telephone numbers because it was the end recipient of the communication -- the communication about the numbers to be dialed -- from Smith to the phone company.
Spyware is different. If the government places spyware on a private machine, it is not working with a party to the communication. Rather, it is intercepting the contents of communications between the parties, the user and the ISP. I think it's much harder to apply the third-party doctrine in that setting. You end up having to say that the possibility the government could get the ISP to conduct the monitoring means that the government doesn't have to try. But consent is consent in fact, not a likelihood of consent if the government had tried to obtain it. Given that, I'm dubious that spyware is covered under the rationale of Smith v. Maryland. As a result, I tend to think a warrant is probably needed to install spyware without the ISP's involvement even if non-content information was disclosed (note that a warrant was obtained in the case covered by Wired). It's not an open and shut case, but I think a warrant is probably needed.
Anyway, sorry if these ideas are hard to follow; I'm working on an article about the third party doctrine and my views are still forming, so some of my comments may seem disjointed. Finally, thanks to Dan Solove for the link.
Executive Privilege and Contempt Prosecutions:
The Washington Post has a front-page story reporting the Bush Administration's view that once the President has ordered a subordinate to exert executive privilege, a U.S. Attorney can't bring a criminal case against that subordinate when Congress refers the case to the U.S. Attorney for a contempt prosecution. It's not clear to me if "can't" means "won't," or if the claim is that if he does, the courts must dismiss the prosecution; I gather it's the former, although presumably the difference doesn't matter here.
I have no expertise in this area, so I don't know how significant this story is. My amateurish guess is that this just adds another layer of litigation to the coming legal battles: it means that after the U.S. Attorney refuses to prosecute, Congress has to file a civil action seeking an order compelling the U.S. Attorney to refer the case to the grand jury. Courts then have to deal with that issue first, which could take a while as it works its way through the appellate process. That's my guess, at least; I'm sure Marty Lederman and others will be able to say much more.
Antiwar Libertarians and the Reification of the State:
I hesitated writing my WSJ op-ed, Libertarians and the War because I knew it would provoke a strong reaction from antiwar libertarians, many of whom have been my friends and colleagues for a very long time. That it did. Therefore, I am grateful for the many emails and blog posts thanking me for pointing out that some libertarians disagree with Ron Paul's stance on the war. But I am even more grateful to the many antiwar libertarians who avoided personal attacks and leveled their critique at what they perceived to be my argument rather than against me personally. And I am pleased that very few read my op-ed as an "attack" on antiwar libertarians generally or Ron Paul in particular. To the contrary, one cannot claim as I did that reasonable libertarians can disagree about the Iraq war and, at the same time, dismiss all antiwar libertarians as unreasonable. And I went to some lengths to specify areas of agreement shared by both libertarian supporters and opponents of the Iraq war.
Where most antiwar critics of my op-ed have gone wrong, however, is in asserting that I was attempting to refute their antiwar stance or was offering a defense of the Iraq war on libertarian grounds. That would have been difficult enough to do in a 1400 word op-ed; but was impossible in the 215 words I devoted to why some libertarians disagree with Ron Paul. It should be no surprise, therefore, that they found these 215 words unpersuasive. My sole aim in my op-ed was to inform readers that they should not assume that Ron Paul speaks for all libertarians because it is an undeniable fact that he does not. I have the emails and blog posts to prove it empirically!
[WARNING TO READERS I: LIKE MY WALL STREET JOURNAL COLUMN, WHAT FOLLOWS IS ALSO NOT A DEFENSE OF THE IRAQ WAR! WHILE MY COLUMN WAS ABOUT "LIBERTARIANS AND THE WAR," THIS POST IS ABOUT "LIBERTARIANISM AND WAR." I am sincerely interested in hearing antiwar libertarians' reactions to the analysis below, about which I am genuinely puzzled and have an open mind.]
While a few emailers and bloggers merely asserted that no "true" libertarian could support the Iraq war, the substantive responses to my actual thesis about libertarians and the war were very few. These arguments came largely from radical (or anarchist) libertarians. I have some genuine questions about the coherence of the radical libertarian antiwar position as it is typically presented — questions that would not apply to the same degree, if at all, to a limited state libertarian or minarchist, the antiwar positions of whom this post does not address.
[WARNING TO READERS II: THE TERM "RADICAL LIBERTARIAN" IS NOT BEING USED IN ANY WAY PEJORATIVELY. I AM MERELY DISTINGUISHING THEM FROM LESS RADICAL LIBERTARIANS. AND THIS IS NOT AN "ATTACK." I AM MERELY RAISING SOME QUESTIONS ABOUT THE COGENCY OF THEIR STANCES ON WAR. AND IF YOU DO NOT HOLD THESE VIEWS, THEN I AM NOT WRITING ABOUT YOU.]
In addition to arguments about the costs and risks of wars in general and/or a particular war, the radical libertarian antiwar position typically includes a strong assertion of the following two propositions:
(1) War is Inherently Unjust. Some radical libertarians are antiwar because they say that war is an inherently unjust activity because it is engaged in by governments who are inherently unjust and illegitimate. Moreover government-waged war — that is, "war" as they define it — unavoidably kills innocent persons and violates their rights. Because the U.S. government is illegitimate (as all governments are), so is the war in Iraq (as all government-waged wars are). Whether or not this argument is correct, standing alone, it is entirely coherent.
(2) Foreign Governments are Sovereign. But judging from their emails and blog posts, many radical libertarians who hold position (1) at the same time adopt a hyper-legalistic view of what constitutes a "war of aggression" in which states are treated as though they were individual persons. In other words, they adopt the Westphalian view of nation states and sovereignty, which was devised to recognize and protect the autonomy of the government rulers "their" territory. When making this argument, these radical libertarians treat foreign governments as "sovereigns" to be respected (by the U.S. government) unless they commit or imminently threaten an act of aggression against the territory of another sovereign. Systematically violating the rights of their own subjects or citizens is a wholly internal domestic matter. In essence, these foreign governments are treated IN PRINCIPLE as the just owners of the territories they govern. And their conduct is to be judged by the same rules of self-defense as are individuals.
As with stance (1), whether or not this argument is correct, standing alone, it is entirely coherent. Indeed, it is the mainstream position of international law, or was the mainstream position before the rise of the concepts of collective governance by international organizations like the United Nations and by the doctrine of internationally recognized "human rights," both of which significantly qualified and greatly complicated the Westphalian notion of sovereignty. So it is noteworthy that, when assessing the conduct of the United States government, radical libertarians are committed, not to the current views of international law (as qualified by collective governance and human rights), but to an unqualifiedly pure Westphalian theory.
One might say that, when dealing with issues of (American) foreign policy, these libertarians reify (foreign) states and treat them like individuals, with all the natural rights of individuals. Even if you try to rephrase stance (2) in terms of "the People" of the respective states, at its core, I do not see how this stance can be anything other than deeply, expressly and quite literally "nationalist" — which seems an odd stance for a radical libertarian. (More moderate libertarians do not have this problem; they have others, but this post is not about them.)
There may be many prudential reasons for treating states like people in the international arena, and I am not arguing one way or the other on the usefulness of this way of thinking. I am just noting that radical libertarians seem to hold a particularly ardent version of this commitment to nation states when they assess American foreign policy. And that seems to be in tension with their stance (1) in which all governments are illegitimate, and equally so.
In addition to these two tenets, antiwar radical libertarians also typically hold the following two positions:
(3) The illegitimacy of the United Nations. Many of these same antiwar radical libertarians, Ron Paul included, are ardently opposed to the United Nations as any sort of governing or ruling authority. This stance I believe to be not only coherent, but entirely correct. But as I will note below, this separates them from the currently prevailing view of international law and, as a result, they can make no recourse to lack of authorization by the United Nations or even violations of United Nations directives in offering criticisms of American foreign policy.
(4) The existence of fundamental human rights. I doubt that any radical libertarians would question the existence of fundamental "human rights." (Indeed, that is part of their argument in (1) above that all war is unjust because it violates the rights of innocents.) Again, I think this stance is not only coherent, it is correct. But again, this means that their strong commitment to state sovereignty in stance (2) puts them at odds with today's international law that recognizes the legitimacy of sometimes protecting human rights by militarily interfering with the sovereignty of a government who has not attacked or threatened to attack another nation state.
That many radical libertarians today simultaneously hold all four of these views is an artifact of the particular evolution of American libertarian thought over the past sixty years, coupled with an undeveloped and inadequate theory of legitimacy. I address the issue of legitimacy in Part I of Restoring the Lost Constitution (you can read a free version of the argument here), which some have mistaken as a repudiation, rather than a refinement, of radical libertarianism, a misunderstanding that stems from many radical libertarians' failure to appreciate the inadequacy of their conception of legitimacy (but this is beyond the scope of this blog post).
THE PROBLEM(S): While each of these stances, standing alone, is coherent, I have trouble understanding how radical libertarians can coherently hold all four positions. In particular, as already noted, stance (1) seems to be in severe tension with stance (2). How can ALL governments be fundamentally and EQUALLY illegitimate (when assessing the propriety of the U.S. government) but all (foreign) governments--no matter what their form or conduct--must be treated AS A MATTER OF PRINCIPLE (as opposed to prudence) as sovereign owners of their territories whose jurisdictions over "their" people are absolutely inviolable unless they attack the territory controlled by another sovereign government?
There is also seems to be some tension between stance (2), according absolute sovereignty to government rulers of whatever stripe, and stance (4) affirming the fundamental human rights of all persons. This tension only increases when we consider these sovereign governments are wholly illegitimate according to stance (1), but they still cannot be stopped from violating fundamental rights (stance 4) within their sovereign territory by other equally illegitimate but also sovereign governments.
Are these foreign governments illegitimate for some purposes or in some contexts and legitimate in others? If so, what is the source of the latter legitimacy that seems inconsistent with stance (1)? And why then might not the U.S. government be legitimate in some respects while being illegitimate in others? To be clear, I am not asserting any answer to these questions. I am only noting that combining stances (1) and (2) seems to require a more nuanced or complicated view of legitimacy than either stances (1) or (2) standing alone. Any such distinction would greatly complicate many radical libertarians' implicit theory of legitimacy according to which all governments are EQUALLY illegitimate.
Moreover, I don't see how radical libertarians can accept stance (3) rejecting entirely the legitimacy of the U.N. and at the same time criticize the action of the U.S. government as "illegal" because it lacks U.N. authorization, or even that it affirmatively violates U.N. resolutions. While I doubt that this sort of criticism is often made by radical libertarians, it is worth noting that they cannot rely on a purely positivist conception of international law to assess the "legality" of U.S. foreign policy because international law today DOES recognize the U.N. and current international law also sometimes views as legitimate military interference with sovereign states to protect fundamental human rights against, for example, genocide. To the extent they want to make claims about the "illegality" of the conduct of the U.S. government, therefore, radical libertarians need to make a NORMATIVE argument on behalf of an PURE Westphalian theory of sovereignty that is no longer recognized by international law, if it ever was. And this is an odd stance for a radical libertarian.
Can a radical libertarian argue that the U.S. government exceeds its powers under the Constitution when it uses its military aggressively? I don't see how without implicitly conceding some DEGREE of legitimacy to the Constitution. Not only would this violate stance (1) by which all government are equally illegitimate, but many radical libertarians are quite hostile to the Constitution, preferring the Articles of Confederation. But would not that mean legitimating the governments of the separate states in violation of stance (1) in which all government are equally illegitimate? How did state governments get to be legitimate governments according to a radical libertarian?
There is one obvious rejoinder a radical libertarian could make to reconcile logically all four of these positions. If ALL wars waged by states are inherently unjust because states are inherently illegitimate and the rights of innocents are always violated by state wars (stance 1) then, a fortiori, an aggressive war by one state against another must also be unjust (stance 2). In essence, stance 2 is simply collapsed into stance 1 as a special case. Because all wars by states are unjust, this includes aggressive wars against sovereign states.
But this rejoinder won't work for most radical libertarians because it proves too much. Stance (1) would oppose ALL wars INCLUDING WARS OF SELF-DEFENSE which stance (2) and most radical libertarians purport to allow. Now I realize that some fraction of radical libertarians, whose opinion I respect, believe that there is no such thing as a just war, but most radical libertarians (including most critics of my WSJ op-ed) allow the legitimacy of a defensive war and oppose only wars of aggression. Some antiwar libertarians who oppose the Iraq war as aggression, for example, supported the war in Afghanistan on "self-defense" grounds. And those who didn't say they would support a war that was truly in self-defense. They simply deny that the war in Iraq fits that description. Yet if they also accept stance (1), as they appear to, then ON THEIR ACCOUNT because a defensive war is waged by an illegitimate government and the rights of innocents were inevitably violated, it too must be opposed.
What if radical libertarians tried to salvage the legitimacy of a just defensive war (and the U.S. Constitution too?), by jettisoning or softening stance (1)? We would then be back to arguing whether a particular war is legitimately an act self-defense, even if it will harm the innocent and even if it is waged by a government. (More on this below.) And to salvage the Constitution the radical libertarian might have to acknowledge that, while all governments may be UNJUST to the extent that they confiscate their income by force and put their competitors out of business by force, some governments are nevertheless more LEGITIMATE than others, and a particular ACTION by a government could be JUST even if the government (qua government) that performs the just action is not. But all this is going to greatly complicate any blanket condemnation of wars waged by governments who may be legitimate to a greater or lesser degree, and some illegitimate altogether and deserving (in principle) of no respect whatsoever, even from other governments.
Perhaps most obviously, it is not clear how radical libertarians can be committed to stance (2) and continue to claim they are radical. Given the nature of government, radical libertarians should be wary of the reification of states as though they were individuals entailed by stance (2). Once stance (2) affirming the sovereignty of states is relaxed or jettisoned altogether, however, analysis of national "self defense" becomes far fuzzier than when we speak of individual self-defense, if for no other reason that persons residing in other "nations" have fundamental human rights that may be violated by those who govern the territory. These innocent persons may justly call upon others to assist them in protecting their rights, and welcome this assistance even at some risks to themselves, and even if it comes from a rival government.
Because of radical libertarians commitment to human rights (stance 4), and their skepticism of the legitimacy of any government (some version of stance 1), any such discussion of self defense should be cautious about relying too heavily on the fine points of a purified version Westphalian international law — or about assessing governments by the specific doctrines that have arisen in civil societies to assess personal defense of self and others. Perhaps these concepts transfer over perfectly, but that cannot be assumed. And they should also avoid any reference to the United Nations (see stance 3) and take into account the human rights (stance 4) of foreigners who are oppressed by "their" governments.
Any such discussion among principled libertarians would be pragmatic, based on an assessment of those policies that tend to advance liberty versus those that tend to retard it (and some antiwar blogger response to my op-ed take exactly this approach), and one's opinion will vary greatly with one's beliefs about the facts of a particular situation, as well as the respective natures of the governments involved. And it can also be principled.
But any such discussion will unavoidably be VERY complex. I cannot even begin it here. I can only raise a few simple questions about the coherence of radical libertarians' antiwar stances. Indeed, this overly long blog post only begins to examine the complexity of libertarianism and war, a HIGHLY under-theorized topic, that merits the attention of radical and moderate libertarians alike.
But for those poor dedicated readers who have gotten this far, perhaps this post will make it easier to appreciate just WHY even radical libertarians can AND DO disagree about the war in Iraq. And maybe also that at least some antiwar libertarians have not completely reconciled their antiwar stances with their libertarianism. Speaking for myself, I know I do not have a fully developed theory of libertarianism and war.
In such an environment, Iranians who disagree with the government's positions might hesitate to express those disagreements to foreign pollsters. They might instead toe the official line in order to protect themselves from the secret police. Obviously, good pollsters will promise respondents anonymity. But Iranians - who have lived in a police state for decades - might well distrust the sincerity of such promises. For all they know, the "pollster" who has contacted them is actually a government agent trying to ferret out dissent. Even if they believe the pollster to be sincere, there is still no guarantee that the conversation between pollster and respondent won't be overheard by the secret police.
Fear of punishment gives inhabitants of repressive societies strong incentives to lie to pollsters if they disagree with the government line. Public opinion scholars have long been aware of this problem. For example, this classic study of Nicaraguan public opinion under the Sandinista communist dictatorship showed that many Nicaraguans were only willing to express their true opinions about the government if they believed the pollsters to be affiliated with anticommunist opposition parties. In his brilliant 1995 book Private Truths, Public Lies, economist Timur Kuran documents numerous similar examples of people in repressive societies hiding their true views in order to avoid punishment by the state.
None of this proves that citizens of repressive societies never genuinely support their rulers. Adolf Hitler was genuinely popular in 1930s Germany, for example. It does, however, show that researchers should not take pro-government poll responses in such countries at face value. Scholars have understood the problem for a long time. There is no longer any legitimate excuse for polling organizations to ignore it.
I don't blame Iranians who may have lied to Western pollsters out of fear. I do blame pollsters who fail to consider the possibility that such lying may affect their results.
The California Supreme Court issued an interesting decision this week on the enforceability of liability waivers in standard form contracts. At issue in City of Santa Barbara v. Superior Court, -- Cal.Rptr.3d -- (2007 WL 2027806), was a release from liability for "any negligent act" signed by a parent as part of an enrollment contract that allowed her daughter to participate in a camp for disabled children run by the city of Santa Barbara. The court ruled, 6-1, that the contract was enforceable as to allegations of ordinary negligence, but not gross negligence. This wasn't surprising; it is standard hornbook law that such waivers in the context of recreational activities are enforceable as to ordinary negligence but not as to gross negligence, although a few jurisdictions won't even enforce waivers for ordinary negligence. But it is interesting that, according to the court, it had never actually addressed this issue (although for decades Witkin on California Law has claimed that the majority rule applies in the Golden State).
One interesting issue is the logical coherence of the doctrine in this area. Why enforce liability releases even for ordinary negligence? It might make sense to enforce releases of narrow waivers of liability concerning specific conduct, on the ground that the consumer might be able to avoid some harms more cheaply than the seller can prevent it, and the parties should be able to contract for this efficient state of affairs: for example, a ski resort operator might state that it does not check the slopes daily for rocks, and the customer is precluded from suing if he crashes into one. But when the customer waives liability for all negligence, he usually will have no idea what precautions the seller otherwise would be taking but is declining to take as a result of the waiver. In almost every case, it will be cheaper for the seller to exercise ordinary care than for a consumer to compensate by taking extraordinary precaution if that consumer has no idea of what precaution to take.
One might argue for enforcing general releases on strict freedom-of-contract grounds: i.e., that the buyer and seller should be allowed to enter into any agreement that they find mutually agreeable. This seems problematic to me on the ground that bounded rationality limits the number of attributes buyers consider when they make purchasing decisions, and that the terms in the "fine print" will rarely be factored into the decision making process -- a topic I've written about extensively in law journal articles. Regardless, however, the freedom-of-contract argument doesn't provide a justification for enforcing releases from ordinary negligence but not from gross negligence.
One logical reason to distinguish between waivers of ordinary negligence and gross negligence liability is to counter the hindsight bias likely to affect juries. Perhaps we think that, after an accident occurs, juries will be likely to judge the seller's reasonable actions to have been unreasonable and, thus, negligent. Viewed this way, the doctrinal distinction between levels of negligence merely allows the seller with a good lawyer to ensure it will not be held liable for reasonable activity that led to an unfortunate outcome.
Whatever the justification, for the distinction between levels of negligence to have any practical value, it is important for there to be real difference in judicial treatment of complaints that allege ordinary negligence and complaints that allege gross negligence. Otherwise, an injured consumer who signed the waiver can get to a jury merely by using the term "gross negligence" in his complaint. It is true that defendants will get the "gross negligence" jury instruction rather than the "negligence" instruction, so the jury will be told to use a higher standard in judging liability, but this alone is cold comfort to a defendant if the hindsight-biased jury views the defendant as a wrongdoer and is free to award compensation to the injured plaintiff or his grieving family. For the distinction between ordinary and gross negligence to really have bite, courts must be willing to grant summary judgment when the facts fail to demonstrate "want of even scant care" or "an extreme departure from the ordinary standard of conduct" -- the definition of gross negligence according to the California courts. Here, the California courts really blew the decision. The facts indicated, at most, quite ordinary negligence, yet the Court of Appeal refused to grant summary judgment for the City, and the Supreme Court didn't review that part of the decision below, considering only the question of whether liability for gross negligence can be disclaimed.
Here are the pertinent facts: The plaintiff's 14 year-old daughter, Katie, suffered from seizures, yet the plaintiff affirmatively requested that Katie be allowed to swim in the camp's pool and dive off the diving board, and she declined an option to have Katie wear a flotation jacket while in the pool on the ground that she judged Katie to be a strong swimmer. Notwithstanding the parent's lack of concern, the City assigned a college-student employee who had served as a special-education aide and received special instruction on handling seizures to personally supervise Katie, and only Katie, in the pool. (In addition, the City had five lifeguards supervising all the children in the pool.) Katie suffered a mild seizure lasting only a few seconds one afternoon. The aide kept Katie out of the pool under observation for 45 minutes, and then determined that Katie was fine. She then allowed Katie to return the pool, but she required Katie to rest for several minutes after diving into the pool and swimming to side. The aide sat at the edge of the pool watching Katie at all times. On Katie's second trip into the pool, the aide briefly took her eye off of Katie. By the time she and the lifeguards could locate Katie, Katie had drowned.
By taking her eyes off of her charge for even a few seconds, the aide was arguably negligent, but if this constitutes "gross negligence" the distinction between the categories is meaningless. Nevertheless, the Court of Appeal held that the facts alleged were sufficient for a jury to find gross negligence, and thus it refused to grant summary judgment.
And they must also cease broadcasting any movies where Fred was an actor, such as The Hunt For Red October where he was a carrier admiral.
Because we don't have freedom of speech in America any more.
The first paragraph is right, but the second one misses the boat. Remember that radio and television broadcasting was heavily regulated in the U.S. -- considerably more heavily than it is today -- nearly from its birth. The "equal opportunities" rule is quite old. Its exceptions for news are actually a Congressional liberalization of the rule following an FCC decision in the late 1950s that applied the rule even to certain news coverage of candidates. The Fairness Doctrine, in various of its guises, was around for decades until it was repealed by the FCC in the late 1980s.
The underlying ideology behind all these restrictions, which is chiefly that the communications spectrum is scarce public property that is held more or less as a public trust by the licensees, and that the licensees must therefore be subjected to various restrictions and access mandates -- even when those mandates deter the licensees from carrying certain speech -- has thus been around as long as broadcasting has been. In some measure, recent decades have seen something of a retreat from the high-water mark of such restrictions.
Nor can one say that somehow free speech protection was pure until the 1920s or 1930s in the non-broadcasting media, and the broadcasting restrictions were a retrenchment from traditional protection. Before the 1920s and 1930s, courts upheld various restrictions on advocacy of illegal conduct, broad libel rules that had the effect of deterring not just falsehood but opinion and true statements, obscenity laws that went far beyond hard-core porn, restrictions (often enforced by judges using criminal contempt power) on coverage of trials and criticism of judges, and a wide range of other restrictions. And movies essentially lacked any First Amendment protection from the 1910s to the 1950s.
So one can certainly argue against restrictions on broadcasters; I sympathize with these arguments, and there's some reason to think that the Court would, too, if such a case came before it. But there's no justification for casting this as some sort of recent loss of traditionally recognized free speech protections. Where it comes to broadcasting, the general trend has been towards more protection of broadcaster rights (especially with the abolition of the Fairness Doctrine, though with a bit of recent retrenchment on vulgarity and nudity), not less.
Valerie Plame Wilson and Joseph Wilson sued Vice President Dick Cheney and several other Executive Branch officials for their alleged complicity in the disclosure of Valerie Plame's work for the CIA. Today, the U.S. District Court for the District of Columbia dismissed the claims. The opinion is here. Howard Bashman rounds up preliminary news coverage here. Whatever one thinks of the whole Plame affair, I do not think there was ever much argument that this lawsuit was a bit of stretch.
Opponents of the use of the Due Process Clause to protect substantive rights, notably Robert Bork (see, e.g., Coercing Virtue p. 55), trace the origins of "substantive due process" to Scott v. Sandford. This is disingenuous (or perhaps ignorant) on two levels. First, there is ample evidence that Scott did not originate that the concept of due process protected rights from arbitrary government interference, especially with regard to vested property rights. Second, while Bork and others make it seem as if the due process issue was a major part of the Scott holding, in fact Justice Taney only addressed the due process issue very briefly, as part of an illustration of the fact that Congress does not have plenary powers over territories that have not yet become states. Taney's opinion for the Court is over fifty pages long, and the entire discussion of due process takes place in just one paragraph on the fiftieth page of the opinion. Here, in context, is all Taney had to say about due process:
But the power of Congress over the person or property of a citizen can never be a mere discretionary power under our Constitution and form of Government. The powers of the Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself. And when the Territory becomes a part of the United States, the Federal Government enters into possession in the character impressed upon it by those who created it. It enters upon it with its powers over the citizen strictly defined, and limited by the Constitution, from which it derives its own existence, and by virtue of which alone it continues to exist and act as a Government and sovereignty. It has no power of any kind beyond it; and it cannot, when it enters a Territory of the United States, put off its character, and assume discretionary or despotic powers which the Constitution has denied to it. It cannot create for itself a new character separated from the citizens of the United States, and the duties it owes them under the provisions of the Constitution. The Territory being a part of the United States, the Government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Government can exercise no power over his person or property, beyond what that instrument confers, nor lawfully deny any right which it has reserved.
A reference to a few of the provisions of the Constitution will illustrate this proposition.
For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.
Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.
These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.
The main historical significance of Scott's discussion of due process, then, is not as the case that invented "substantive due process," as Bork would have it, but quite the opposite--it indicates that by 1856 the concept of due process was already seen as encompassing substantive rights, and that this was sufficiently well-established that Taney felt comfortable using this an offhand example of limitations on Congressional power.
UPDATE: A comment points out that Justice Scalia has said: "You know what Dredd Scott was? Dredd Scott was the first case to use the horrid term 'substantive due process.' Which has been the source of all of the inventiveness of the Supreme Court in developing 'an evolving standard of decency.'" Apparently, Scalia needs to read the actual Scott opinion, and some constitutional history, instead of The Tempting of America. Scott was not the first case to use the concept of SDP, and it definitely did not use that term. Indeed, the phrase "substantive due process" wasn't invented until at least the 1930s. This leaves the Lochner critics who commonly chastise the Court for relying on the "oxymoron of 'substantive due process'" looking rather silly, as the Justices of the Lochner Court would not have been familiar with that phrase.
Must NBC Stop Running Law & Order Episodes With Fred Thompson if He Announces His Candidacy,
or else face the obligation to give rival candidates equal time? The answer is yes, under 47 U.S.C. § 315(a):
If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provision of this section. No obligation is hereby imposed under this subsection upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any –-
(1) bona fide newscast,
(2) bona fide news interview,
(3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or
(4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto),
shall not be deemed to be use of a broadcasting station within the meaning of this subsection....
Entertainment programming is not included within any of these exceptions; and the FCC and the courts have ruled that appearances as actors or entertainers are covered as "use [of] a broadcasting station." See, e.g., Paulsen v. FCC, 491 F.2d 887 (9th Cir. 1974) (entertainment appearances by comedian and jocular Presidential candidate Pat Paulsen); In re Weiss, 58 F.C.C.2d 342 (1976) (broadcast of movies in which Ronald Reagan had acted); In re Culpepper, 99 F.C.C.2d 778 (same); 100 F.C.C.2d 1476 ¶ 34(d) (1984) ("If an actor becomes a legally qualified candidate for public office, his appearances on telecasts of his movies thereafter will be uses, entitling his opponents to equal time, if the actor is identifiable in the movies"); id. ¶ 34(e) (taking the same view for other broadcast appearances, for instance by "the host of a teenage dance show," "a radio disc jockey," and a minister on a religious program); see also Branch v. FCC, 824 F.2d 37 (D.C. Cir. 1987) ("equal opportunities" requirement is triggered when a TV reporter continues to appear on the TV program after announcing his candidacy for city council, even though he had long been a regular reporter, and even though his reporting was not directly related to his candidacy; none of the news exceptions were found to apply).
The FCC's repeal of the Fairness Doctrine does not affect this, since this is a Congressionally enacted statute that's separate from the Fairness Doctrine and outside the FCC's power to repeal. Arguments that entertainment should be treated like news coverage won't carry the day in court, since the statute clearly limits the exceptions to news coverage. (The "Provided, That such licensee shall have no power of censorship over the material broadcast under the provision of this section" language simply means that the broadcaster generally may not restrict what candidates say in various contexts. It does not exempt entertainment appearances from triggering the rule, even though those appearances were originally subject to the broadcaster's control.)
I'm trying to translate the following quote from Dürrenmatt, for the article I'm working on:
[A]uch ich habe eine Kunsttheorie, was macht einem nicht alles Spaß, doch halte ich sie als meine private Meinung zurück (ich müßte mich sonst gar nach ihr richten) und gelte lieber als ein etwas verwirrter Naturbursche mit mangelndem Formwillen.
I pretty much understand what it means, but I'm having trouble with the second clause ("was macht einem nicht alles Spaß"). Those of you who know German very well (and are preferably native German speakers): What's your take?
UPDATE: Thanks, all! My preferred translation, which I'm including in my paper, is the following:
I too have a theory of art—what doesn’t one do for fun?—but I keep it to myself as my personal opinion (otherwise I’d actually have to follow it) and prefer to be considered a somewhat scatterbrained nature-boy with no sense of form.
Feel free to keep commenting if you like. I'm adding acknowledgments to "commenters on the Volokh Conspiracy blog" to my paper, but if you feel you want a more specific acknowledgment, shoot me an e-mail.
According to WESH Channel 2, "Orlando is becoming one of the most difficult cities in America to sell a home for fair-market value." Note to news editors at WESH: "fair market value" is the price at which buyers and sellers are willing to conclude a deal. If sellers can't sell their homes, by definition they are pricing them above "fair market value." Similar confusion besets homeowner James Phillips: "I'm not really desperate to sell," Phillips said. "I know the value of my house, so I just have to wait it out." The value of one's house is what someone is willing to pay for it! It's true that if one holds out long enough, sometimes an idiosyncratic buyer will come along and pay the price the seller thinks the house is worth. But in a declining market, more often the seller eventually has to eventually lower his price well below what he could have sold it for originally if he had priced it at the true "market price," rather then the price he thinks his house deserves.
Via Paul Caron comes news that Ralph R. Papitto asked that his name be taken off the law school at Roger Williams University and the school has agreed to do so. Students and alumni had called for Papitto's name to be removed after he used a racial epithet during a discussion of diversity at one of the school's Board of Trustees' meetings.
Diaz-Castaneda and the Possibility of Fourth Amendment Use Restrictions:
Yesterday, in United States v. Diaz-Castaneda, the Ninth Circuit had some interesting dicta in an otherwise-routine Fourth Amendment decision. The dicta touches on a topic that law professors have long been very interested in, so I thought I would flag it.
The facts of the case are simple. A police officer saw a truck driving on the highway, observed its license plate number, and then ran a computer check of the plates and learned that the registered owner of the truck had a suspended license. The officer saw that the driver of the truck matched the description of the owner of the truck, so he pulled over the truck. The issue in the case was whether the officer's viewing the plates and running the computer check was a Fourth Amendment "search" of the driver that occurred without probable cause and was therefore unlawful.
In an opinion by Judge Fisher, the court concluded that no search occurred: the license plates were in plain view, so the officer did not search or seize anything by seeing the tags. This is clearly right in light of cases like New York v. Class. But then the court did something unusual; it adopted parts of a framework from a 6th Circuit dissent suggesting that license checks could be searches in some cases because they might retrieve particularly sensitive information.
In Diaz-Castaneda, the Ninth Circuit concluded that the license check in this particular case was not a search, but that other checks might be searches in some cases:
[T]here is no indication that license plate checks in Oregon result in the retrieval of information that “may not otherwise be public or accessible by the police without heightened suspicion.” The information that [the officer] accessed about [the driver], namely that he was the registered owner of the truck and that his license was suspended, was already present in the police database and presumably available to any inquiring police officer. Were this not the case — for example, had [the officer] used [the driver]’s license plate to obtain information that [the driver] reasonably expected would be unavailable to the police, or had [the officer] violated police guidelines regarding the proper searching of databases — our conclusion might very well be different.
This suggestion is just a suggestion, and obviously doesn't settle anything. But it's hinting at a pretty revolutionary idea. The Fourth Amendment has always been understood to regulate government collection of information but not subsequent use of information. Once information is collected, the government is free to use it however it wants. But here the Court seems to be suggesting a potential use restriction. First, license check "might very well" be a search if the officers do not comply with "police guidelines regarding the proper searching of databases." Second, it might be a search if the information retrieved by the officer is information that a driver wouldn't reasonably expect an officer to be able to retrieve (which I gather refers to information in government databases held outside the police department, although it' not clear).
I'm understanding the language correctly, the panel seems open to the idea that that the government might collect information without violating a reasonable expectation of privacy -- leading to its inclusion in some kind of government database -- but then could retrieve the information in a way that does violate a reasonable expectation of privacy. That is, the court seems to be suggesting the possibility of a Fourth Amendment use restriction beyond the rules regulating the initial government collection of information. This is a pretty revolutionary suggestion, and I'll be very interested to see if a future Ninth Circuit panel takes that ball and runs with it.
A commenter says "no," "according to the government diversity manual." It turns out the answer is more complex — it all depends on which program you look to. A few examples:
36 C.F.R. § 906.2(k) (Pennsylvania Avenue Development Corporation): "Hispanic — is an individual who is descended from and was raised in or participates in the culture of Spain, Portugal, or Latin America, or who has at least one parent who speaks Spanish or Portuguese as part of their native culture."
24 C.F.R. § 81.2 (The Secretary of Hud's Regulation of the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac)): "Hispanic or Latino — a person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin, regardless of race."
40 C.F.R. § 35.6015 (Cooperative Agreements and Superfund State Contracts for Superfund Response Actions): "Hispanic American (with origins from Puerto Rico, Mexico, Cuba, South or Central America)."
Cal. Admin. Code § 97700.29 (Minority Health Professions Education Foundation): "For purposes of this chapter, 'Hispanic/Latino' means a person whose ancestry can be readily traced to Mexico, Puerto Rico, the Caribbean basin, or any other country of Central or South America where Spanish is the recognized official language. A person shall not be considered Hispanic/Latino solely on the basis of possession of a Spanish surname."
Cal. Admin. Code tit. 2, § 547.80 (Equal Employment Opportunity Program / State Work Force Data Collection and Evaluation): "'Hispanic' means any person whose origin is Mexico, Puerto Rico, Cuba, Spain, or the Spanish-speaking countries of Central or South America. It does not include persons of Portuguese or Brazilian origin, or persons who acquired a Spanish surname."
Cal. Admin. Code tit. 22, § 7130 (California Department of Aging): "'Minority' means an ethnic person of color who is any of the following: ... Hispanic -- a person of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish or Portugese culture or origin regardless of race." (Note then that to be a "minority" the Hispanic person must be "an ethnic person of color" of certain "culture or origin" -- but "regardless of race.")
Fla. Admin. Code Ann. r. 60A-9.001 (Office of Supplier Diversity): "Hispanic American: a person of Spanish or Portuguese culture with origins in Spain, Portugal, Mexico, South America, Central America or the Caribbean Islands, regardless of race."
asks a Stanford Law school "Addendum to NALP Workplace Environment Questionnaire." On the one hand, it's good that they are treating "diversity" as more than a code word for race. On the other hand, how would someone who is sincerely trying to answer this figure it out? Is a lawyer "openly religious" only if he wears religious garb or jewelry? Only if he publicly talks to people about his religious? And even if there are openly religious attorneys, what does that tell us about the firm's openness to lawyers of other religions?
One more, "For social events to which spouses, domestic partners, or guests are invited, are invitations clearly extended to the partners or guests of gay and lesbian attorneys?" I appreciate that gay and lesbian lawyers might in some firms feel uncomfortable bringing their same-sex spouses, partners, boyfriends, or girlfriends, and that this might cast something of a pall on the work environment for them. But are law firms really expected to formally write on all their invitations, "partners and guests of gay and lesbian attorneys welcome"? My guess is that the firms at which gays and lesbians are most accepted are precisely the ones who don't feel the need to mention sexual orientation on their invitations, and simply tell everyone that they should feel free to bring a guest.
I sympathize with people's concerns about whether a firm culture is open to people of various religions, to gays, and to other minority groups. And I also understand that when one is trying to gather and disseminate data on a large scale, the result will often look oddly bureaucratized. But some of these attempts to gather the data -- and, implicitly, to convey to employers how they are supposed to behave -- seem to me likely to be so imprecise as to be useless, and sometimes even counterproductive.
OK, Parse This for an Israeli or Armenian Lawyer Who Works at Your Firm:
From the fourth edition of the Vault / Minority Corporate Counsel Association survey:
4. For this survey, minorities are defined as those whose race is other than White/Caucasian and include African-American/Black, Hispanic/Latino, Alaskan/American Indian, Asian, Pacific Islander, Middle Eastern and Multiracial. If your firm has not tracked and does not have data for one or more of these categories (such as Middle Eastern), you may include a footnote explaining which categories are not recognized by your firm. For example: "The totals above for minority men and minority women do not include Middle Eastern associates." Please note that for the purposes of this survey, "White" means "White/Caucasian" and does not include "White/Hispanic."
So is the Israeli a minority because he is Middle Eastern? Is he not a minority because it is not the case that his "race is other than White/Caucasian" -- but if that's so, then how would most Middle Easterners be minorities, given that under all the standard racial definitions with which I'm familiar Middle Easterners are considered white or Caucasian? Is the Israeli only a minority if his forbears case from the Middle East, as opposed to being from (say) Poland or Russia, and, if so, what should he do if he thinks your 2000-years-ago forbears did come from the Middle East?
Or are you supposed to say, "I know what the MCCA means, Israelis aren't real Middle Easterners or real minorities, because they're too Western, Middle Easterner means ..." -- means what exactly? Just people from poor middle Eastern countries? How about people whose well-educated parents left Iran following the fall of the Shah? Saudis? Are you supposed to try to decide based on how much discrimination the Middle Easterners are likely to face or have faced in America?
OK, now tell me what you do with Armenians. Does it matter whether they are from Soviet Armenia, Iran, or the Armenian diaspora? (I should note, by the way, that there are a lot of Armenian law students at least in the L.A. area.) Do they have to be Middle-Eastern-looking, as opposed to more East-European-looking?
I realize, of course, that there is imprecision in all measurement systems, and the imprecision, the opportunities for gamesmanship, and the difficulty to which people are put when they have to figure out identity labels for themselves and colleagues aren't reasons enough to abandon such inquiries. But they are costs to be kept in mind -- especially as groups keep getting added, and the costs and imprecision (who's "Middle Eastern"? "Asian"? "Hispanic"/"Latino"? "with disabilities or physical challenges"?) mount.
Revealing Undercover Police Officers' Identity Not Tortious in New Mexico,
even when the speaker is aware that publicizing these identities may help others commit crimes against police officers; so the Tenth Circuit held last Friday in Alvarado v. KOB-TV. An interesting crime-facilitating speech case, and in some tension with some earlier cases involving witnesses (see footnote 18 of my crime-facilitating speech article).
Ashland University, a church-affiliated school denied tenure to an Objectivist historian because he did not support the "Judeo-Christian tradition." A religious institution certainly has every right to enforce its ideology, but only in accordance with the contracts it signs with faculty. In this case, it appears that Ashland's academic regulations made it far from clear that the professor, John Lewis, was violating university policy. To make matters even more dicey, the university had accepted 100k in funding from an Objectivist organization to support the research of Lewis and another professor. In the end, Lewis was granted tenure, but agreed to resign from the faculty. Thanks to F.I.R.E. for alerting me to this story.
A reader writes, responding to various calls for "sensible restrictions" on gun rights:
Anyhow, I propose sensible restrictions on the first amendment! Just sensible restrictions, e.g., the NY Times should not be able to publish anti-terrorist methods, like how the DoJ searches financial records to find terrorists. That's a reasonable restriction, isn't it? The NY Times already admitted that if they had to do it over again, they would sit on the story.
Perhaps if someone such as yourself were to (tongue in cheek) make such a proposal, the media morons might be able to see the problem with "sensible restrictions" on gun ownership — they might then wise up to the bill of goods being sold to them by the Brady brunch.
Well, the trouble with this argument is that there are of course already many sensible restrictions on what speakers, including the press, may say and write. As to the mainstream press, consider libel law, false advertising law, and copyright law. As to other speakers, consider incitement law, fighting words law, threats law, child pornography law, and obscenity law. Consider also restrictions on what government employees may say, including to the press, such as laws that make it a felony to leak income tax records, certain kinds of classified materials, and the like. And consider various content-neutral speech restrictions, such as bans on soundtrucks, laws regulating the time, place, and manner of demonstrations, and the like.
What's more, shifting from the descriptive to the prescriptive, some of us may disapprove of some of the restrictions (for instance, I disapprove of obscenity laws), but I expect that nearly all of us would accept some restrictions on speech. A categorical rule that all speech is protected, with no room for at least some sensible restrictions, would be a pretty poor rule.
Now of course one can argue that certain kinds of supposedly "sensible" restrictions aren't very sensible, for instance because they interfere substantially (and therefore unjustifiably, the argument would go) with people's ability to defend themselves, or because they are unlikely to accomplish anything and thus don't justify even modest interference with self-defense. One can also warn against the tendency to equate "sensible" restrictions with "reasonable" restrictions and there with the "rational basis" test, under which nearly any restriction — including a total ban on all guns — would be constitutional. Finally, one can resist attempts to articulate constitutional tests in terms of "sensible" restrictions -- the way First Amendment law has developed, for instance, is through courts evaluating arguments that some restriction is sensible, rejecting some arguments, and creating more precise constitutional rules (such as the tests for punishable incitement, libel, and the like) for those restrictions that courts agree are indeed sensible.
But it doesn't make sense to condemn in principle all calls for "sensible restrictions," on the theory that we wouldn't or shouldn't tolerate "sensible restrictions" on speech or press or other generally constitutionally protected activity. The law does tolerate some such restrictions, which we think particularly important and sensible. The law should tolerate some such restrictions, even if we think those restrictions should be fairly narrow exceptions to the rule of general protection of speech. American law has never taken an absolutist view with regard to speech protection. So the analogy to speech protections — already generally limited given the fact that different kinds of constitutionally protected activity raise different concerns, and analogies between activities can therefore only go so far — strikes me as a poor way to argue in principle against supposedly "sensible restrictions" on gun rights.
And, as readers of this blog know, I say this as someone who supports constitutional protection for gun rights, has written about state constitutional rights to bear arms, has often noted the possibility that even seemingly modest restrictions may lead to broader ones, and has often noted that many gun restrictions are highly unlikely to work. Consider how weak the argument I quoted above would be to those who support gun rights less than I do.
Could you possibly cover the subject of states recognizing other state licenses? I have a driver's license from state A that state B must recognize. I have a marriage license from state A that state B must recognize. I have a carry license from state A that state B refuses to recognize. Why? How can this be changed?
The Full Faith and Credit Clause of the Constitution generally requires states to recognize out-of-state court judgments. There is, if I recall correctly, some authority (though not completely clear) that a state must also recognize out-of-state marriages.
But the Constitution otherwise leaves each state with the authority to decide who is licensed to do what within that state. Congress may in many situations preempt such licensing with federal legislation. If the activity is constitutionally protected, a state by definition may not interfere with it through a discretionary licensing scheme -- a state may not, for instance, require a discretionary license to publish newspapers (though it may sometimes require speakers to get licenses that must be issued under content-neutral conditions, for instance parade permits). And in some situations, if the activity is interstate and a licensing requirement will gravely and without adequate justification burden the activity, the state rule may violate the dormant Commerce Clause. But those are exceptions; the rule is that a state decides for itself who is licensed to do things there.
Thus, a state has no constitutional obligation to recognize driver's licenses from other states. I'm not sure whether there's some federal law mandating such recognition, or whether states just do it as a matter of "comity," which is to say out of a desire to work well with other states (and to get reciprocity for their own citizens). But in any event, such recognition was a democratic choice, not a constitutional command. Likewise, states can often do refuse to recognize out-of-state professional licenses, such as licenses to practice law or medicine.
So how can one get one's licensed recognized in another state? Well, if courts conclude that there's a constitutional right not just to own a gun but to carry one on one's person -- which a very few state courts have, some as to a right to carry open and one as to a right to carry concealed -- then the question will become moot: One then wouldn't need a license to carry concealed (or at least would be categorically entitled to such a license upon showing that one is a law-abiding adult and perhaps paying a nominal fee).
But if that doesn't happen, then the answer to "How can this be changed?" is through state-by-state legislation, and possibly also federal legislation (for instance, legislation conditioning various kinds of funding on a state's willingness to recognize out-of-state licenses). Not very likely at the federal level, I realize, but my understanding is that many states have indeed provided for recognition of out-of-state licenses, especially if the other state reciprocally recognizes such licenses.
One of my pet ideas is the Jock/Nerd Theory of History. If you're reading this, you probably got a taste of it during your K-12 education, when your high grades and book smarts somehow failed to put you at the top of the social pyramid. Jocks ruled the school.....
According to the Jock/Nerd Theory of History, most historical human societies bore a striking resemblance to K-12 education. In primitive tribes, for instance, the best hunters are on top. If the the village brain knows what's good for him, he keeps his mouth shut if the best hunter says something stupid....
With the Jock/Nerd theory firmly in mind, this sentence takes on a deeper meaning:
We don't take steps to redress inequalities of looks, friends, or sex life.
Notice: For financial success, the main measure where nerds now excel, governments make quite an effort to equalize differences. But on other margins of social success, where many nerds still struggle, laissez-faire prevails....
Punchline: Through the lens of the Jock/Nerd Theory of History, the welfare state doesn't look like a serious effort to "equalize outcomes." It looks more like a serious effort to block the "revenge of the nerds" - to keep them from using their financial success to unseat the jocks on every dimension of social status.
I think that my collective action and cross-cutting cleavage objections to traditional libertarian class theory also apply to Bryan's jock/nerd theory. I'll leave the details as an exercise for VC readers.
In addition, I'm not sure that Bryan has the K-12 class structure down right. It is not the jocks who are the primary enemies of high school nerds; it is the "cool" and "popular" people. Some of the latter are jocks, but most are simply people with a combination of good looks, good clothes, and good social skills. In my experience, most jocks simply ignore nerds and vice versa. By contrast, the cool people compete with nerds for dates, social status, positions in student government, and so on; and at least in high school, the cool people usually win. In my days as a nerdy high school student, I never lost anything I really wanted to a jock; far from wanting to "take revenge" on them, I respected their athletic prowess (from a safe distance). The cool crowd was a very different story.
Does this distinction have any relevance to Bryan's broader theory? Possibly. While there are a few ex-jocks in the political class (e.g. - baseball Hall of Famer Senator Jim Bunning), there are a lot more former "cool" and "popular" kids. The latter are much more responsible for the growth of government than the former.
Of course, it's possible that Bryan's high school experience (nerds oppressed by jocks) is more common than mine (nerds subordinated, if not actually oppressed, by the popular crowd). Perhaps when we get done with our current coauthor collaboration, we can do a study of nerd social dynamics!
Problems with Libertarian Theories of Class Conflict:
Most people associate the theory of class conflict with Marxism, and its view that modern society inevitably leads to a zero-sum conflict between "capitalists" and the "working class." But, ever since the 19th century, some libertarian thinkers have advanced their own theories of class conflict - ones that emphasize the division between those who bear the costs of government and those who are net beneficiaries of the state.
Unfortunately, libertarian class theory has many of the same weaknesses as the Marxist version.
This recent piece by libertarian writer Sheldon Richman provides a good summary of libertarian class theory:
[T]he [19th century economic] theorists whom Marx credits with teaching him class analysis placed in the productive class all who create value through the transformation of resources and voluntary exchange. The “capitalist” . . . belongs in the industrious class along with workers. Marx didn't learn this part of the lesson.
Who are the exploiters? All who live off of the industrious class. Besides common crime, there is only one way to do that: state privilege financed by taxation. "The conclusions drawn from this . . . is that there existed an expanded class of 'industrials' (which included manual labourers and . . . entrepreneurs and savants) who struggled against others who wished to hinder their activity or live unproductively off it,” Hart writes: "The theorists of industrialism concluded from their theory of production that it was the state and the privileged classes allied to or making up the state ... which were essentially nonproductive. They also believed that throughout history there had been conflict between these two antagonistic classes which could only be brought to end with the radical separation of peaceful and productive civil society from the inefficiencies and privileges of the state and its favourites"...
In this view, political-economic history is the record of conflict between producers, no matter their station, and the parasitic and predatory political class, both inside and outside of government. Or to use terms of a later, British subscriber to this view, John Bright, it was a clash between the tax-payers and tax-eaters. (emphasis added).
Many libertarians find this theory appealing. So too have some nonlibertarians, such as John C. Calhoun. Unfortunately, it has serious flaws remarkably similar to those of Marxist class theory. It fails to consider the importance of collective action problems, and also ignores what political scientists call "cross-cutting cleavages."
Collective Action Problems.
Marxists have never succeded in explaining what incentive individual capitalists or workers have to advance public policies that benefit their "class" as a whole. A "procapitalist" policy that benefits the entire group is a public good shared by thousands of people, perhaps millions. Why shouldn't the individual greedy capitalist simply sit back and free ride upon the lobbying efforts of other capitalists? If they act to promote their common interest, procapitalist policies will be implemented even if an isolated individual doesn't contribute. If they don't, his individual efforts probably won't be enough to force the policy through by himself. The same point applies with even greater force to workers, a much larger group than capitalists. The average worker has even less incentive to invest time and effort in promoting proworker policies than capitalists have in promoting procapitalist ones.
What is true of Marxian classes is is also true of the libertarian theorists' "taxpayer" and "taxeater" classes. Both taxpayers and taxeaters are very large groups who have strong incentives to free ride on the lobbying efforts of their fellows. Indeed, given widespread rational political ignorance, many people probably don't even know which group they belong too. If you recognize, as Richman does, that the cost of government includes the burden of regulation and other nontax measures, while the "taxeater" class includes those who benefit from such policies, figuring out whether you are a taxpayer or taxeater becomes quite difficult, and not worth the necessary investment of most individual voters' time.
The basic economics of collective action and free-riding seriously undermines both Marxist and libertarian theories of class conflict. If anything, the latter is even weaker than the former. In Marxist theory, most people can easily tell whether they are "workers" or "capitalists"(though the existence of human capital, unrecognized by Marx, makes things more complicated). By contrast, it's often difficult to tell where one falls on the taxeater-taxpayer continuum.
Get your minds out of the gutter! Unfortunately, cross-cutting cleavages have nothing to do with sex. Rather, the cross-cutting cleavage is a concept that recognizes that most people have multiple interests and identities that affect their political views. A person who considers himself a "worker" doesn't necessarily define his political identity exclusively by this characteristic. He might instead also focus on race, ethnicity, religion, gender, the particular industry he works in, and so on. Some or all of these other identities might well play a greater role in determining his political orientation than his belonging to the "working class." And, empirically, political systems divided along Marxist class lines are far less common than those where other cleavages play as much or more important roles.
The same point applies to the libertarian taxpayer/taxeater divide. For most people, this is a much less important dividing line than a variety of other conflicts. Indeed, most people are perfectly happy to favor increases in government spending and regulation for some purposes (say, morals regulation), while opposing it for others (say, welfare).
Unfortunately, libertarian class theory is no better at explaining real-world political development than the Marxist version. To the extent that many fewer people see themselves primarily as "taxpayers" and "taxeaters" than as "capitalists" or "workers," it may even be worse.
UPDATE: For some related criticisms of libertarian class theory, see this post by Bryan Caplan.
UPDATE #2: To avoid misunderstanding, I should emphasize that both Marxist and libertarian class conflict theories are empirical as well as normative. That is, they not only claim that people should base their political actions primarily on their "class" identities, but predict that most people actually will do so. If class conflict theory is correct, we should see political conflicts that largely track the class divisions that the theory in question sees as crucial (taxeater vs. taxpayer for libertarian theory; worker vs. capitalists for the Marxists). It is these empirical predictions that has been falsified by events, and that I criticize in the post. I don't consider the purely normative aspects of class theory, though obviously I have serious reservations about those too.
the sex crime (sexual contact with a child under 14) prosecution -- even in juvenile court -- of a 12- and a 13-year-old who had consensual sex with each other. An interesting opinion, and an interesting occasion for a puzzle: Which court do you think this is?
To learn the answer, just click on the full opinion -- but try not to click until you read the entire excerpt:
When she was thirteen years old, Z.C. engaged in consensual sex with a twelve-year-old boy and became pregnant. The state prosecutor chose to file delinquency petitions against both Z.C. and the boy for sexual abuse of a child under [State] Code section 76-5-404.1 [basically, in this context, any sexual touching of someone under 14 -EV], a crime that would constitute a second degree felony if committed by an adult....
Because we conclude that the legislature could not possibly have intended to punish both children under the child sex abuse statute for the same act of consensual heavy petting, we hold that applying the plain language of the statute in this case produces an absurd result. [Footnote, slightly moved: It is undisputed that Z.C. and the boy engaged in more than just sexual touching, but we must analyze the absurd result question in the context of the law actually applied and the act with which the State chose to charge Z.C., not the law that might have been applied or the act with which the State could have charged Z.C.]
Sexual abuse of a child is one of the most heinous crimes recognized by our penal code. The gravity of this crime is reflected by the fact that it is punished as a second degree felony if committed by an adult. Child sex abuse merits serious penalties because of the extreme psychological harm that the perpetrator causes the victim. Therefore, like all forms of sexual assault, child sex abuse presupposes that a single act of abuse involves a victim, whom the statute endeavors to protect, and a perpetrator, whom the statute punishes for harming the victim.
The State, however, applies [State] Code section 76-5-404.1 in an unprecedented manner. By filing delinquency petitions for child sex abuse against both participants for sexually touching one another, the State treats both children as perpetrators of the same act. In this situation, there is no discernible victim that the law seeks to protect, only culpable participants that the State seeks to punish. We know of no other instance in which the State has attempted to apply any sexual assault crime to produce such an effect.
[Footnote: The primary fail-safe against the absurd application of criminal law is the wise employment of prosecutorial discretion, a quality that is starkly absent in this case. While the State makes no attempt to defend the prosecution's charging decision, it suggests that the particular offense selected by the prosecutor as the basis for the delinquency petition is not significant because a juvenile delinquency adjudication is not a criminal conviction, but merely a means to bring the juvenile within the guiding supervision of the juvenile court. If this is truly the case, it begs the question of why the prosecutor could not have accomplished the intended result by basing the delinquency petition on a victimless offense that more accurately fits the conduct at issue.]
We acknowledge that the legislature has demonstrated its intent to punish both participants in victimless, extramarital sexual activity under [State]'s adultery and fornication statutes. However, these statutes differ from sexual assault crimes, such as child sex abuse, in both the theory and degree of punishment. Rather than punishing an actor who has perpetrated a crime against a victim, these laws demonstrate the legislature's disapproval of the acts of both participants for violating a moral standard. Because these crimes do not involve a victim, they involve a lesser degree of punishment. Both adultery and fornication are punishable as class B misdemeanors. Thus, while the legislature clearly could have intended some degree of simultaneous culpability for both Z.C. and the twelve-year-old boy under the fornication statute in order to discourage their admittedly reckless and age-inappropriate behavior, it is absurd to conclude that the legislature intended to simultaneously punish both children for child sex abuse, a crime that clearly envisions a perpetrator and a victim.
A review of the floor debates regarding the 1983 enactment of the [statute] reveals no evidence that the legislature contemplated application of the statute to situations where the same child was both victim and perpetrator. Although we generally do not consult legislative history where the meaning of the statute is clear, after finding that the plain meaning has been applied in an absurd manner, we seek to confirm that the absurd application was indeed unintended by the legislature....
We conclude that the legislature could not have intended the child sex abuse statute to be applied to punish Z.C. for the conduct at issue. And the fact that this is a juvenile court disposition, in which the judge enjoys considerable latitude in crafting punishments and assigning state services designed to help the child, does not change our conclusion. No amount of judicial lenity to compensate for the absurd application of the law changes the fact that the application of the law was absurd to begin with. Moreover, labeling Z.C. with the moniker of "child abuser," even within the juvenile court system, can have serious consequences that were not intended by the legislature. A delinquency adjudication for sexual abuse of a child can lead to sentencing enhancements for any offenses Z.C. might commit while she is a juvenile or even as an adult if her juvenile record is not expunged. Such an adjudication also has the potential to affect any civil proceedings related to the custody of her child or any future attempts to seek child support from the father.
We therefore vacate Z.C.'s adjudication. We stress, however, that our holding is narrowly confined to the application of [State] Code section 76-5-404.1 in situations where no true victim or perpetrator can be identified. Even among children under the age of fourteen, there are unfortunately situations where an older or more physically mature child abuses a younger or smaller child. In cases where there is an identifiable distinction between the perpetrator and the victim, it is manifestly logical to conclude that the legislature intended to include such acts within the scope of [State] Code section 76-5-404.1. In Z.C.'s case, however, where both children were under the age of fourteen and were of similar age, where both children met the intent requirement of the statute, and where there was no evidence of any coercion or force, we conclude that application of the child sex abuse statute produces an absurd result....
Even though the plain language of section 76-5-404.1 allows Z.C. to be adjudicated delinquent for sexual abuse of a child, we conclude that the filing of delinquency petitions against both participants produces an absurd result not intended by the legislature because, like all sexual assault crimes, the statute presupposes a perpetrator and a victim. We therefore hold that the juvenile court erred in denying Z.C.'s motion to dismiss the delinquency petition. We remand this matter to the court of appeals with instructions to remand it to the juvenile court to vacate Z.C.'s delinquency adjudication.
Question for Readers Who Own Copies of Academic Legal Writing:
A quick question -- if you own a copy of Academic Legal Writing, how did you decide to get it? Was it recommended by a professor? Was it recommended by your law review? Was it recommended by a classmate? Did you see it in a classmate's hands, and ask about it? Did you buy it because you saw me promote it on the blog? Was it recommended on another blog? Did you get it as a present from someone, and do you know how he got it? My publisher and I would love to hear your feedback on this. Many thanks!
I agree with most of Randy's and Ilya's comments on libertarianism and war. I'm just writing to silghtly disagree with Ilya about the nature of libertarianism.
As Ilya writes, the idea that "nondefensive humanitarian military intervention is potentially compatible with libertarianism" may seem to be "a paradoxical claim," but really isn't paradoxical at all. It only seems paradoxical if you think libertarianism, in its essence, is necessarily opposed to government action. But the variety of libertarianism I subscribe to isn't a set of answers; it's a way of asking questions. (Libertarianism is, of course, large; it contains multitudes. "The variety of libertarianism I subscribe to" is quite different than, say, anarcho-capitalism and many other varieties of libertarianism. However, I claim, my variety is consistent with libertarianism, and moreover, a better variety than others!)
And the questions one should ask about any government intervention is whether it will, on balance, increase the protection of rights (where "rights" are defined in a libertarian way -- an important debate but not relevant to this post).
Now -- step 1 -- many government interventions make no pretense at increasing the protection of rights. So that's sufficient reason to oppose them right there. (Adducing examples of this is left as an exercise to the reader.)
But some government interventions, in particular all recent U.S. interventions, make at least a claim that they will increase rights protection in some way. Then -- step 2 -- it's probably a good idea to be deeply suspicious that such claims will pan out, because governments usually do a bad job at this sort of thing. But this is an empirical claim and, as Ilya says, "cannot be deduced from the nature of libertarianism itself on a priori grounds."
Therefore, while I agree with Ilya that "libertarians oppose all or most large-scale government programs in the domestic realm," I disagree that "if they didn't, they would no longer be libertarians." I think libertarianism requires ruling out certain things at step 1, but once the government intervention comes with a claim of rights protection, it can only be rejected on the merits at step 2. Libertarians can disagree at step 2, and many of them will turn out to be incorrect, but such disagreements are fully consistent with the framework of libertarianism.
Thus, one can imagine a libertarian who's either exceptionally optimistic about the chances of success of most potentially-rights-enhancing government programs, or exceptionally pessimistic about the state of rights without the government intervention (even an incredibly bungled one). This libertarian might support most potentially-rights-enhancing government programs (and so you could potentially have a super-hawkish, high-tax libertarian, or similarly a super-environmentalist, high-regulation libertarian). Others, more pessimistic about the programs or optimistic about the state of the world without the program, might take the opposite view. But all of these can properly be called libertarians.
Just got it in the mail, and like it a lot. I saw it years ago at an airport, was reminded of it a few days ago, and decided to buy it online.
The Paleoartisans site from which I bought it isn't really well set up for taking online orders; but if you e-mail firstname.lastname@example.org your name, address, credit card information (card number, expiration date, and the three-digit security code from the back — the very things you'd routinely use to buy things online), authorization to charge you $18.75, T-shirt size, and color (select from these), you'll get the shirt in a few days. And, no, I'm not getting any money (or free shirts) from them.
The one thing I'd have liked even more would be a similar T-shirt with the text "People's Front for the Liberation of Gondwanaland." Also ordered recently, though from different sellers: A Curious George shirt, matching father-and-sons Russian Winnie-the-Pooh (Vinni-Pukh) T-shirts (CafePress), a Cheburashka and Crocodile Gena T-shirt (also CafePress), and a Che Burashka T-shirt (also CafePress):
I agree with most of the points Randy Barnett makes in his excellent op ed on libertarianism and war. Both the Iraq War specifically and defense policy more generally have historically divided libertarians, as I explained in two posts last year (here and here).
Randy makes a good case that libertarians who accept the idea of defensive war cannot categorically reject the possibility that sometimes the best defense is a good offense. They can, of course, ultimately conclude that limiting war to narrow defensive efforts against truly "imminent threats" is the best policy. But that conclusion requires additional evidence to support it, and cannot be deduced from the nature of libertarianism itself on a priori grounds.
I would go one step further than Randy, and suggest that even nondefensive humanitarian military intervention is potentially compatible with libertarianism. This is a paradoxical claim. After all, libertarianism is nothing if not an ideology of deep skepticism about government-controlled enterprises and wars of any kind clearly fall into that category. Certainly, libertarians oppose all or most large-scale government programs in the domestic realm; if they didn't, they would no longer be libertarians.
Why is warfare different? Because in foreign policy, unlike in domestic policy, the alternative to US government action is often not the free market or civil society, but instead the continued rule of other governments. If the US government abolishes Domestic Program X, that usually means that the field is left open to private sector actors. Libertarians generally assume that the private sector will handle the issue more effectively - and with less infringement on individual rights - than the government would.
By contrast, let us assume that President Reagan decided not to invade Grenada in 1983. The alternative to Reagan's action was not private sector control of Grenada or a libertarian minimal state in that country, but the continued rule of Grenada's communist dictatorship. That dictatorship was, of course, itself a government. Moreover, it was a much worse government - in libertarian terms - than the liberal democratic regime that the US installed after the invasion Reagan ordered. On balance, it is highly likely that the US invasion of Grenada was a net gain in terms of promoting libertarian values, even when one factors in the loss of life and property in the fighting. Grenada is perhaps an easy case for pro-intervention libertarians. Other cases, including Iraq, may be much harder. Nonetheless, it does illustrate one example where military intervention clearly advanced libertarian values far more than it undermined them.
The key insight here is that question of humanitarian military intervention is not a tradeoff between government and the private sector, but is usually a tradeoff between two different governments - the status quo and the one the invaders plan to install. Sometimes, the latter government will be much better from the standpoint of libertarian values than the former. Obviously, one also has to factor in the lives and resources lost in the fighting. Sometimes, these will be so great as to counsel against intervention even in a case where the status quo government is extremely oppressive. The current government of North Korea is perhaps the worst in the world, but its possession of a large army and nuclear weapons ensures that trying to forcibly remove it may be even worse - from a libertarian point of view - than leaving it alone.
Whether or not humanitarian military intervention can be justified on libertarian grounds will vary from case to case. It depends on how unlibertarian the current government is, how much better the new one is likely to be, and how much loss of life and property will occur as a result of the fighting. Libertarianism gives clear, determinate answers on most questions dealing with tradeoffs between the government and the private sector. It is not nearly so unequivocal on issues dealing with tradeoffs between two or more governments. The question of war and military intervention usually falls into the latter category.
None of this suggests that one cannot be a libertarian and still oppose virtually all military action other than narrowly defined self-defense. If you believe that offense is rarely an effective form of defense and that humanitarian intervention nearly always leads to the installation of governments as bad or worse than those they replace, libertarian isolationism becomes the right policy prescription. However, such a conclusion does not flow from the intrinsic nature of libertarianism itself. It requires extensive additional empirical and theoretical analysis to justify it on libertarian grounds. For that reason, libertarians will continue to disagree over war and military intervention.
More on the Origins of Justice Roberts's "Stop Discriminating" Language.--
As general background on the history of the nondiscrimination ideal, the best place to start is Andrew Kull's prize-winning The Color-Blind Constitution (Harvard Press). Kull details the rejection of the color-blind version of the 14th Amendment in favor of what was viewed at the time as the weaker and less radical version that was adopted. And he details the rejection of color-blindness, just a few years after a consensus was finally reached in 1964 that American law was to be color-blind. His last main chapter describes the shift away from color-blindness toward what Justice Brennan called "benign racial sorting." In the course of that chapter he describes the idea that the special contribution of American law to reducing discrimination might be to embrace nondiscrimination.
What steps do you think should be taken to eradicate racial prejudice and discrimination? What steps should be taken, I guess, are the ones I laid out in my letter to the Equal Employment Opportunities Commission. That is, we should stop discriminating on the basis of race, sex, religion, and origin. Stop, stop, stop. That's where everybody wants to go. The best way to get there is to get there--that is, to stop. You do not eradicate an unfortunate legacy by perpetrating another unfortunate legacy. (Meet: William Bennett; the Secretary of Education; interview NEA Today June, 1985.)
Timothy Muris and Richard Parker, officials at the Federal Trade Commission under the Bush and Clinton Administrations respectively, have an op-ed in today's Wall $treet Journal urging lawmakers to recognize the competitive reality of today's oil industry before adopting additional regulations and controls. Here's a taste:
We've spent years at the Federal Trade Commission enforcing the antitrust laws in this industry and even more time studying oil markets. We have come to this conclusion: When legislators don't completely understand the industry, even their best efforts can harm consumers.
Consider one driver of harmful regulation, the belief that a handful of large oil companies control the industry. In fact, the industry is not highly concentrated. The four largest firms collectively hold a smaller share than the top four firms in many other industries, and these firms face a lot of competition. Valero is the largest U.S. refiner and non-oil companies like Wal-Mart, Sheetz and WaWa sell a significant portion of retail gasoline. Most gas stations are owned and operated independently.
The oil industry's long-term earnings are also typically in line with other industries. Recently, the oil industry has earned above-average profits -- 9.5 cents for each dollar in sales in 2006, compared to 8.2 cents for manufacturers. But U.S. oil took a hit in the 1990s as earnings fell well below those of other industries.
And as economic learning and antitrust enforcement have evolved, we've seen that big and profitable are not necessarily bad. In recent decades, the real oil industry has greatly improved its efficiency through a series of mergers, which have improved resource management, increased innovation and technology diffusion, and moved assets to firms with the ability and expertise to expand capacity. Extensive FTC studies have confirmed that the industry is highly competitive, that concentration and mergers have not increased prices, and that market forces -- most notably the price of crude oil and supply shocks -- cause price increases. . . .
What we need are policies that let the market operate to spur investment in exploration, capacity expansion, operating efficiencies and technology advances.
Instead, Congress is proposing to exacerbate America's energy problems. Some want to make price gouging -- a vague term with no clear legal meaning -- a crime. Such legislation would discourage the industry from responding rapidly to product shortages. As bad as high prices are, no gas at all, or a return to gas lines, is much worse. Moreover, price gouging laws will harm consumers by reducing investment in new refineries.
Students at the Roger Williams University -- Ralph R. Papitto School of Law wish to have Mr. Papitto's name removed from the school because he used a racial epithet during a board of trustees meeting. Paul Caron has the details here.
Today a divided panel of the U.S. Court of Appeals for the D.C. Circuit dismissed challenges to a series of agreements between the U.S. Environmental Protection Agency and operators of animal feeding operations (AFOs) in Association of Irritated Residents v. EPA. Judge David Sentelle wrote the majority opinion, joined by Judge Brett Kavanaugh. Judge Judith Rogers dissented. Based upon my preliminary read, this looks like a significant decision for both environmental policy and administrative law. Pollution from AFOs, also known as "CAFOs" for "Concentrated Animal Feeding Operations," is a major environmental issue in much of the country, and the decision further addresses the distinction between agency rules and enforcement actions, the latter of which are not subject to judicial review.
The case grew out of federal efforts to begin regulating emissions from AFOs under the Clean Air Act and other environmental statutes. There is no question that AFOs can be a substantial source of environmental emissions, but there significant uncertainty about how to measure AFO emissions, and therefore it is not clear which AFOs are subject to what environmental requirements. This prompted the EPA to propose an innovative agreement with AFO operators. As the majority opinion explains:
Generally, an AFO emits these pollutants in proportion to its size: the more animals it houses, the more it pollutes. Precise measurements have eluded the government and the AFO industry, which are in agreement that there is no existing methodology to measure reliably an AFO’s emissions. . . . The present uncertainty hampers EPA’s ability to enforce the requirements of the Clean Air Act, EPCRA, and CERCLA against AFOs. EPA’s solution to this problem was to invite AFOs to sign a consent agreement under which each AFO will assist in developing an emissions estimating methodology. . . . In exchange, EPA will not pursue administrative actions and lawsuits against the AFOs for a defined period of time. . . . In the agency’s
judgment, this is the “quickest and most effective way” to achieve compliance.
In sum, the EPA said to AFO operators: Pay a fine and help us figure out how much you pollute so we can enforce the law against you in the future, and we won't prosecute you for your current and past emissions, even if they are violating the law. Environmental groups argue that this lets polluters off easy. EPA argues that this is the quickest way for the EPA to obtain the information necessary to adopt regulatory controls on polluting AFOs. In a sense, the policy debate here is similar to that over environmental audit privilege.
Whether or not the EPA's idea makes good policy sense, AFO operators thought it was a good deal, and the vast majority of eligible industry participants signed up. Environmental groups that have long sought AFO regulation were not so thrilled and filed a petition for review of the EPA-AFO agreements alleging that the agreements were regulations dressed up as an enforcement actions, that the EPA failed to follow the proper rulemaking requirements, and that the EPA exceeded its statutory authority. The D.C. Circuit found these arguments unavailaling, however, and dismissed the petitions for review on the grounds that "the agreements do not constitute rules, but rather enforcement actions with the EPA's statutory authority" and "exercises of EPA's enforcement authority are not reviewable by this court."
Here are some excerpts from the majority opinion:
The Agreement is intended to save the time and cost of litigation while providing the agency with an opportunity to determine whether, and to
what extent, AFOs are subject to the statutory requirements. . . . EPA could have pursued
enforcement actions against each individual AFO, but determined that a broader strategy would lead to quicker industry-wide compliance. . . . These judgments – arising from considerations of resource allocation, agency priorities, and costs of alternatives – are well within the agency’s expertise and discretion. . . . .
Petitioners argue that the Agreement is intended to “prescribe law” because it grants an exemption from the Acts for a specified period of time. We disagree. The Agreement merely
defers enforcement of the statutory requirements, and makes that deferral subject to enforcement conditions that will ultimately result in compliance. An AFO that fails to fulfill specific obligations loses the protections of the Agreement, leaving EPA free to sue or take other enforcement actions against the AFO. A limited deferral subject to enforcement conditions works no change in the agency’s substantive interpretation or implementation of the Acts. As a result, it is not consistent with the concept of a “rule” as that term has been defined. . . .
More generally, in the Agreement EPA issues no statement with regard to substantive statutory standards. EPA has not bound itself in a way that reflects "cabining" of its prosecutorial discretion because it imposed no limit on its general enforcement discretion if the substantive statutory standards are violated. . . .
We find no principled reason to treat EPA's decision to secure compliance by settlement in lieu of litigation differently than its decision to initiate and subsequently settle litigation. . . .
The covenant not to sue participating AFOs does not represent a policy that EPA will not enforce the Acts; to the contrary, it is part of the agency's attempt to ensure that AFOs comply with the Acts. . . .
The authority bestowed on the agency sufficiently covers EPA’s actions in this case. EPA’s
power to make decisions about whether and how to enforce the Acts reasonably contemplates the agency developing a plan for achieving compliance that it deems best suited to the industrial landscape and technological obstacles presented. Its ability to choose among numerous enforcement options in a particular case encompasses its decision that the best way to proceed in this case is by the Agreement.
Judge Rogers wrote a lengthy dissent, concluding that the agreements were, in fact, a legislative rule and that the Agency exceeded its statutory authority.
This case involves the intersection of two doctrines. The first involves an agency’s unreviewable enforcement discretion, and the second relates to agency rulemaking power. The initial question for the court is whether the scope of enforcement discretion is expansive enough to cover the animal feeding operation (“AFO”) protocol formally announced by the Environmental Protection Agency
(“EPA”) in the Federal Register . . . . The court concludes that the enforcement protocol is an exercise of enforcement discretion that falls within the scope of the exception to judicial review set forth in Heckler v. Chaney, and that EPA has not promulgated a legislative rule subject to the notice and comment requirements of the Administrative Procedure Act . . . . Undoubtedly there is some conceptual overlap between the doctrines to the extent that policies adopted by agencies often reflect discretionary determinations about how to enforce statutes that Congress has entrusted them to implement. However, by imposing a civil penalty on AFOs in the absence of individualized determinations of statutory violations, EPA has attempted to secure the benefits of legislative rulemaking without the burdens of its statutory duties. Our precedent does not permit the boundless stretching of Chaney to undercut the purposes of notice-and-comment rulemaking. . . .
By replacing the enforcement scheme in three congressional statutes with an unauthorized system of nominal taxation of regulated entities, EPA has promulgated a reviewable regulation. EPA cannot avoid the regulatory responsibilities imposed by Congress by trading nominal sanctions for amnesty to the regulated industry. However much enforcement discretion EPA may have in determining whether or not to file enforcement actions and whether to settle and on what terms, Congress has not authorized EPA to allow the
regulated community to buy its way out of compliance with the statutes. For a minimum penalty plus $2,500, an AFO can, under the enforcement protocol, avoid liability for any potential and ongoing violations of three statutes for at least a two-year period while EPA gathers and studies emissions data and for an indeterminate period thereafter while EPA develops and publishes new estimation methodologies, . . . ; at no point are there repercussions beyond a possible future enforcement action if an AFO opts out of the agreement to be bound by the methodology regulations that EPA develops. Assuming no glitches, EPA’s endeavor to develop reliable methodologies could, according to the
recommendations it has followed, take five, twenty, or even thirty, years. This is not an enforcement scheme at all, and is not a decision that Congress committed to agency discretion.
Given the AdLaw-heavy nature of the decision, and the lack of a circuit split, I do not think this is a particularly good candidate for certiorari, nor do I expect en banc review. Nonetheless, I think this is an interesting and important case for administrative law and environmental policy types to chew over.
In a new article on Tech Central Station, Mike Krause and I examine the growing threat of Chinese influence in Latin America, and elsewhere. We suggest an expansion of free trade--with Latin America and with Taiwan--as part of the American response.
The Origin of "The Way to Stop Discrimination on the Basis of Race Is To Stop Discriminating on the Basis of Race":
Orin points to a New Republic editorial that credits this quote to Judge Carlos Bea and Ted Olson:
Today, the view lives on in elite organizations like the Federalist Society, with which Roberts has long been affiliated. Indeed, the much-cited coda to Roberts's opinion — that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race" — is lifted almost verbatim from a 2005 dissent by circuit court judge Carlos Bea, also a Federalist Society booster, which itself recalls a slogan favored a decade ago by former solicitor general Theodore Olson, another Federalista.
Note, though, that Judge Bea actually credited the forbears of his quote, and he didn't include Ted Olson. Here's what Judge Bea wrote:
Or, as more recently said by the late Justice Stanley Mosk of the California Supreme Court:
Racism will never disappear by employing devices of classifying people and of thus measuring their rights. Rather, wrote Professor Van Alstyne, ‘one gets beyond racism by getting beyond it now: by a complete, resolute, and credible commitment [n]ever to tolerate in one's own life or in the life or practices of one's government the differential treatment of other human beings by race. Indeed, that is the great lesson for government itself to teach: in all we do in *1222 life, whatever we do in life, to treat any person less well than another or to favor any more than another for being black or white or brown or red, is wrong. Let that be our fundamental law and we shall have a Constitution universally worth expounding.’
Price v. Civil Serv. Comm., 26 Cal.3d 257, 161 Cal.Rptr. 475, 604 P.2d 1365, 1391 (1980) (Mosk, J., dissenting) (quoting William Van Alstyne, Rites of Passage: Race, the Supreme Court, and the Constitution, 46 U. Chi. L.Rev.. 775, 809-10 (1979)).
The way to end racial discrimination is to stop discriminating by race.
Judge Mosk, of course, was generally seen as a leading liberal California Supreme Court Justice. William Van Alstyne had been on the ACLU National Board of Directors until three years before he published his Chicago law review article. Many Federalist Society members do share the view (as, polls suggest, do many Democrats) — but the quote's origin seems to be pretty solidly outside the Federalist Society.
On NRO's The Corner, Andrew McCarthy, Director of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies, comments on the Goldsmith-Katyal proposal for a domestic terrorism court, and highlights his own proposal for a "National Security Court," outlined in this paper, and previously discussed here. As summarized by McCarthy:
The paper undertakes to analyze the history of, and problems with, treating terrorism as a criminal justice issue, as well as the difficulties of fitting its legal issues into the war paradigm. It proposes a hybrid: The creation of a new court that takes the best features of both systems, does not grant terrorists full constitutional rights, but has enough safeguards that other countries (in whose territories terrorists are likely to be apprehended in the future) would be more willing to extradite detainees to it than they have been to our present military system.
Roberts, Blackmun, and the Rhetoric of Affirmative Action Cases:
An editorial in the New Republic suggests that the end of Chief Justice Roberts' opinion in the recent Seattle school case — that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race"-- is some kind of special message passed among elite Federalist Society members. The editorial states:
Today, the view lives on in elite organizations like the Federalist Society, with which Roberts has long been affiliated. Indeed, the much-cited coda to Roberts's opinion--that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race"--is lifted almost verbatim from a 2005 dissent by circuit court judge Carlos Bea, also a Federalist Society booster, which itself recalls a slogan favored a decade ago by former solicitor general Theodore Olson, another Federalista.
Did this phrase really originate among Federalist Society members, passed on from Olson to Bea to Roberts? I had viewed it as a pretty obvious play on Justice Blackmun's famous line in Bakke that "[i]n order to get beyond racism, we must first take account of race." Maybe my reaction is idiosyncratic, but I saw Roberts' phrase as a direct response to Blackmun.
Here was the surrounding passage in Justice Blackmun's Bakke opinion:
I suspect that it would be impossible to arrange an affirmative-action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently.
Given Roberts' position, inverting Blackmun's phrase strikes me as a pretty obvious rhetorical move. The power of Blackmun's phrase is that it seems to state a contradiction, pushing the reader to appreciate why the author sees the apparent contradiction as necessary. It takes the form, "In order to do X, we need to do anti-X." Roberts responds to Blackmun by taking out the contradiction. The new form becomes, simply, "The way to do X is to do X." Obviously different people will disagree on which side is right, but I'm puzzled by TNR's suggestion that the rhetorical point has somehow been passed along among Federalist Society members (presumably in secret rituals held in underground temples).
A final thought: I vaguely remember reading that Blackmun probably took the phrase from a magazine article on affirmative action published shortly before Bakke. Does that ring a bell with any readers? I might have seen that in Linda Greenhouse's Becoming Justice Blackmun, but I don't have the book handy to check on it. (Hat tip: Howard)
Good Summer TV:
I recommend Burn Notice on USA. It is a surprising reprise of The Equalizer from the 1980s. The Equalizer, Robert McCall (played by Edward Woodward ["Breaker Morant"]), was a former spy for the CIA who quit in disgust and used violence, technology and his clandestine talents, along with a motley assortment of free lance spooks to help ordinary folks in New York City who were being victimized by the evil and powerful. Two subplots concerned the extent to which McCall kept getting pulled back into his espionage past, and his conflicts with his son, Scott. Watching the Equalizer now (it is being rerun on Universal HD) is also like a time capsule of what New York City used to be like before Rudy.
Burn Notice is about Micheal Weston, a spy who is kicked out of the CIA (for reasons we don't yet know), deprived of all his assets, and forced to eke out a living in Miami. He does this by using violence, technology and his clandestine talents, along with a motley assortment of free lance spooks to help ordinary folks in Miami who are being victimized by the evil and powerful. Two subplots concern his effort to find out who "burned" him so he can get back into the spy game, and his conflicts with his cigarette smoking mother (played by Sharon Gless who obviously does not smoke) and his former ex-IRA terrorist girlfriend. Like Miami Vice in the 1980s, Burn Notice also showcases modern Miami.
Both shows are violent for the TV of their times. But while The Equalizer adopted an edgy and dark mood (though in reruns 20 yeas later it comes across a bit cartoonish), Burn Notice is more light-hearted--a teeny bit like the pre-Daniel Craig James Bond films, though not offensively unfunny and silly as Bond films became so maybe I should not have offered that comparison; after all, I am recommending Burn Notice. The USA Network is rerunning the first 3 episodes of Burn Notice the morning of March July 21 @ 9:00am-12:30am, so set your DVRs to catch up with this engaging new series. (You will also need to record the fourth Episode now playing.)
BTW have I mentioned how much I love the new Casino Royale, the best Bond film since Goldfinger? (Better than Thunderball.) Daniel Craig is now the second best Bond, maybe even (gasp) tying with Sean Connery in his own gritty take on the character. But more importantly, Casino Royale abandons most all of the Bond films' insufferable cliches, and returns the series, not to the Sean Connery films, but to the Ian Fleming novel. Kudos to the producers and very highly recommended in hi def DVD. But I digress.
For those who remember The Prisoner with Patrick McGoohan--I watched it in first run as a summer replacement series broadcast here after it had been canceled in the UK, having previously loved Secret Agent--Showtime offers the British-made Meadowlands. The Prisoner concerned a bunch of political prisoners held in "The Village" on an island (but really filmed in a manicured resort on the English coast of Wales). The prisoners were all electronically monitored 24/7 by technical means that were science fiction in the 1960s, and cannot escape. Meadowlands concerns a bunch of former criminals in a witness relocation program that houses them in a clean manicured suburban English village and who are all electronically monitored 24/7 by the same sorts of means used today to monitor ordinary British citizens. Of the episodes I Tivo'd, I have only watched the premiere, so I cannot be sure where this is going yet and if I will stick with it. I am unsure of the writing and whether the plot will be of lasting interest, but it is very nicely photographed and worth a shot, if only for the sake of old times.
Finally, on FX, the fourth season of Rescue Me-- which for my money ties with The Wire on HBO for best TV drama still in first run--is awesome. Get the DVDs of seasons 1-3 if you have not watched this series from its inception. In season 4, the writing and performances remain superb. VERY highly recommended.
In a follow-up to the work I've co-authored on Term Limits for Supreme Court Justices, I've been looking at the effects of any US Supreme Court retirements on the overall age and tenure distribution on the Supreme Court.
Many people assume that, if a Democrat wins the White House in 2008, there might be one or more resignations from the more liberal half of the Court in 2009 or 2010. Although it might seem that the oldest member of the Court, Justice John Paul Stevens (age 87), would be the likeliest to step down, those with better sources of information than I have say that Justice Stevens is still extremely bright and funny and appears to outsiders to be in excellent health. Since physically and mentally he appears to be going very strong, some observers have speculated that Justice Stevens may well stay on the Court at least until he breaks Justice Douglas’s record as the longest serving Justice in the summer of 2012.
(I confess that I am happy to hear how well Justice Stevens is doing since, partly for personal reasons, Stevens is my favorite sitting Justice. Beyond his general brilliance, he has written by far the best opinions in an area of my scholarly interest, extortion law, and he has personally been the kindest Justice to me both privately and (from what I’ve been told) in public comments. By the way, my next favorite would come from the conservative wing of the Court.)
Among the other Justices roughly on the liberal side on the Court, Justices Ruth Bader Ginsburg and David Souter are being talked about as possibly retiring or taking senior status if a Democrat wins the White House. Justice Ginsburg, who is 74, strikes some observers as somewhat frail in comparison with other members of the Court. As to Justice Souter, there would be no particular reason for Souter to consider leaving the Court anytime soon, but his natural modesty may lead him to find retirement attractive in a few years, having already exceeded both the 1790-2006 mean (16.2 years) and median (15.3 years) terms on the Court.
In 2005, political scientist Kevin McGuire had falsely [i.e., incorrectly] claimed in print that if Justices O'Connor and Rehnquist left the Court (as they soon did), the median current tenure on the Supreme Court would drop to normal levels. Since in any given year the median justice would tend to be just past the mid-point of his judicial tenure on the Court, the median years of service in any given year has historically been about 9.2 years. (The median years of eventual tenure on the bench has been 15.3 years.)
The median tenure on the 2005 Court just before Chief Justice Rehnquist died was 17.5 years. After Justice Alito joined the Court at the end of January 2006, the median did not drop to the historical norm of around 9 years, but rather only to 14.3 years. So McGuire was wrong. Except for a few months in 1937 (when the median tenure of the then-sitting justices reached 14.4 years), these few months in early 2006 were still the highest median years of service on a current Court from the 1870s through the 1970s.
Now, a year and a half later, the median tenure on the Court has increased to 15.7 years. If there are no retirements until the summer of 2009, the median tenure will grow to 17.7 years, above even the level just before C.J. Rehnquist died.
Libertarians and the War:
In today's Wall Street Journal (available for free here on OpinionJournal.com), I have an op-ed on Libertarians and the War in which I note that libertarian first principles do not dictate a single stance towards the war in Iraq and that libertarians are indeed divided on the issue. Here is a portion from the middle:
. . . Does being a libertarian commit one to a particular stance toward the Iraq war? The simple answer is "no."
First and foremost, libertarians believe in robust rights of private property, freedom of contract, and restitution to victims of crime. They hold that these rights define true "liberty" and provide the boundaries within which individuals may pursue happiness by making their own free choices while living in close proximity to each other. Within these boundaries, individuals can actualize their potential while minimizing their interference with the pursuit of happiness by others.
When it comes to foreign policy, libertarians' severe skepticism of government planning in the domestic arena carries over to the government's ability to accomplish anything positive through foreign aid, whether economic or military--a skepticism they share with most Americans. All libertarians, I suspect, oppose military conscription on principle, considering it involuntary servitude. To a libertarian, any effort at "nation building" seems to be just another form of central planning which, however well-motivated, is fraught with unintended consequences and the danger of blowback. And, like most everyone, libertarians oppose any war of aggression. In all these regards, Mr. Paul is a mainstream libertarian.
But like all libertarians, even Mr. Paul believes in the fundamental, individual right of self-defense, which is why libertarians like him overwhelmingly support the right to keep and bear arms. And most also believe that when the territory of the U.S. is attacked militarily, the government--which claims a monopoly on providing for national defense and extracts billions of tax dollars for this purpose--is justified in using the military in self-defense. For this reason, many libertarians (though not all) who now oppose the war in Iraq supported U.S. military actions against the Taliban regime in Afghanistan, which had aided and harbored the al Qaeda network that organized the 9/11 attack.
But here is the rub. While all libertarians accept the principle of self-defense, and most accept the role of the U.S. government in defending U.S. territory, libertarian first principles of individual rights and the rule of law tell us little about what constitutes appropriate and effective self-defense after an attack. Devising a military defense strategy is a matter of judgment or prudence about which reasonable libertarians may differ greatly. . . .
The point of this essay is not to debate the merits of the Iraq war but to inform those who may be unaware that libertarians can come down on either side of this issue.
Whenever I write about the dangers of political ignorance, some people misinterpret me as claiming that ordinary voters are "stupid;" occasionally, I am even accused of having "contempt" for them.
This is an understandable reaction. However, it ignores the important distinction between ignorance and stupidity. My argument is not that voters know too little about politics because they have low intelligence and thereby behave irrationally. To the contrary, my claim is that investing little or no time in learning about politics is perfectly rational and intelligent behavior for most individual voters. I have made this claim (which in its basic form is not my original idea) in all my academic writings on political ignorance, most recently here. Because an individual vote has almost no chance of determining the outcome of an election, a person whose only reason to acquire political information is to make sure that the "best" candidate wins is quite rational to invest very little time in learning such things.
We are all inevitably ignorant about a vast range of matters because they don't interest us much, and because we have little or no incentive to learn about them. For most people, politics falls into that category. The same goes for many other bodies of knowledge, such as theoretical physics or - for me - many parts of pop culture. Unfortunately, political ignorance is a classic example of a situation where rational and intelligent behavior by individuals leads to poor collective outcomes. It is a collective action problem similar in structure to that which causes air pollution or overuse of common pool resources. A person who drives a gas-guzzling car that contributes to air pollution is not necessarily stupid or irrational; he simply recognizes that there is very little chance that getting rid of his one vehicle will actually have a real impact on the broader problem. The same goes for those who contribute to what me can call "political pollution" with their rational ignorance about politics.
Various arguments can be made against my thesis, and I have tried to address them in my writings. However, it is not correct to assert that my claims are based on the assumption that ordinary voters are "stupid" or on "contempt" for them. To the contrary, the assumption is that they are rational and that their ignorance is primarily the result of perfectly reasonable decisions about how best to allocate their time and effort.
Finally, it is worth noting that I do in fact have great confidence in the ability of ordinary people to make good decisions in settings where they have strong incentives to acquire information and evaluate it rationally. That is a major reason why I have defended giving broad rein to consumers acting in free markets and civil society, opposed "libertarian paternalism," and advocated "foot voting."
The subject of the memo is Nixon's concern that the public didn't view him as a
"warm" human being. This, in Nixon's view, was extremely unfair. For example, it ignored his kindness in calling sick people "even though they no longer mean anything to anybody." Moreover, Nixon complained, he didn't get credit for not treating his staff and cabinet members like "dirt under my feet." "No President could have done more than I have done in this respect," he boasted. Nixon whined that the press was ignoring "innumerable examples of warm items -the way we have gone far beyond any previous President in this century in breaking our backs to be nicey-nice to the Cabinet, staff, the Congress, etc,, around Christmastime." After listing these and other "innumerable examples" of his (or rather "our") good deeds, Nixon was careful to note that "one of the great factors that should be emphasized is that the President does not brag about the good things he does for people." (emphasis in the original). It's worth noting that Nixon uses the royal "we" to refer to himself throughout most of the memo.
However, the memo is not entirely unintentional self-parody. A few of the things Nixon said are scarily accurate. Nixon's desire to create an image of warmth to complement his reputation for "efficiency" was the result of his realization that "effeciency and competence have precious little effect in determining whether Presidents are re-elected" (pg. 1 of the memo). Presidents who want to stay in office, Nixon explained, must also create a positive "mystique" about their personality. This statement is an exaggeration, but has important elements of truth. Indeed, Nixon's own landslide reelection in 1972 despite the disastrous nature of his policies (detente, wage and price controls, policies that helped cause eventual defeat in the Vietnam War, proposing massive expansions of the welfare state that even a liberal Democratic Congress thought unwise enough to reject) is Exhibit A in the argument that good policy is often not the best way to win and hold on to political office.
And, though Nixon never quite succeeded in fooling the public into believing he was a "warm" human being, he did successfully pose as an opponent of racial preferences, while actually establishing the first large-scale affirmative action programs (which angry white voters blamed on the Democrats, as Nixon had intended). He also succeeded in portraying himself as a conservative despite pursuing the most liberal policy agenda of any post-World War II president (on both of these points, see historian Joan Hoff's book Nixon Reconsidered; on affirmative action see also Hugh Davis Graham's excellent book. Ironically, Nixon found it easier to deceive people about the nature and consequences of his policies than about his personal "warmth."
UPDATE: I have corrected some poor phrasing that made it seem as if I meant to say that the Vietnam War was already lost by November 1972. It was not, but Nixon's policies on the War had by then helped put us in a position where eventual defeat was highly likely.
UPDATE #2: To further clarify, my argument is not necessarily that Nixon was worse than Democratic candidate George McGovern in 1972, though it is far from obvious that he was better. Rather, my claim is that Nixon and others had succeeded in persuading the public into supporting a disastrous set of policies that, by 1972, were embraced by the nominees of both parties. The options before the public in 1972 were both deeply flawed. But that fact itself was in considerable part caused by successful manipulation of political ignorance during previous years.
UPDATE #3: Having thought about this post some more, I think the last part of it goes too far in attributing Nixon's political victories too exclusively to political ignorance. The situation during the Nixon era was more complex than that, too complex to try to analyze in a small part of a blog post. I still think, as Graham and other scholars have documented, that Nixon did try hard to manipulate ignorance and met with some success. And I still believe that Nixon's policies were severely flawed - probably more so than those of any other post-WWII president. However, the Nixon record is too complicated to attribute primarily to one cause, and definitely too complicated to deal with in a short fragment of a blog post.
Richmond attorney Cullen Seltzer rises to the defense of U.S. Court of Appeals for the Ninth Circuit in Slate:
As proof of the 9th's judicial failings, the critics generally stress the court's extra-high rate of review and reversal by the Supreme Court. The numbers, though, tell a less damning story than the alarmist portrayals of the court. . . .
yes, 9th Circuit cases were disproportionately represented in the Supreme Court. Since caseload and population would predict a review rate of 18 percent to 20 percent, the justices heard between one and a half times and twice as many cases from the 9th as would have been expected. But because the Supreme Court's docket is small, the number of "extra" cases from the 9th is also small: nine for the last term. That's a substantial part of the Supreme Court's docket, which totaled 73 cases last year, 64 of them from the federal courts of appeals. But nine cases represents only 0.1 percent of the 9th Circuit's 6,387 on-the-merits decisions for the 12 months ending in September of 2006. That's a fair measure of judges going nutty only if you think that 0.1 percent is statistically interesting. . . .
let's look at how often the Supreme Court decides that the 9th got it wrong. Last term, the Supreme Court's reversal rate for 9th Circuit cases was 90.5 percent. Yikes—that's huge! But wait, for on-the-merits cases, the Supremes reversed the 3rd and 5th Circuits all of the time last term. Cases from state appellate courts fared no better: They also had a 100 percent reversal rate. Overall, this past term the Supreme Court reversed 75.3 percent of the cases they considered on their merits. The pattern holds true for the 2004 and 2005 terms as well, when the Supremes had overall reversal rates of 76.8 percent and 75.6 percent, respectively. For those years, the 9th was reversed 84 percent and 88.9 percent of the time, or about a case or two more each year than it would have been if it had conformed to the reversal rate of the other circuits. How do one or two cases a year add up to a court run amuck?
It's also not necessarily the case that a higher reversal rate by the Supreme Court means that an appeals court is doing a bad job. The lower court judges may be bad at predicting what the Supreme Court will approve or disapprove. Or they may not care: They may want to test an idea or take a stance that's at odds with the current direction of the Supreme Court. Or they may perceive that existing law, as previously dictated by their own circuit or by earlier Supreme Court decisions, requires a certain outcome, even as they understand the justice may change that law if they take the case for review.
In 2005, European political elites were disappointed by the rejection of the proposed European Constitution in referenda in France and the Netherlands. Today, European leaders are working on a way to reverse that result. How? By exploiting political ignorance. As the EU Observer explains (hat tip: Daniel J. Mitchell):
The new EU reform treaty text was deliberately made unreadable for citizens to avoid calls for referendum, one of the central figures in the treaty drafting process has said. Speaking at a meeting of the Centre for European Reform in London on Thursday (12 July) former Italian prime minister Giuliano Amato said: “They [EU leaders] decided that the document should be unreadable. If it is unreadable, it is not constitutional, that was the sort of perception”. …Mr Amato, who is now minister of the interior in Italy, has been a central figure in all stages of the year-long process of writing a new constitution for Europe....
Following two years of ‘reflection’ [after the Constitution's defeat in 2005], Mr Amato headed the 16-strong group of politicians which prepared a simplified version of the document. Unofficially known as the “Amato Group” the group stripped the rejected constitution of its constitutional elements - including the article on the EU’s symbols. But the main elements of the original constitution were kept in.
The article points out that the Amato Group hoped that an unreadable document labeled as a "treaty" rather than a Constitution would not be perceived as something "new" by voters, and therefore would not be required to go through referenda that might lead to its rejection (as happened in 2005). In other words, the Group's strategy for getting the Constitution accepted by voters is to 1) change some of the verbiage so that it will no longer look like a Constitution (while keeping the substantive provisions the same), and 2) make the document as "unreadable" as possible, thus ensuring that voters won't understand what it will actually do if enacted.
Obviously, such a strategy is unlikely to work with a well-informed electorate. Even if voters in such a hypothetical electorate didn't understand the fine points of proposed legal changes, they would at least know enough not to be fooled by cosmetic changes in nomenclature, and to be suspicious of documents deliberately drafted so as to be "unreadable." In reality, however, most voters fall far short of this ideal. As I have explained in great detail elsewhere(see e.g. here and here), they have strong incentives to be rationally ignorant about politics and to do a poor job of evaluating the political information they do know.
The EU Observer quotes one of the Amato Group's critics who denounced them for showing "a total contempt for voters." The Group may well be guilty of that. But, given the reality of rational political ignorance, its ploy might work, and its "contempt" may turn out to be justified.
UPDATE: Most of my work on ignorance is based on US data. However, the more limited European data we have don't paint a picture much different from the widespread political ignorance that exists in this country. For example, this paper by British political scientists shows that the overwhelming majority of British voters do not know the relative positions of the country's major political parties on key issues. This article finds similar patterns of apathy and political ignorance among European and American youth. This 1999 article found that some 2/3 of Western Europeans have little or no knowledge of basic foreign policy issues. The Amato Group is therefore on safe ground in counting on European political ignorance to help promote their agenda.
Free Speech, Content-Based Laws, and Legislative Motives:
As I discussed earlier, First Amendment precedents generally makes conveying facts and opinions into a constitutionally immunized activity. Normally, the government may punish people for causing various harms, directly or indirectly. But it generally may not punish speakers when the harms are caused by what the speaker said -- by the persuasive, informative, or offensive force of the facts or opinions expressed (unless, of course, the speech falls within one of the First Amendment exceptions, such as incitement, false statements of fact, threats, and the like).
This is, of course, quite compatible with the Court's general jurisprudence of content-based restrictions; it just equally covers laws that are content-based as applied and laws that are content-based on their face. And this principle makes sense, because a law that's content-based as applied can restrict speech as much as a law that's content-based on its face. Moreover, such a law is indeed punishing the "speech element" of the communication rather than some "nonspeech element," see U.S. v. O'Brien.
This principle is in some tension, however, with claims (such as those made by Dean Elena Kagan and Professor Jed Rubenfeld) that the First Amendment is chiefly aimed at preventing government actions that are motivated by a desire to suppress speech. In the examples I've given, the lawmakers may have genuinely wanted to prevent a certain kind of harm, and may have been quite indifferent to whether that harm is caused by speech or by conduct. The drafters of the Espionage Act, for instance, might have sincerely wanted to punish all interference with military recruitment. But whether the Act was well-motivated or not, it should have generally been unconstitutional when applied to interference by persuasion.
In some of the examples, one can argue that the law is open to improper government motivations in its enforcement. For instance, the "outrageousness" test in the emotional distress tort, the "offensive conduct" test in breach of the peace laws, and the "offensive work environment" test in workplace harassment law are quite vague. Prosecutors, judges, and juries might well interpret them narrowly when they agree with the speech, and broadly when they disagree with the speech.
But in other situations, the law is pretty clear. Public speech that advocates draft resistance does seem likely to obstruct recruitment. A journal article that explains how fingerprint recognition systems can be evaded does seem likely to facilitate certain crimes by some readers. If applying the law to such speech would violate the First Amendment, the reason must flow from something other than the government's motive, which may well be quite pure.
Prosecutors may still have discretion in deciding whom to charge under those laws, and they may exercise that discretion out of a desire to suppress certain viewpoints, rather than to evenhandedly prevent the harm that the law is aimed at preventing. But that risk is equally present for any law that may be applied to speech, including generally applicable laws that are both speech-neutral on their face and content-neutral as applied.
So, if the cases I've discussed are right, then the constitutional problem lies in the law's being content-based as applied -- in its punishing speech because of the persuasive effect of the speech -- and not in the government's being motivated by a desire to suppress speech rather than to prevent harm. Though the Supreme Court has at times said that "[i]n determining whether a regulation is content based or content neutral, we look to the purpose behind the regulation," it has also acknowledged that "while a content-based purpose may be sufficient in certain circumstances to show that a regulation is content based, it is not necessary to such a showing in all cases." The better formulation is the one the Court has often used: A content-neutral law is one that is "justified without reference to the content of the regulated speech" -- and a law that is content-based as applied is indeed justified, in that application, with reference to what the speech communicates.
Tomorrow: More on why content-based speech restrictions are indeed generally more troublesome than content-neutral restrictions.
Illegal To Use Nonlethal Self-Defense If You Can Safely Retreat?
A substantial minority of American states allows people to use lethal force in self-defense (against a reasonably perceived threat of death, serious injury, rape, or some other serious crimes) only when the person can't avoid the danger by safely retreating. This requirement — which is sometimes called a "duty to retreat," but is really a limitation of the right to self-defense — generally doesn't apply when the defender is in his own home, and doesn't apply when retreat would be unsafe: For instance, a defender doesn't have to turn his back on an assailant with a gun in order to retreat.
But the theory is that when a safe retreat is possible, the use of lethal force is no longer necessary to avoid the threat, and therefore no longer justifiable. Better that the defender feel obligated to retreat than that even a guilty attacker get killed. Better that the defendant retreat than that there be a shootout which needlessly injures or kills bystanders, or leads to vendettas. And better that the "defender" retreat than kill someone in ostensible self-defense, but an ostensible self-defense that could be used as a cover for outright murder, for instance if the supposed defender really wasn't in danger, but made up the self-defense story (especially likely when the other witnesses to the confrontation are either the "defender"'s buddies or are dead).
The majority of American states disagrees, probably based on a combination of factors: that limiting self-defense this way interferes with defenders' liberty by denying them the right to stay where they have the right to be and at the same time defend themselves against illegal attack; that limiting self-defense this way interferes with defenders' dignity by forcing them to run away from danger; and that in practice it's so hard to determine when retreat is really safe that it's better not to second-guess defenders' judgment to stand their ground. In those states, lethal self-defense may be used against a reasonably perceived threat of death, serious bodily injury, rape, and some other serious crimes even when the defendant had the opportunity to safely retreat. My understanding is that some states have recently shifted to the no-duty-to-retreat camp.
But it turns out that in a few states, it's illegal to use even nonlethal self-defense if you can safely retreat. The treatises report that this is a very small minority view; even the Model Penal Code, which firmly endorses not just a duty to retreat but also a duty to give in to certain threats as a limit on lethal self-defense, rejects a duty to retreat before using nonlethal self-defense. Still, it appears that Iowa and possibly Minnesota (plus perhaps a few other states) take this view.
This means that if someone threatens you in a public place — even with just a fistfight — you are not entitled to defend yourself, again even only with your fists, if you are able to retreat safely. Your legal right to stay where you want to stay can thus practically be constrained by any bully who threatens you with a fight, even if you think you could physically defend yourself. Someone doesn't like your being with a date of a different race (or of the same sex) and threatens to beat you up if you don't leave a bar (or a street corner)? You have to leave, or if you stay and he starts beating you you would be guilty of assault if you defend yourself. Someone is just a bully who wants to have the fun of making you do what he asks (which is to get away from him)? Same situation.
A case in point, from an Iowa court [UPDATE: link fixed]: Michael Mette, an off-duty Chicago police officer, was sentenced to 5 years in prison in Iowa for punching Jake Gothard in the face, which led Gothard to fall, hit his head, and be seriously (though apparently not permanently) injured.
Gothard had a blood alcohol level of .270 when he got to the hospital. The judge agreed that Gothard and a friend of his were going after Mette and five of his friends, outside of Mette's house. The judge agreed that "It was reasonable under the circumstances to believe that harm might come to [Mette or his friends]." Mette and his friends were not the aggressors. (They may have behaved badly in one respect, which is by taking Gothard's cell phone out of his hand and leaving it in Jake's mailbox, but the judge didn't seem to conclude that this was what made Mette's later actions unjustified.) The evidence the judge related seemed to say, without contradiction, that Mette had hit Gothard only once, and that Gothard had just "pushed [Mette] at least two times, maybe three."
Yet the judge convicted Mette (who had opted for a trial without a jury) simply because "the defendant failed ... to retreat ... or walk away and call the police about the disturbance. Because of his failure to take these steps, the court cannot find that the self-defense justification is available to permit the striking of [Gothard]."
That seems to me wrong: Mette should not have been under a legal obligation to either (1) leave the street where he had every right to be, or (2) surrender the right to self-defense if he didn't leave the street. Perhaps the result should be different when one is using lethal force, though I'm not sure; and I realize that even seemingly nonlethal punches can end up being lethal (or can end up escalating a fight into something more lethal). But on balance, it seems right that the duty to retreat has been almost everywhere rejected as to nonlethal force: It in effects allows bullies far too much legal authority to constrain people's freedom.
Still, State v. Washington, 160 N.W.2d 337 (Iowa 1968), which seems to still represent Iowa law, does indeed put Mette in precisely that position. See also State v. Baker, 160 N.W.2d 240 (Minn. 1968). Mette is apparently appealing; let's hope Iowa courts will revise or limit the duty to retreat on appeal.
UPDATE: Thanks to commenter ak47pundit for pointing me to a recent Michigan law that generally abolished the duty to retreat, including the duty to retreat before using nonlethal force; I had originally mentioned Michigan as a state in which such a duty might exist, but have since removed that reference.
Earlier today, District of Columbia officials announced that they would file a petition for certiorari in the U.S. Supreme Court seeking review of the U.S. Court of Appeals for the D.C. Circuit's decision in Parker v. Districut of Columbia, in which the D.C. Circuit concluded that the Second Amendment protects an individual right to bear arms and struck down the District of Columbia's handgun ban for infringing upon this right. Lyle Denniston has details on SCOTUSBlog here.
The United States has debated whether to ratify the Convention on the Law of the Sea, otherwise known as the Law of the Sea Treaty or "LOST," for over twenty years. It was opposed by the Reagan Administration, but some Republicans are giving it a second look, adn the Bush Administration is now pushing for Senate Ratification.
Vern Clark and Thomas Pickering argue in today's NYT that LOST makes sense for the United States, particularly on national security grounds.
The treaty provides our military the rights of navigation, by water and by air, to take our forces wherever they must go, whenever it is necessary to do so. Our ships — including vessels that carry more than 90 percent of the logistic and other support for our troops overseas — are given the right of innocent passage through the territorial seas of other states. In addition, the treaty permits American warships to board stateless vessels on the high seas.
The treaty also provides an absolute right of passage through, over and under international straits and through archipelagoes like Indonesia. These rights — the crown jewels of the treaty — did not exist before 1982, when the Convention was concluded. Our security and economic interests are tied directly to these rights. . . .
Our national security interests alone should be sufficient to persuade the Senate to act now. But the Convention also advances the economic interests of our country. It gives us an exclusive economic zone out to 200 miles, with sovereign rights for exploring, exploiting, conserving and managing the living and non-living natural resources of the zone. Coastal states are given sovereign rights over the continental shelf beyond 200 miles if the shelf meets specific geological and other scientific criteria. Under the Convention, our Arctic continental shelf could extend out to 600 miles.
Law professors Jack Goldsmith and Jeremy Rabkin take a decidedly different view, arguing here that the treaty could hamper U.S. counterterrorism efforts. Specifically, they worry that under LOST U.S. efforts to interdict arms shipments could be second-guessed by international tribunals dominated by foreign judges who might be hostile to U.S. interests and opposed to American "unilaterlaism."
Daniel Drezner has more thoughts here, as do the folks at Opinio Juris here.
Economist N. Gregory Mankiw ponders whether the rich pay their "fair share" of federal taxes.
The C.B.O.’s most recent calculations of federal tax rates show a highly progressive system. (The numbers are based on 2004 data, but the tax code has not changed much since then.) The poorest fifth of the population, with average annual income of $15,400, pays only 4.5 percent of its income in federal taxes. The middle fifth, with income of $56,200, pays 13.9 percent. And the top fifth, with income of $207,200, pays 25.1 percent.
At the very top of the income distribution, the C.B.O. reports even higher tax rates. The richest 1 percent has average income of $1,259,700 and forks over 31.1 percent of its income to the federal government. . . .
When the C.B.O. studies the tax burden, it includes all federal taxes, including individual income taxes, payroll taxes and corporate income taxes. In its analysis, payroll taxes are borne by workers, and corporate taxes by the owners of capital. For the richest 1 percent of the population, 9.3 percentage points of their 31.1 percent tax rate comes from the taxes that corporations have paid on their behalf. . . .
None of these calculations, however, say whether the rich are paying their fair share. Fairness is not an economic concept. If you want to talk fairness, you have to leave the department of economics and head over to philosophy.
Congress is considering climate change legislation more seriously than ever before. While there are several legislative proposals in the House and Senate, some of which could be quite costly, none of the bills would make an appreciable impact on future climate change. This is the nub of the climate change problem: Reducing greenhouse gas emissions enough to make a difference will require cuts far greater than anyone is willing to pay for -- and this will remain the case until there are substantial technological breakthroughs to reduce the cost of controlling emissions or sequestering carbon.
Today's Washington Posthighlights the economic aspects of the problem
Here's the good news about climate change: Energy and climate experts say the world already possesses the technological know-how for trimming greenhouse gas emissions enough to slow the perilous rise in the Earth's temperatures.
Here's the bad news: Because of the enormous cost of addressing global warming, the energy legislation considered by Congress so far will make barely a dent in the problem, while farther-reaching climate proposals stand a remote chance of passage. . . .
The potential economic impact of meaningful climate legislation -- enough to reduce U.S. emissions by at least 60 percent -- is vast. Automobiles would have to get double their current miles to the gallon. Building codes would have to be tougher, requiring use of more energy-efficient materials. To stimulate and pay for new technologies, U.S. electricity bills could rise by 25 to 33 percent, some experts estimate; others say the increase could be greater.
Most of the technologies that could reduce greenhouse gases are not only expensive but would need to be embraced on a global scale, scientists say. Many projections for 2030 include as many as 1 million wind turbines worldwide; enough solar panels to cover half of New Jersey, massive reforestation; a major retooling of the global auto industry; as many as 400 power plants fitted with pricey equipment to capture carbon dioxide and store it underground; and, most controversial, perhaps 350 new nuclear plants around the world.
If anything, the Post account understates the costs of meaningful emission reductions, insofar as it relies on Nicholas Stern, author of the the Stern Review. A companion story looks at the combinations of policies necessary to produce meaningful emission reductions.
One important debate in climate change policy today is over which, if any, government policies can meaningfully accelerate the discovery and deployment of new technologies. Some believe adopting a cap-and-trade regime and other emission control technologies will induce technological innovation. Others believe policies that are more focused on technological innovation, as such, would be more effective. What is clear is that without new cost-effective technologies, there will more talk than action on carbon emissions.
Sunday Song Lyric:Boys Don't Cry was always my favorite album by The Cure. The American version of Three Imaginary Boys, it has some of the bands best songs, including the title track, "10:15 Saturday Night," "Plastic Passion," the Camus-inspired "Killing an Arab." This song was assailed in the 1980s as an anti-Arab song, and is rarely played by the band in concert without revisions (such as changing the chorus to "Kissing an Arab" or "Killing Another").
One of my favorite tracks from the album is "Jumping Someone Else's Train." The video isn't much, but it's a fun song that I listened to this morning. The opening lyrics are below.
Don't say what you mean
You might spoil your face
If you walk in the crowd
You won't leave any trace
It's always the same
You're jumping someone else's train
It won't take you long
To learn the new smile
You'll have to adapt
Or you'll be out of style
It's always the same
You're jumping someone else's train
The Ladies Night Case and the Rules for Class Action Lawsuits:
In my last post, I considered the constitutional flaws in attorney Roy Hollender's suit claiming that ladies nights at night clubs are unconstitutional sex discrimination. In this one, I explain why his proposed lawsuit also violates the rules governing class actions. According to the National Law Journal, Hollender is "seeking to be named class representative for all men charged more money or burdened by stricter time restraints than women at [four New York night] clubs over the last three years."
A class action is a law suit where one "named plaintiff" represents the interests of other individuals who are not directly involved in the case, but have suffered from the same allegedly illegal behavior that the plaintiff is seeking to prevent or rectify. Under the Federal Rules of Civil Procedure, a class can only be certified by a district court if it meets the standards set out in FRCP Rule 23. In this case, the crucial requirement is Rule 23(A)(4), which requires the court to ensure that the class representative "will fairly and adequately protect the interests of the class."
Hollender clearly fails to meet this requirement because many of the members of the class in question ("men charged more money or burdened by stricter time restraints than women" at the night clubs in question) actually benefit from these practices. At the risk of belaboring the obvious, a key purpose of ladies nights at night clubs is to benefit (heterosexual) men. Many night clubs and bars become relatively unappealing to men because the male-female ratio is too high, reducing male patrons' chances of picking up a date. By attracting more women, ladies' nights improve the dating odds for male patrons. To be sure, there are men such as Hollender who decry ladies nights as invidious discrimination. But many of the men belonging to the class specified in Hollender's suit probably prefer a night club with ladies night that increases the percentage of female customers to a nondiscriminatory policy that results in a more unbalanced male-female ratio. Many, perhaps the vast majority, of the men in the class Hollender proposes to represent have interests diametrically opposed to the result he seeks to achieve. For that reason, the district court should refuse to certify his proposed class.
Hollender says that "[w]hether this case succeeds or fails, it will result in a much needed victory for men." True enough (except maybe for the "much needed" part). If he wins, men who agree with him will get a "victory," but those who benefit from ladies nights will be harmed. If he loses, the male beneficiaries of ladies nights will have reason to celebrate. Since there are male night club customers with interests on both sides of the suit, Hollender should not be certified as an acceptable representative of this class.
UPDATE: I have corrected a minor but annoying typo in the first sentence of the post.
First, the constitutional point. I will cover the class action issue in a follow-up post.
The Equal Protection Clause of the Fourteenth Amendment clearly says that a "state" may not "deny to any person within its jurisdiction the equal protection of the laws." The Amendment does not ban discrimination by private parties, only that undertaken by states. Over the years, courts have sometimes ruled that private racial or sex discrimination can be imputed to states in cases where the private actor is actually an agent of the government or otherwise closely entertwined with it. However, Hollender is claiming that night club owners who institute ladies' nights are state actors merely because they are regulated and licensed by the government. This theory was specifically rejected by the Supreme Court in the Civil Rights Cases of 1883, which held that the Fourteenth Amendment did not give Congress the power to regulate common carriers, "places of public accomodation" (e.g. - hotels, restaurants) despite the fact that most such businesses were highly regulated often required to have government licenses. In his dissent, Justice John Marshall Harlan strongly emphasized the regulated and licensed nature of the businesses in question, a consideration that failed to sway the majority. Although criticized by many academics, the Civil Rights Cases remain binding precedent, and were reaffirmed by the Court in United States v. Morrison in 2000.
Moreover, there is good reason to believe that The Civil Rights Cases majority was right to hold that licensing and regulation alone do not equate to state action. Almost all important private activities are licensed or regulated to some extent. If Hollender's argument prevails, all would be subject to the same restrictions on ethnic, religious, and sex discrimination as are imposed by the Fourteenth Amendment on government. For example, marriage requires a state-issued license. On Hollender's theory, therefore, the Constitution would forbid individuals from engaging in racial, ethnic, or religious discrimination in deciding whom to marry, since the Equal Protection Clause surely forbids such discrimination by government. If the state bans Jews from marrying non-Jews, that is a clear violation of the Fourteenth Amendment under modern doctrine. Yet if licensing is enough to turn a private action into state action, then a Jew who marries a fellow Jew after rejecting gentile suitors solely on religious grounds would be a state actor engaging in unconstitutional discrimination.
It may be that some extreme forms of licensing or regulation do involve the state so pervasively in private activity as to convert that activity into state action for Fourteenth Amendment purposes. But that cannot be true for all types of regulation and licensing, as Hollender's theory requires.
In reality, many of the Supreme Court's most important Equal Protection Clause precedents striking down laws that discriminate on the basis of sex involved discrimination against men. These include landmark decisions such as Craig v. Boren, the 1976 case that instituted the current "intermediate scrutiny" standard for government sex discrimination, and Mississippi University for Women v. Hogan (1982), an important case that ruled that an all-female state university was unconstitutional.
In the area of race discrimination, the Supreme Court has indeed given somewhat looser constitutional scrutiny to programs that benefit racial minorities as opposed to whites. That is not, however, true of the Court's constitutional scrutiny of programs that discriminate in favor of women relative to those that benefit men (the Courts statutory consideration of affirmative action for women under Title VII of the Civil Rights Act of 1964 is a different matter).
UPDATE: As commenter and lawprof Eric Muller points out, the Supreme Court's 1972 Moose Lodge (which held that a Moose Lodge was not a state actor merely because it had a state liquor license) decision probably undercuts Hollender's position even more clearly than the Civil Rights Cases do.