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Saturday, July 28, 2007

More on the Pedophile Blogger:

Those who want a sense of what the self-described pedophile blogger's site has looked like in the past can see archived pages here. The blogger is obviously a disturbed and disturbing man -- at best someone who has fun scaring the wits out of parents, and at worst a child molester -- but I think it's necessary to see his work to get a sense of what legal responses would be permissible or impermissible.

Most of the pictures aren't included in the archive, which is good for the pictures' subjects but makes it a little harder to evaluate. The one picture I saw, which was purportedly taken in South America, does fit with the media reports that the pictures on his sites have not themselves been pornographic (though obviously they are disturbing and menacing in context).

115 Comments

Brown University Welcomes Duke Rape Case Victim:

Sophomore Reade Seligmann was one of the victims of the false rape case at Duke University. The Brown University lacrosse coach, with support from the school's administration, recruited Seligmann for the Brown team, and he will enroll at Brown this fall. As a Brown Daily Herald article explains, Brown's new coach began recruiting Seligmann "almost immediately" after being hired last August. Although the malicious prosecution had not yet collapsed, the coach talked to people in the lacrosse community who knew Seligmann, and was "absolutely convinced" of Seligmann's innocence. According to the BDH, "Seligmann, who says he always wanted to attend an Ivy League school, chose Brown over the other two or three schools that were interested in him because of how the University treated him. They allowed him to visit the campus when he wasn't even allowed back at Duke."

Three cheers for my alma mater for standing up for truth and justice.

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Case against flying not so airtight

That's the headline of my latest Rocky Mountain News media column, debunking the claim that commercial air travel for long flights causes greater CO2 emissions than would driving a SUV solo the same distance. To the contrary, air travel causes far few per-capita CO2 emissions. Presumably the emissions of most pollutants, such as carbon monoxide, would also be less.

The column also castigates newspapers for running pre-publication reviews of Harry Potter and the Deathly Hallows.

Finally, kudos to Fred Thompson for criticizing the over-federalization of criminal law. Along with Glenn Reynolds, Paul Blackman, and Mike Krause (and sometimes by myself), I've written a variety of articles criticizing over-federalization regarding guns, drugs, and abortion.

Related Posts (on one page):

  1. Case against flying not so airtight
  2. Fred Thompson on Federalism:
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Fred Thompson on Federalism:

Fred Thompson has an interesting (especially by the standards of other writings by politicians) article on federalism (hat tip: Instapundit). Particularly noteworthy is his critique of the overfederalization of criminal law:

Law enforcement in general is a matter on which Congress has been very active in recent years, not always to good effect and usually at the expense of state authority. When I served as a federal prosecutor, there were not all that many federal crimes, and most of those involved federal interests. Since the 1980’s, however, Congress has aggressively federalized all sorts of crimes that the states have traditionally prosecuted and punished. While these federal laws allow Members of Congress to tell the voters how tough they are on crime, there are few good reasons why most of them are necessary.

For example, it is a specific federal crime to use the symbol of 4-H Clubs with the intent to defraud. And don’t even think about using the Swiss Confederation’s coat of arms for commercial purposes. That’s a federal offense, too.

Groups as diverse as the American Bar Association and the Heritage Foundation have reported that there are more than three thousand, five hundred distinct federal crimes and more than 10,000 administrative regulations scattered over 50 section of the U.S. code that runs at more than 27,000 pages. More than 40 percent of these regulatory criminal laws have been enacted since 1973.....

Now, there are plenty of areas in criminal law where a federal role is appropriate. More and more crime occurs across state and national boundaries; the Internet is increasingly a haven for illegal activity. A federal role is appropriate in these and other instances. But today the Federal Bureau of Prisons has quadrupled in size in little more than 20 years.

I fully agree with Thompson's view here. Most currently federalized crimes should either be handled by the states or not be crimes at all (as in the notorious 2006 bill banning internet gambling). More importantly, it's likely that this view represents his real position and is not just the usual political posturing from presidential candidates. After all, cutting back federal criminal law is not exactly a burning issue for voters, and is unlikely to excite the Republican primary electorate.

However, there is a major elephant in this federalism room that Thompson doesn't mention. He is right to note the massive growth in the federal prison population over the last 20 years, but fails to point out that most of that growth is due to the War on Drugs. As I explained here, convicts incarcerated for nonviolent drug offenses make up 55% of the total federal prison population. And it was the War on Drugs that led to the Supreme Court's 2005 decision in Gonzales v. Raich, which largely gutted constitutional limits on federal power. Any serious effort to reverse the federalization of criminal law must include cutting back on the War on Drugs; by comparison, the laws making it a crime to misuse the symbols of the 4-H Club and the Swiss Confederation are utterly insignificant. Is Thompson willing to advocate that? Will he promise to nominate judges committed to overruling Raich? I'm not holding my breath. But if he does, he'll certainly win my endorsement - the same priceless political asset that carried Nancy Pelosi to victory back in November:)!

Related Posts (on one page):

  1. Case against flying not so airtight
  2. Fred Thompson on Federalism:
34 Comments

The Pedophile Blogger:

Today's New York Times has a fascinating (and unnerving) story about a self-described pedophile in Los Angeles who blogs about his exploits in dramatic detail and hopes to increase public acceptance of pedophilia.

unlike convicted sex offenders, who are required to stay away from places that cater to children, in this case the police can do next to nothing, because this man, Jack McClellan, who has had Web sites detailing how and where he likes to troll for children, appears to be doing nothing illegal.

But his mere presence in Los Angeles — coupled with Mr. McClellan’s commitment to exhibitionistic blogging about his thoughts on little girls — has set parents on edge. One group of mothers, whose members by and large have never met before, will soon band together in a coffee shop to hammer out plans to push lawmakers in Sacramento to legislate Mr. McClellan out of business. . . .

Mr. McClellan, who is 45, refers to himself as a pedophile, but says he has never actually sexually touched a child, simply “embraced them in a nonsexual way, mostly in Latin American countries.” He says he has never been convicted of a sex crime, and law enforcement officials in Los Angeles say they know of no convictions.

The story raises some interesting legal issues, and quotes our own Eugene.

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Senator Schumer's Says No More GOP Justices:

Speaking yesterday at the American Constitution Society's National Convention, Senator Charles Schumer said that the Senate was "duped" and "hoodwinked" by John Roberts' and Samuel Alito's confirmation hearing performances and explained that he would "do everything in [his] power to prevent" the confirmation of another justice like John Roberts or Samuel Alito. Here are some excerpts:

Although we have only experienced one full term with both Roberts and Alito on the Supreme Court, it appears that we were not given the most accurate picture of the nominees we confirmed.

After hearing Roberts wax philosophic about judicial modesty at his confirmation hearings, and then reading his calculated decisions furtively defying stare decisis, I can only conclude that we were presented a misleading portrait.

And so, every day, I feel more comfortable with my vote against Chief Justice Roberts.

And every day, I am pained that I didn’t do more to try to block Justice Alito. Every two years, I look back and take stock of my greatest failings and regrets in the past Congress. Without question, my greatest regret in the 109th Congress was not doing more to block Alito. Alito shouldn’t have been confirmed. I should have done a better job; my colleagues said we didn’t have the votes, but I think we should have twisted more arms and done more. . . .

We now have the most conservative Supreme Court in memory. And, as everyone knows, the Justices who are – actuarially speaking – most likely to step down next are the liberal ones.

The Court is, interestingly, at odds with the country. As the Court grows more conservative, the rest of the nation is in the midst of a pendulum swing in the progressive direction.

Unless we are vigilant in our efforts to moderate the Court, that institution will stand in the way of a much-needed and long-overdue swing back to moderation. . . .

[F]or the rest of this President’s term and if there is another Republican elected with the same selection criteria let me say this:

We should reverse the presumption of confirmation. The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts; or Justice Ginsburg by another Alito.

Given the track record of this President and the experience of obfuscation at the hearings, with respect to the Supreme Court, at least: I will recommend to my colleagues that we should not confirm a Supreme Court nominee EXCEPT in extraordinary circumstances.

They must prove by actions—not words—that they are in the mainstream, rather than the Senate proving that they are not.

Here's coverage of the speech from Politico and Reuters. The full text is on-line at the ACS Blog here.

Related Posts (on one page):

  1. Are Democrats Short-Sighted on Judges?
  2. Senator Schumer's Says No More GOP Justices:
65 Comments

Chicken Suit for Solicitation:

Painesville Municipal Judge Michael Cicconetti likes to impose innovative punishments. He ordered three men charged with solicitation to take turns wearing a chicken suit for an hour, while bearing a sign reading "No Chicken Ranch in Painesville," if they wanted to avoid their jail sentences.

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This is Pretty Cool...:

A while back, I liked to collect esoteric libertarian books; in the days before the internet and Amazon.com, there was something cool about finding an obscure book from the early days of the modern libertarian movement.

Unpacking today, I found a 1960 hardcover edition of "This Bread is Mine," by Robert Lefevre, one of early libertarianism's influential and colorful characters. As an added bonus, inside the book is a copy of the Winter 1973 (vol.1, no.1) edition of Lefevre's Journal. As an extra added bonus, an address label inside the book indicates that it once belonged to Howard Buffet of Omaha, Nebraska, Warren's son (also the name of Warren's father, but it turns out there is a note in the book from the bookseller that the book previously belonged to Warren's son).

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Friday, July 27, 2007

Kontorovich at Opinio Juris:

My friend and Northwestern U. Law School prof Eugene Kontorovich is guest-blogging about international law (what else?) at Opinion Juris. A provocative question from Eugene: if Israel agrees to a broad amnesty for convicted Palestinian terrorists with "blood on their hands," will any of the human rights organizations that routinely oppose amnesties for other human rights violators object? (I can guess the answer...)

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Customer Service Update:

Back in January, I had a post about poor customer service. One example was speakeasy.net, my DSL provider. A salesperson had told me that the company wouldn't hold me to my contract if I moved, but that turned out not be true. When I transfered my service in January, I was told that this would not start a new contract period, but be a continuation of the old one. This also turned out not be true. Fortunately, I learned my lesson and got this in writing (actually, email), and have now forwarded the correspondence to customer service.

Another example of poor customer service was Comcast, which first sent an incompetent to hook up our cable, and then set up two appointments that turned out to be no-shows.

On the bright side of things, I had Verizon Fios internet service hooked up in our new home today. The technician was right on time, was polite and helpful, and otherwise made the whole experience pleasant and trouble-free. I doubt Speakeasy is, or will be, much of a player in the long run, but based on admittedly very limited anecdotal evidence, I wouldn't be surprised if Verizon (which also has Fios tv to compete with cable) eats Comcast's lunch.

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Some Good News Out of the Palestinian Territories:

The imminent formation of a liberal new party not tied to Hamas or Fatah, with many prominent supporters:

"This movement would be based on liberal ideas and advancing democracy and human rights in the PA," said Zakut. "The idea is to have a pragmatic movement that would support the idea of two states on the basis of the 1967 borders and PLO platform, while resolving the refugee problem in an agreed-upon manner based on the resolutions of the United Nations and Arab League."

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Police Unclear on the First Amendment,

if this Asheville Citizen-Times report is correct:

A couple who said they were protesting the state of the country by flying the U.S. flag upside down with signs pinned to it found themselves in jail following a scuffle with a deputy Wednesday morning.

Mark and Deborah Kuhn were arrested on two counts of assault on a government employee, resisting arrest and a rarely used charge, desecrating an American flag, all misdemeanors....

Arrest reports show Buncombe County Sheriff’s deputy Brian Scarborough went to the Kuhns’ home on 68 Brevard Road about 8:45 a.m. Wednesday to investigate a complaint of an American flag on display after being desecrated.

State law prohibits anyone from knowingly mutilating, defiling, defacing or trampling the U.S. or North Carolina flags. Lt. Randy Sorrells of the Buncombe County Sheriff’s Office said the Kuhns desecrated the flag by pinning signs to it, not by flying it upside down....

The assault and resisting arrest charges may be proper, depending on what the facts are. But the Constitution does not allow punishment for desecrating the flag. U.S. v. Eichman so held as to a federal law punishing anyone who "mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States." And the North Carolina law, "It shall be unlawful for any person willfully and knowingly to cast contempt upon any flag of the United States or upon any flag of North Carolina by public acts of physical contact including, but not limited to, mutilation, defiling, defacing or trampling," is indistinguishable for First Amendment purposes from the law struck down in Eichman.

Thanks to Matt Caplan for the pointer.

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A Question for Fairness Doctrine Supporters:

If you support a reintroduction of the Fairness Doctrine — which is to say a rule under which broadcasters are obligated to give "each side of [the debate on public] issues ... fair coverage" — how would you envision its being enforced?

1. Multiple sides: For instance, say that a talk show host argues in favor of legalization of drugs. The broadcaster would then have to give time to the pro-drug-war perspective. But what if someone demands time for an intermediate proposal, such as keeping drugs illegal but ratcheting down penalties? Should the broadcaster be obligated only to carry some rival views (i.e., the broadcaster could choose), the most opposed views (i.e., the broadcaster would have to take the hard-core pro-drug-war advocate but not the mid-course advocate), the most popular rival views, all rival views, or all credible-seeming rival views? How should this be decided?

2. Broadcaster choice aimed at discrediting rival views: In particular, if the broadcaster has discretion about which views to choose, what if the broadcaster deliberately chooses the most extremist rival speakers — or for that matter, rival speakers who are just inarticulate or foolish — to present the contrary views?

3. Amount of time: How much time must the broadcaster devote to presenting contrary views — as much time as was given to the original views? Just some modest amount of time?

4. Extremist views: Would the KKK have to be given time to respond to pro-racial-tolerance views? Would jihadists have to be given time to respond to insults of al Qaeda?

Of course, these problems arose before 1987, while the Fairness Doctrine was in operation. The general answer was apparently this, according to Krattenmaker & Powe's Regulating Broadcast Programming:

[A station] can determine largely as it pleases how much time to devote to the differing viewpoints and who and what materials to use in presenting each side. To reduce the need for close and sustained agency supervision of broadcasters, the Commission built into the doctrine a remarkable amount of broadcaster discretion. As a result, surprisingly little balance is necessary to meet the obligation to cover all significant sides of an issue.

Would that approach, in your view, suffice? Would you prefer something more demanding, and, if so, how would you define it, and how would you answer the questions I gave above?

More broadly, I take it that things have changed since the 1980s. Most importantly, the Internet has made it much easier for activists to organize. If a broadcaster broadcasts some anti-gun presentation, I take it that gun rights activists can within hours learn about it, file many demands for time to respond, and even create striking video responses (or perhaps edit them from existing materials).

Where before a broadcaster might have gone only a few demands for response time, now a broadcaster may find itself getting multiple demands daily for nearly every controversial issue it covers. And if a broadcaster appears to be providing only "surprisingly little balance," these same well-organized groups can arrange the filing of multiple complaints with the FCC — again, every time a broadcaster is accused of not promptly responding as to any controversial issue it covers.

There would certainly be lots of incentive for activists in a wide range of fields to get aggressive about demanding response time, and complaining about perceived inadequacies in response time: The activists will feel that they are fighting back against the Bad Biased Media (whichever way they think the media is biased). They will get a chance to get extra airing for their views. And they will suspect that their actions may in some measure deter the Bad Biased Media from expressing those views that trigger the activists' aggressive response.

* * *

In any case, perhaps I'm wrong about the changing environment; but in any event surely any reinstituted Fairness Doctrine would have to confront the questions I raised above in items 1 through 4. If you support the Fairness Doctrine, how would you answer those questions?

87 Comments

Seeking Examples:

A colleague of mine wants examples that would go in these paragraphs (paragraphs that are broken up here for easier reading online):

Businesses often seek to find new applications for existing products. Hummers, the transport of choice of the Governor of California, began as a multipurpose military vehicle known as Humvees. And the commonly prescribed drug for erectile dysfunction, Viagra, was initially designed to treat hypertension. [** Here is where the examples should go, either to supplement or to supplant the Hummers / Viagra examples. **]

Here, we examine whether the dual income tax regimes (that is, the explicit separate taxation of income from capital and income from labor) found in the Nordic countries might provide a useful model for developing countries. We appreciate that transplanting legal regimes or using prescription drugs for other purposes — known as “off-label uses” in pharmaceutical jargon — is often misguided and may result in undesirable and unintended consequences. And the economic, political, and tax environment in the Nordic countries differ greatly from the circumstance in most developing countries.

Nonetheless, while the dual income tax regimes in the Nordic countries were designed specially to address a problem that does not exist in many developing countries, the approach of explicitly providing separate tax regimes for income from capital and income from labor in developing countries may substantially improve the tax regimes of those countries....

Any suggestions? Again, we're looking for examples of products that originally served market or application A, looked like they wouldn't work well for market or application B, but, to many people's surprise, worked just fine for B, though perhaps different reasons than the ones that made them work in A. Please post them in the comments. Thanks!

52 Comments

Child Custody Decisions and the Constitution:

Many comments on the recent child custody thread point out that judges are supposed to decide based on the best interests of the child, and that they may therefore evaluate parents' childrearing decisions in ways that government officials normally don't. And I agree that this is in considerable measure true.

But there should remain, I think, constitutional limits on what judges can do. The Supreme Court's 1984 Palmore v. Sidoti decision is an excellent example: The Equal Protection Clause bars a judge from granting custody to one parent instead of another based on the other parent's having entered into an interracial relationship (or marriage). And this is so even if the judge sincerely (and perhaps even reasonably) believes that a child might face more social problems if the child is reared in a mixed-race family.

Likewise, many state courts have held that judges can't restrict a visiting parent's exposing his children to his own religion, even when the custodial parent is teaching a different religion, at least in the absence of a showing of likely serious harm to the child. A judge may theorize, perhaps even plausibly so, that it's better for children to learn one religion rather than two rival ones. But he can't implement his theory through an order restricting one parent's teachings, since that would violate the Free Exercise Clause.

Several state courts have similarly held that judges can't hold a parent's lack of religion against him in a child custody proceeding -- again, even if the judge sincerely believes that it's in a child's best interests to grow up in a more religious home. The Establishment Clause bars such preferences.

It seems to me these courts are quite right. Indeed, a parent's Due Process Clause right to have custody of the child may have to give way in divorce cases, since both parents can't live apart and at the same time live together full time with the children, and since even joint legal decisionmaking for the child may be impossible when the parents are unable to get along; but this reason for restricting parental rights generally doesn't justify restrictions on Equal Protection Clause, Free Exercise Clause, Establishment Clause, and Free Speech Clause constraints on the government.

Likewise, perhaps even these constitutional constraints must give way when genuinely necessary to prevent likely serious harm to the child, on a sort of "compelling government interest" rationale; I'm skeptical of that in many instances (see my Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU L. Rev. 631 (2006)), but I see the force of the argument. But I don't think that a simple desire to serve the child's best interests slightly better (in the family judge's view) justifies departing from the constitutional constraints.

That's why I'm so troubled when some family courts do prefer the more religious or churchgoing parent over the less religious or churchgoing parent, in my view a blatant violation of the Establishment Clause. That's why I'm troubled when some family courts restrict parents' teaching their children various disfavored ideologies, whether racism, Communism, support for the propriety of homosexuality, hostility to homosexuality, support for the propriety of polygamy, Wiccanism, and so on. And that's why I'm troubled when family courts suggest that parents could be penalized because they don't teach their one-quarter Korean children things that all-white children needn't be taught, or because they don't live in sufficiently "divers[e]" neighborhoods.

A family court judge necessarily has broad power over children's (and therefore parents') lives. It doesn't follow, though, that this power should be entirely free of the Equal Protection Clause, Establishment Clause, Free Exercise Clause, or the Free Speech Clause.

23 Comments

Uh-oh:

From the Albany Times-Union:

Some of the 5,000 prospective lawyers who took the essay portion of the state bar exam online this week fear their efforts have been lost because of a computer glitch....

John McAlary, executive director of the state Board of Law Examiners, said a small number of candidates were affected by the glitches. He was unable to say exactly how many.... The

He said he is confident every essay will be recovered because multiple backups were in place....

Let's hope so. Oh, and speaking of lawyering, note the last two sentences of this paragraph: "Software Secure posted a statement to its Web site Thursday saying the problem was identified and that a tool was created to recover backup files saved during the examination. A company official who refused to identify himself said he was not prepared to comment early today. He would not even confirm the online statement."

Thanks to Tom Klotzbach for the pointer.

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Prof. Ward Farnsworth's The Legal Analyst:

Ward Farnsworth, a friend of mine who teaches at Boston University law school, has just published a new book, The Legal Analyst. It's an excellent book, especially for law students and incoming law students — thoughtful, well-written, and useful.

I'm delighted to say that Ward will be guest-blogging about the book next week. For now, here's a brief summary from the Preface:

The book is a user’s guide to tools for thinking about legal questions. It divides up the world of law according to techniques for thinking about it, then gives lots of examples of how the techniques work — a bit of criminal or tort law here, a bit of contract or constitutional law there, and so forth. In essence I’ve tried to take the most interesting ideas one learns about in law school — or should learn, or might wish to have learned --­ and explain them in ways that are clear and that convey why thinking about legal questions is an exciting, intellectually satisfying activity (or why some of us think so, anyway).

This might sound like a book for law students, or for people heading to law school, and it is indeed meant to help them; when a new recruit asks me what they might find helpful to read during the summer before law school, I’ve never been sure what to suggest, and this book should be a help to them. But it is also meant for anyone else interested in law, professional or amateur. This is the book I would have liked before I went to law school, when I understood almost none of what it explains. It also is the book I would have liked when I got out of law school, at which time I understood about half of it. It even is the book I’d like to have had at various earlier points during my teaching career, as when I wasn’t sure about the meaning of a stag hunt or the conjunction paradox.

See also the Table of Contents and these three sample chapters, all available at The Legal Analyst site.

Disclosure: One of the chapters is adapted from my The Mechanisms of the Slippery Slope.

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The NBA Gambling Scandal:

In a New York Times op-ed piece today, Justin Wolfers, a very smart Wharton Business School professor, argues that legalization of a certain type of betting can reduce the risk of players or referees acting to affect betting outcomes. Wolfers' key assumption is that most gambling scandals involve point shaving but not throwing of games. That is, players take money to do something like miss a shot (or not take one) in the last few seconds when their team is behind by ten points and they are nine point underdogs, or the referee calls a foul on the nine-point favorite with a few seconds left, enabling the underdog to add two points and beat the spread. The solution to this problem is to legalize gambling but only on the question of which team will win the game. This type of bet, sometimes called a "moneyline" bet, gives the gambler who bets on the underdog favorable odds on the bet rather than "points," or a "spread." You can make such "odds" bets rather than "spread" bets in many places, although betting with a spread is much more common in basketball and football. (I believe that moneyline betting is the predominant approach for baseball).

Wolfers' suggestion is clever, and it just might work. Of course, off-shore bookies would still take spread bets, but if odds bets were legal and regulated, perhaps the market for spread bets wouldn't be very big. What is more interesting to me, however, is an implication that Wolfers does not address: if he is correct that nearly all gambling corruption involves only shaving points in a way that doesn't affect who wins, the public shouldn't be too concerned about the current NBA scandal. Sure, it isn't anything to be happy about if the corrupt referee was blowing the whistle (or not) at the end of games in an attempt to manipulate the final score. But this wouldn't fundamentally undermine the integrity of the competition for the vast majority of fans who care principally about whether their favorite team wins or loses. It undermines the integrity of the game for gamblers whose primary interest is whether their team beats the spread, but the NBA doesn't care about fairness to the gamblers. If my team is favored by six points and is up by five with ten seconds remaining, I don't care if the player with the ball throws up a final shot or just holds the ball and lets the time run out, or whether he's trying his best to make that last second shot or not. If Wolfers' tonic will cure the ailment, this itself is proof that the ailment itself isn't very bad.

The big question, then, is whether Wolfers' empirical proposition about the nature of sports corruption is correct. That is, when it happens, does it rarely affect who wins and who loses? The claim strikes me as unlikely. Even if it is true that players rarely are bribed to try to lose (rather than just shave a couple of points), or that crooked referees aren't trying to affect who wins (just the spread), any crooked activity before the last few seconds of a game could well affect the outcome. If we just had odds betting, gamblers might still try to bribe players to miss just a couple baskets or referees to ignore just a couple of fouls throughout the course of the game. This would be enough to give them a betting advantage.

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From Oil Addicts to Alcoholics:

GWU law professor Arnold Reitze, one of the nation's leading experts on environmental law, has an essay in The Environmental Forum arguing that the political scramble to address energy security and environmental pollution from automobiles has led to an unsustainable and unwise fixation on ethanol. The renewable content mandate for gasoline is all about subsidizing corn farmers, not developing desirable alternative energy sources. Reitze's paper now available in SSRN here, and it's worth a look.

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More Junk Social Science:

In a Washington Times op-ed yesterday Gail Heriot and I noted that Congress "has been on a binge diet of junk social science."

Josh Wright provides another example at Truth on the Market--price gouging legislation.

Update:

The second link originally was incorrect. That has now been fixed.


U.S. Attorney Declines Request for Contempt Prosecution:

Via Law.com comes an interesting wire story about a U.S. Attorney declining a federal judge's request to prosecute a lawyer for criminal contempt.

The U.S. Attorney in Birmingham, Ala., on Wednesday declined a federal judge's request to prosecute prominent Mississippi attorney Richard F. Scruggs and his law firm for criminal contempt in a Hurricane Katrina insurance dispute.

U.S. Attorney Alice Martin said in the letter to U.S. District Judge William M. Acker Jr. that "following a serious and thorough review of the facts surrounding this indirect criminal contempt, I respectfully decline to prosecute Mr. Scruggs or his firm."

In his June 15 request, Acker said he would appoint another attorney to handle the prosecution if Martin declined the court's request.

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Ninth Circuit Judges Wary of Split:

The National Law Journal reports from the Ninth Circuit Judicial conference that many of the circuit's judges do not like proposals to split up the circuit.

The Los Angeles Times op-ed that has some judges grousing was written by Vanderbilt University Law School professor Brian Fitzpatrick, who was also a law clerk to 9th U.S. Circuit Court of Appeals Judge Diarmuid O'Scannlain of Portland, Ore., an outspoken supporter of a circuit split.

Fitzpatrick suggested that "it can be shown mathematically that as a court grows larger, it is increasingly likely to issue extreme decisions." . . .

Of the potential for "extremist" decisions in a large circuit, Chief Judge Mary Schroeder said, "You have got to be kidding. We don't appoint the judges, the president does. You don't split up a court because you don't like the decisions it makes." . . .

Schroeder noted in the circuit's annual report issued this week that, at the peak of congressional efforts last year to split the 9th Circuit, 33 of the 47 total active and senior judges signed a statement of opposition to a split.

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Judicial Discussion of Facts as Endorsement of Their Relevance:

I quoted and criticize below an Iowa appellate decision that said (paragrpah break added):

Harold argues that Anjela [who is now age 7 -EV] is a child of one-fourth of Korean heritage and it is important for her to be allowed maximum involvement with her heritage. He contends that Anjela's paternal grandmother, Song, is a Korean and she can expose Anjela to Korean cultures. We recognize the importance of Angela's ethnic heritage.

However, Casey is very supportive to Anjela's relationship with Song and her interests in Korean cultures. At the time of trial, Casey was planning to enroll Anjela in martial arts instruction. She also rehearsed Korean language with Anjela. In addition, the areas where Casey and Harold live have approximately the same amount of diversity. We believe Anjela would have sufficient opportunities to be involved with her ethnic heritage under Casey's care.

My view is that courts ought not take the view that children with some Korean blood ought to be taught Korean culture, or ought to live in places that have "diversity." These factors should not be considered in the best interests of the child analysis, absent extraordinary circumstances (which I briefly discussed in the original post).

Some commenters criticized my criticism, reasoning along these lines: "My reading of the opinion is that the parties argued the issue of being able to expose the child to her ethnic background (including martial arts instruction) and the court simply referred to these arguments in a summary fashion. I strongly doubt the court would have included that reference in its opinion if the parties hadn't made it an issue in their briefs and/or oral arguments." "Everyone is over-reacting. This would be a different matter altogether if the Court's ruling actually had been based on the heritage factor. But it wasn't. The trial court just used a factual finding (i.e., both sides would help foster Korean heritage) to neutralize an argument raised by the losing side (i.e., Korean heritage must be fostered). The bottom line is that the 'heritage' argument failed on its facts, thus rendering moot any discussion of its legal significance."

I agree that courts are often guided by what the parties argue. But it seems to me that if a court discusses a particular fact, it implicitly suggests that the fact is legally relevant, and that the case might have come out differently — not would surely have come out differently, but might have come out differently — had this fact been absent. And if it would be improper (or even unconstitutional) for a court to make such a fact relevant, then the court should be careful not to recite the fact in way that suggests that the fact is relevant.

Consider two analogous passages from hypothetical Iowa Court of Appeals opinions. First:

Harold argues that Anjela is an American and it is important for her to be taught a maximum of patriotic values. He contends that Anjela's paternal grandmother, Song, is a patriot and can expose Anjela to the glory of American greatness. We recognize the importance of Angela's patriotic upbringing.

However, Casey is very supportive to Anjela's relationship with Song and Anjela's patriotic education. At the time of trial, Casey was planning to enroll Anjela in the local Daughters of the American Revolution children's education classes. In addition, the areas where Casey and Harold live have approximately the same amount of strong pro-American feeling. We believe Anjela would have sufficient opportunities to learn patriotism under Casey's care.

Second:

Harold argues that Anjela is a grandchild of Christians and it is important for her to be raised Christian. He contends that Anjela's paternal grandmother, Song, is a Christian and she can expose Anjela to Christianity. We recognize the importance of Angela's being raised in the faith of her ancestors.

However, Casey is very supportive to Anjela's relationship with Song and her interest in Christianity. At the time of trial, Casey was planning to take Anjela to church often. In addition, the areas where Casey and Harold live have approximately the same amount of Christian population. We believe Anjela would have sufficient opportunities to be involved with her religious heritage under Casey's care.

I take it that we'd treat these hypothetical decisions as strongly suggesting that a parent's lack of patriotism and lack of willingness to raise a child Christian (or at least to raise a child in the child's ancestors' religion) would count against the parent in the custody decision. In this particular case, the parent avoided this by being suitably patriotic and suitably open to raising the child Christian. But we'd read this opinion as strongly suggesting that in another case, a parent might lose custody from being insufficiently patriotic or insufficiently willing to raise the child in the right religion.

If you were a lawyer who saw a court decision like this, would you advise your client, "Oh, never mind, if you're raising your child not to value patriotism [or religiosity], and your ex-spouse argues that this is against the child's best interests, a local court would just ignore that. Sure, in this decision the court mentioned these factors, but only in a summary fashion, and only to rebut one side's argument. If Casey hadn't been raising Anjela patriotic or Christian, the court would still have ruled for Casey, and dismissed Harold's arguments as irrelevant."?

Or would you believe that you should say, "It's hard to tell for sure, but it looks like this court thinks that whether a parent is giving the child a patriotic [or religious] upbringing is potentially relevant. After all, it did discuss these facts, rather than just dismissing Harold's arguments as irrelevant; and it ruled for Casey on the grounds that she was teaching the child patriotism [or religion], rather than on the grounds that it doesn't matter whether she was teaching the child this way. So if you want to improve your chances of keeping custody, you'd best show a willingness to teach the child patriotism [or religion]."?

I would say the latter: The court's decision would signal to me that there's a substantial likelihood that a court would prefer parents who are providing patriotic or religious upbringings over those who aren't. And if I'm right, then the same should be said about the real Iowa Court of Appeals decision that I quoted at the start of this post.

One could still argue that it's proper for the court to suggest that parents who teach their quarter-Korean children about their Korean "ethnic heritage" should be preferred (all else being equal) over those who don't want to teach their children this way, though I disagree (for reasons I mentioned in the earlier post). But I don't think the court's discussion can be dismissed as a merely passing reference to the parties' arguments, with no suggestion about the way the court might rule in future cases.

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Thursday, July 26, 2007

Want Custody of Your Quarter-Korean Seven-Year-Old? Better Enroll Her in Martial Arts Class:

From what is otherwise a pretty standard "best interests of the child" analysis in a child custody case, Foster v. Waterman, 2007 WL 2119125 (Iowa App. July 25):

Harold argues that Anjela [who is now age 7 -EV] is a child of one-fourth of Korean heritage and it is important for her to be allowed maximum involvement with her heritage. He contends that Anjela's paternal grandmother, Song, is a Korean and she can expose Anjela to Korean cultures. We recognize the importance of Angela's ethnic heritage. However, Casey is very supportive to Anjela's relationship with Song and her interests in Korean cultures. At the time of trial, Casey was planning to enroll Anjela in martial arts instruction. She also rehearsed Korean language with Anjela. In addition, the areas where Casey and Harold live have approximately the same amount of diversity. We believe Anjela would have sufficient opportunities to be involved with her ethnic heritage under Casey's care.

Seems to me that courts have no business deciding, whether in a child custody case or elsewhere, how much and what sort of a connection a child should have "with her ethnic heritage." Some parents want their children to be closely connected to the culture of the child's ancestors (or of some of the child's ancestors). Others don't much care, because they reject the notion of bonds with ancestral ethnic groups; or they may even want to deliberately sever a link with a culture of which they disapprove. A court ought to remain agnostic between these approaches.

There may be some rare exceptions to this principle (though I'm not positive even about these): Perhaps in some situations there might be some serious evidence that one parent's approach to the child's racial background is against a child's best interests, for instance if a child who looks very different from other children is having serious social troubles as a result, but one of the parents isn't doing anything to try to deal with that. If an older child has herself developed some emotional connection with her ethnic background, and wants to continue that connection, a court might count in a parent's favor that parent's willingness to accommodate the child's preferences. And it may well be in a child's best interests to learn a foreign language, though learning Spanish (even in Iowa) is probably more in the child's interests than learning Korean.

But in general, a court shouldn't take the view that the ethnically quarter-Korean (or for that matter that the full-blooded Korean) should get more (or less) in touch with her heritage, or should live in a more (or less) "divers[e]" neighborhood. And it's just zany for a court to view a parent's willingness to enroll the quarter-Korean child in a martial arts class as remotely relevant to the child's best interests.

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Knowingly Helping People Commit Crimes or Torts:

A few weeks ago, I posted about whether credit card providers should be liable for knowingly facilitating sales of infringing materials. A Ninth Circuit decision said that this did not constitute contributory infringement; Judge Kozinski dissented, saying it did, and I generally endorsed his position, at least as a matter of current law.

Many commenters disagreed, making various arguments. Among other things, they argued that we shouldn't "in effect, force credit card companies to become copyright police ... who have an affirmative duty to expend massive resources surfing the web verifying complaints of copyright infringement"; that the law shouldn't take the view that "preventing infringement should be a primary concern for all unrelated businesses"; that such contributory liability shouldn't exist at least until there's a judicial finding that the recipient of the money is indeed an infringer; and that the credit card companies shouldn't be liable unless they know that the specific transaction they're facilitating is infringing (as opposed to just that the target site is engaged in massive infringement).

These are all plausible arguments, but I wanted to revisit the question by asking a broader question: When should someone be held legally liable for helping others commit crimes or torts? In criminal law, the question is when someone should be guilty of the crimes of "aiding and abetting" or (in some jurisdictions) "criminal facilitation." In tort law, the question is when someone should be liable as an accessory; contributory copyright infringement law is in large measure the application of this general tort law principle.

The theory is that at some point helping someone commit a wrong -- especially a wrong to an identifiable innocent third party -- is itself the commission of a wrong. By threatening to hold you liable we aren't asking you to become the "police," in the sense of someone who is expected to actively try to catch wrongdoers. Rather, we're asking you not to participate in others' wrongdoing. The question is when this is a reasonable demand.

1. Majority criminal law view: Oddly enough, the matter is not fully settled even as to criminal law. The dominant view seems to be that you are liable as an aider or abetter if you (here I quote the Model Penal Code, which isn't far from the majority rule on this point) solicit, aid, agree, or attempt to aid another in committing a crime, with the purpose -- the "conscious object" -- of promoting the crime. This means that if you give a gun, a knife, gasoline, a rope, or whatever else to a criminal with the purpose of helping him commit a crime with the gun, you're committing a crime. But if you simply know that he will likely commit a crime, but don't have the conscious object of helping him (perhaps, for instance, you're selling the goods just like you'd sell them to anyone else, with the sole object of making money from the sale), then you're not guilty.

2. Minority criminal law view: But quite a few jurisdictions do allow punishment even if you merely know that you're helping someone commit a crime, or even if you know that there's a high probability you're helping someone commit a crime. Some jurisdictions do this for all serious crimes, others just for some crimes; and some treat this as aiding and abetting, punishable the same way the aided crime is punished, while others impose a lower sentence. For instance, consider New York Penal Law § 115.00: "A person is guilty of criminal facilitation in the fourth degree [a class A misdemeanor] when, believing it probable that he is rendering aid ... to a person who intends to commit a crime, he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit a felony." Or consider Indiana Code Ann. § 35-41-2-4: "A person who knowingly or intentionally aids ... another person to commit an offense commits that offense." Or see the dictum in People v. Lauria, 59 Cal. Rptr. 628, 633-35 (Ct. App. 1967), which suggests aiding and abetting liability based on mere knowledge that one is aiding a crime would be proper if the crime were serious enough.

Of course, if you have a credible claim that you were forced into this ("I had to sell the knife to the gangster, or else he'd have attacked me himself"), you'd have a duress defense. And this liability would not apply if you're selling a product to the public at large, and you merely know that some fraction of the population -- and you don't know who -- are misusing the product (whether the product is a gun, a knife, a bottle of vodka, a photocopier, or whatever else).

But as a general matter under this view you have an obligation not to help anyone commit a crime, if you know that your actions would help that criminal commit the crime (and knowledge of very high likelihood is probably enough), or maybe even if you just know that it's "probable" your actions would help the criminal.

3. Tort law: The tort law view, as best I can tell, mirrors what is reported by the Restatement (Second) of Torts § 876: "[O]ne is subject to liability if he ... knows that [an]other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other." That's the knowledge-is-enough view that's very close to what Judge Kozinski was urging as to aiding copyright infringement (which is after all itself a tort).

Now note that under all these doctrines, one can be liable even thought there's been no judicial finding that the person you're helping is committing a crime or tort. True, if you're genuinely not sure that the person you're helping will use your help for criminal or tortious purposes, then the "knowledge" requirement isn't satisfied. But you often will be pretty sure -- sure enough to qualify for knowledge. Note that even the criminal law, which is usually more demanding than tort law, tends to conclude that "knowledge is established if a person is aware of a high probability of [the] existence [of a fact], unless he actually believes that it does not exist," Model Penal Code § 2.02(7). "'[K]nowingly' in criminal statutes is not limited to positive knowledge, but includes the state of mind of one who does not possess positive knowledge only because he consciously [i.e., deliberately] avoided it." United States v. Heredia, 483 F.3d 913 (9th Cir. 2007) (en banc).

I also suspect that you wouldn't have to be certain that every single weapon you sell to a tortfeasor is going to be used for tortious purposes. (Maybe that one gun I sold is the one gun he'll keep for purely defensive purposes.) So long as you know that the person to whom you're constantly providing services is routinely using them for tortious or criminal purposes, I expect you'd be liable under either tort law (#3) or the minority criminal law rule (#2; for liability under #1 you'd have to have the purpose of helping commit the crime).

* * *

So that's the big picture, far outside the current debates about copyright infringement. You are generally required by the law not to knowingly helping others commit torts. You are even criminally punishable in some jurisdictions for knowingly helping others commit crimes.

You thus have a duty in all these jurisdictions to organize your affairs so that once you are aware that your conduct is helping particular criminals or tortfeasors, you stop. This imposes some burden on you, including some burden of checking things further once you become aware of a high probability that you're helping someone commit a crime or tort.

Let me then ask people, both at this big-picture level and in the context of financial intermediaries -- such as credit card companies -- who are given very solid evidence that their dealings with someone are helping that person commit a crime or tort. Should entities that help in the commission of such crimes and torts then be liable (civilly or criminally) for so helping? Should it vary materially depending on the crime and the tort? Or should the test turn on something else?

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"Fredo" Gonzales?

As regular VC readers know, I'm a big fan of the Godfather movies and book (see here and here). So I was interested to learn from this post by Eric Muller that President Bush apparently calls Attorney General Alberto Gonzales "Fredo," after the hapless Fredo Corleone, son of the Don and elder brother of Michael. As Muller points out, Michael describes Fredo as having a "good heart" but also "weak, and . . . stupid." The implications for Gonzales are far from flattering.

UPDATE: Eric Muller points out that the post on Gonzales' nickname was actually written not by him, but by his guest-blogger "Shertaugh."

UPDATE #2: I am told by insiders that "Fredo" is short for "Alfredo" (the President's original nickname for Gonzales) and has no apparent connection to The Godfather.

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Big Box Takings:

Duncan Currie of the Weekly Standard has a useful article on the increasing use of eminent domain to acquire land for major "big box" chain stores, such as Costco and Wal Mart. He quotes a letter from Costco Senior Vice President Joel Benoliel defending the practice:

[I]n places like California, Redevelopment Districts with bonding authority and powers of condemnation have been the norm for many decades. Much of urban America has been built using this tool. We don't see any legal or moral wrong in this. The fact is, if we refrained from participating in these deals, our competitors for these sites like Target, Home Depot, K-Mart, Wal-Mart, BJ's, Sam's Club, and many others would take advantage of our reticence, and our shareholders would be the losers. In short, we are not violating laws or any rules of the free market economy. We would be doing exactly that if we refused to participate in these deals when they are offered, while other retailers continued to do so.

Benoliel is right to note that such takings are common practice in many parts of the country, and right also that unilateral restraint by Costco would achieve little, since the "deals" in question would probably just go to Costco's competitors. He is wrong, however, to imply that such takings are necessary to promote economic development, much less that they are necessary to "build" urban America. In reality, they very likely cause more economic harm than benefit, as I have argued in great detail here and here. In addition, they tend to victimize poor and lower-middle class interests for the benefit of politically powerful developers and corporations such as Costco and its rivals.

As a general rule, I'm a fan of big box stores, which give customers excellent value for money. But if they want more land, they should be required to purchase it from voluntary sellers, just like all other businesses should do. If the sellers don't want to sell at a price acceptable to the chain store, that's a strong sign that they value the land more than the store does, and that a forced transfer would therefore destroy more economic value than it creates.

The main objection to this reasoning is the assertion that large, beneficial development projects might be stymied by holdouts. I have rebutted that claim in some detail in this article (pp. 204-10), and see also this excellent Cornell Law Review article by Daniel Kelly. In any event, holdout problems are unlikely to be a significant issue for big box stores because few are large enough to require purchasing property from a large number of owners in order to assemble the needed land.

In most cases, big box takings represent are redistribution from politically weak property owners to the store's stockholders and employees. There is little if any gain to the community as a whole, and often an actual loss resulting from the loss of more valuable land uses.

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Conversion from Islam:

Egypt's Grand Mufti Ali Gomaa — described by Agence France Press as "Egypt's official religious advisor" wrote last week in a Newsweek/Washington Post "On Faith" forum:

The essential question before us is can a person who is Muslim choose a religion other than Islam? The answer is yes, they can, because the Quran says, “Unto you your religion, and unto me my religion,” [Quran, 109:6], and, “Whosoever will, let him believe, and whosoever will, let him disbelieve,” [Quran, 18:29], and, “There is no compulsion in religion. The right direction is distinct from error,” [Quran, 2:256].

These verses from the Quran discuss a freedom that God affords all people. But from a religious perspective, the act of abandoning one’s religion is a sin punishable by God on the Day of Judgment. If the case in question is one of merely rejecting faith, then there is no worldly punishment. If, however, the crime of undermining the foundations of the society is added to the sin of apostasy, then the case must be referred to a judicial system whose role is to protect the integrity of the society. Otherwise, the matter is left until the Day of Judgment, and it is not to be dealt with in the life of this world. It is an issue of conscience, and it is between the individual and God. In the life of this world, “There is no compulsion in religion,” in the life of this world, “Unto you your religion and unto me my religion,” and in the life of this world, “He who wills believes and he who wills disbelieves,” while bearing in mind that God will punish this sin on the Day of Judgment, unless it is combined with an attempt to undermine the stability of the society, in which case it is the society that holds them to account, not Islam.

All religions have doctrinal points that define what it is to be an adherent of that religion. These are divine injunctions that form the basis of every religion, but they are not a means for imposing a certain system of belief on others by force. According to Islam, it is not permitted for Muslims to reject their faith, so if a Muslim were to leave Islam and adopt another religion, they would thereby be committing a sin in the eyes of Islam. Religious belief and practice is a personal matter, and society only intervenes when that personal matter becomes public and threatens the well-being of its members.

In some cases, this sin of the individual may also represent a greater break with the commonly held values of a society in an attempt to undermine its foundations or even attack its citizenry. Depending on the circumstances, this may reach the level of a crime of sedition against one’s society. Penalizing this sedition may be at odds with some conceptions of freedom that would go so far as to ensure people the freedom to destroy the society in which they live. This is a freedom that we do not allow since preservation of the society takes precedence over personal freedoms. This was the basis of the Islamic perspective on apostasy when committed at certain times and under certain circumstances.

This was in turn picked up by Agence France Press and reprinted in the Middle East.

Unfortunately, the Gulf News now reports something different:

Egypt's top cleric yesterday denied in a statement that he had said a Muslim can give up his faith without punishment.

Ali Goma'a, the mufti of Egypt, was quoted as saying in a posting on a Washington Post-Newsweek forum that Muslims are free to change their faith and this is a matter between an individual and God.

"What I actually said is that Islam prohibits a Muslim from changing his religion and that apostasy is a crime, which must be punished," Goma'a said.

The alleged fatwa coincides with an uproar over the case of 12 Egyptians who converted to Islam from Christianity and now want to re-embrace Christianity....

Commentator Ali Eteraz (a fairly left-wing lawyer, if I read his profile correctly) tries to reconcile the two at The Guardian's site:

Conversation with Gomaa's people reveals that his actual quote given to the [Gulf News] newspaper was: "This disobedience can, in some of its manifestations, embody a departure from the general norms ... and a kind of crime that would necessitate punishment."

This direct turn-around, (or guarded qualification if one accepts Gomaa's version of what he said), appeared curious to many. What happened? Does Dr Gomaa think that an apostate should be punished, or does he not?

A close read of Gomaa's Newsweek opinion shows that the answer is "both". The opinion is a serious bit of legal reasoning. On one hand Gomaa indeed eliminates the death penalty for apostasy in Islamic law (by citing Quranic verses dealing with freedom of conscience), which is a major event. However, on the other hand, he grants to the Egyptian "judicial system" the authority to prosecute certain apostates — those that leave Islam in "public" — for the "crime of undermining the foundations of society". He ends up proposing a new criminal cause of action called "sedition against one's society". Sedition is not an Islamic term. It is a secular term that does not exist in the Quran.

Is it the case that Gomaa found a way to affirm penalising public apostasy via the back door? Yes, he did. The question is, why did he use a back door at all? Like thousands of Islamic jurists in the past, he could have easily said that Islam requires punishing apostates and be done with it. Yet he didn't do that. He first said that Islam was against penalising private apostasy, and he then moved to penalise public apostasy because it was a social (and not religious) problem.

Why go to all these lengths?

Simple: Muslim leaders are no longer relying upon religious law — "because God said so" — to justify their religious ends. Instead, they are coming up with what we western lawyers call "value-neutral terminology." I saw this in Pakistan's Women's Protection Bill last year. In order to pull rape cases out of the Shariah courts, reformers created new secular crimes to replace what used to be Shariah crimes. They did so even though the new secular crimes did not qualitatively differ from old religious crimes (ie "fornication" was renamed "lewdness"). This was smart. "Fornication" is a Quranic term backed by Islamic law but "lewdness" is a value-neutral term with no fixed meaning except what a contemporary criminal court decides (and in Pakistan's case, the criminal courts are secular). If, and when, a law against "lewdness" is abolished, abolition wouldn't be considered an assault on religion as it was never a religious term to begin with.

This sort of transubstantiation of religious ideas into secular terminology is the west's original contribution to government, and the backbone of liberalism. Starting at the Enlightenment, western leaders took their appeals to God or religious law, out of lawmaking (even if they secretly did wish to satisfy God or religious law). Even at the height of conservatism in the US, when proposing legislation, the most fundamentalist Christian Congressperson will not invoke Jesus. His or her faith might certainly inform his positions but the Congressperson will seek non-religious ways of winning the argument: patriotism, commerce, public health, or social good. This is what Gomaa is doing with apostasy.

Certainly none of us agree with Gomaa that apostasy be classified as sedition, or even be punished at all; but we must at least appreciate that he tried to assert his position in an explicitly non-religious manner.

Gomaa's Newsweek opinion does not directly advance the rights of apostates as western newspapers initially thought. In political terms it doesn't help apostates at all. It is, however, an opinion that starts, just barely, to separate religion from state. Such a trend will lead to Muslim fundamentalists in the future having to justify their imposition on non-Muslims in "secular" or "value-neutral" terms. That creates a much more even playing-field for non-Muslim minorities in Muslim countries. Further, by taking the imprimatur of Islam out of the discussion, and leaving the crime to be defined by the state, Gomaa, one of the top Islamic scholars in Egypt, has deferred a religious question to Mubarak (and in the future, one hopes to Egyptian democrats). In other words, he has "rendered unto Caesar" - which is a nascent version of separation of religion from state.

Muslims like Gomaa, by pulling Islam out of political debates, can, and are, creating the conditions for liberalism. We should celebrate that while remembering that they will not work at a pace dictated by us in the west.

I'm not sure whether Eteraz's analysis is correct, and whether Gomaa is changing his position or was incompletely quoted by the Gulf News; but I thought I'd pass along this interesting story. Thanks to the Becket Fund for the pointer to the Gulf News and Agence France Press pieces.

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Lawsuit Challenging Qualifications of Deputy Patent & Trademark Office Director:

The complaint is here; it alleges that Deputy PTO Director Margaret Peterlin lacks the statutorily required "professional background and experience in patent or trademark law."

I can't speak to whether the deputy director in fact lacks such background and experience. Her biography doesn't stress much of it, though it points to quite substantial general legal credentials; but according to the Washington Post, patent office spokeswoman Brigid Quinn reported that "Peterlin has 'had direct involvement in oversight of the USPTO and every piece of patent, trademark and copyright-related legislation considered on the House floor over the past five years.'"

I'm more interested in the institutional question here: What should courts do with vague criteria such as "shall ... [have] a professional background and experience in patent or trademark law," criteria that give no instructions about the level of background and experience required? I'm not an administrative law expert, but I'm inclined to say that this is the sort of judgment that is left to the Director (and, indirectly, to the Secretary of Commerce and the President, who can decide to remove the Deputy Director), not to courts. But I'd love to hear what administrative law experts have to say about this, and about other procedural questions that this lawsuit raises.

Thanks to Michael Hall for the pointer.

Related Posts (on one page):

  1. Lawsuit Challenging Qualifications of Deputy Patent & Trademark Office Director Rejected:
  2. More troublemaking Volokhs:
  3. Lawsuit Challenging Qualifications of Deputy Patent & Trademark Office Director:
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Eric Muller Weighs in on Getsy v. Mitchell: Over at IsThatLegal.
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Farm Subsidy "Reform" Bill to Limit Subsidies to Couples Making $2 Million.--

Congress is considering increasing farm subsidies, but limiting the ability of couples making over $2 million a year to collect them:

A prominent San Francisco patron of the arts, Constance Bowles -- heiress of an early California cattle baron, widow of a former director of UC Berkeley's Bancroft library and a resident of Pacific Heights -- was the largest recipient of federal cotton subsidies in the state of California between 2003 and 2005, collecting more than $1.2 million, according to the latest available data.

That is the way U.S. farm programs are designed to work. Five crops -- cotton, corn, wheat, rice and soybeans -- received 92 percent of the $21 billion in federal farm payments last year. The biggest payments go to the biggest farms.

That also is pretty much the way farm programs will continue to work for the next five years under mammoth legislation scheduled today for a House vote.

House Speaker Nancy Pelosi of San Francisco has endorsed the new farm bill, produced by the House Agriculture Committee to run programs for the next five years, as a major reform because it limits annual payments to farmers who earn $1 million a year.

The income limit for a couple would actually be $2 million, because a husband and wife each could collect.

If the bill becomes law, the U.S. Department of Agriculture says the cap will affect just 3,100 farmers, assuming they do not use accounting tactics to reduce their taxable income. Actual payments to farmers would rise over the five years authorized by the bill. The bill is over budget, so Democratic leaders propose a $4 billion tax increase on U.S. subsidiaries of foreign companies to pay for it. . . .

California's top subsidy recipient from 2003 to 2005, Bowles, 88, of San Francisco, collected the $1.2 million in mostly cotton payments through her family's 6,000-acre farm, the Bowles Farming Co., in Los Banos (Merced County). She could not be reached for comment.

Another family member, George "Corky" Bowles, who died in 2005, collected $1.19 million over the same period. George Bowles once ran the farm but lived on Telegraph Hill. A collector of rare books and 18th century English porcelain, he served as a director of the San Francisco Opera and a trustee of the Fine Arts Museums.

The farm is run by Phillip Bowles in San Francisco. Phillip Bowles was on vacation Tuesday and could not be reached. He told KGO television last week that he's no fan of subsidies, but if big cotton growers in Texas get them, so should he.

"Many of these businesses are getting 20 to 30 to sometimes 40 percent of their gross revenues directly from the government," Phillip Bowles told KGO. "I don't have a good explanation for that. Somebody else might, but it beats me."

Economists say they can find no rationale for the subsidies, which started in 1933 as temporary aid for small farmers devastated by the Dust Bowl and the Great Depression. Then, a quarter of Americans lived on farms. Today, less than 1 percent do -- so few that the Census Bureau quit counting. . . .

"If the best the committee could do is say these payments are to help people in need, and we're going to define for farm legislation that somebody's in need if the family makes $2 million a year -- a million for the husband and a million for the wife -- that's a little strange. If these are really welfare programs for the needy, we don't normally cut those off at $1 million. It's more like $20,000."

Among the "farmers" receiving payments are billionaire Paul Allen and former NBA player Scottie Pippen:

Matthew Lesko would be proud. NBA great Scottie Pippen is apparently a farmer. From 2003-2005, Pippen earned $78,945 in government checks for land he controls in Arkansas. That's according to information that will be available tomorrow from the Environmental Working Group, a public interest group that is seeking a better distribution of farm subsidies.

Pippen made about $110 million throughout his NBA career, but let us remind you why he needs this. He lost $27 million in bad investments and, as of February, he owed $5 million to a bank for a dispute with a private jet company. And he just sold a 2.28-acre property with 18,700-square foot mansion sitting on it for $2.95 million. He and his wife paid $4 million for it in 2000.

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The New Court Packing Plan: On the op-ed page of the New York Times, Jean Edward Smith argues that if the Roberts Court keeps on its current path, a future Democratic President and Democratic Congress should consider a court-packing plan and add Justices to ensure a liberal majority on the Supreme Court. This might be necessary, Smith contends, because the Roberts Court has "adopt[ed] a manifestly ideological agenda," "plung[ing] the court into the vortex of American politics" where it now decides political questions rather than the purely legal decisions of the Warren Court.

  Discuss.
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Fundraiser for Lost Pants Defendants:

Peter Lattman reports on a Tuesday night fundraiser for Jin and Soo Chung, the defendants in the infamous lawsuit Judge Roy Pearson over an allegedly missing pair of pants. Lattman reports that the fundraiser produced $64,000 toward the Chungs' accrued legal bills of $83,000.

Lattman also reports that Pearson has indicated that he will appeal the verdict.


Judge Merritt's Puzzling Dissent in Getsy v. Mitchell: I agree with my co-blogger Jonathan that the en banc Sixth Circuit was correct in reversing the panel decision in Getsy v. Mitchell. I realize that different people will disagree about the death penalty. But as a matter of binding law, I don't see this case as even remotely close.

  In my view, the key to the case is that different trials with different lawyers and different juries will often reach different results. The Constitution clearly allows a defendant to be retried and convicted after a first jury hangs; there is no rule that the result on the second trial has to be the same as the result in the first one. Similarly, the Constitution allows one defendant to a conspiracy to receive a death sentence in one trial while another defendant receives a life sentence in another trial. I was quite puzzled by the contrary arguments put forward in Judge Merritt's dissent, and I thought I might blog a bit about them.

  Judge Merritt's main argument is that there is a common law English rule, adopted by the U.S. Supreme Court as a matter of Due Process in Morrison v. California, 291 U.S. 82 (1934), requiring consistent verdicts in conspiracy cases. If two individuals are tried together for conspiracy and the jury convicts one and acquits the other, the convicted defendant must be set free. Judge Merritt reasons that this same principle applies in cases with co-defendants tried separately, at least in death penalty cases, such that that Gentry can't get the death penalty

  I think there are a bunch of pretty serious problems with this argument. First, although this was the English common law rule, it turns out to be the minority rule in U.S jurisdictions today. As Eric Muller has explained, this rule is "now followed in only a few jurisdictions," and "[t]o date, almost every federal court of appeals has either abandoned or severely criticized the rule." The Hobgoblin of Little Minds? Our Foolish Law of Inconsistent Verdicts, 111 Harv. L. Rev. 771 (1998).

  As Eric notes in his article, the one circuit that seems to still follow the rule happens to be the Sixth Circuit. But that shouldn't matter given the standard of review in this case: Under AEDPA, the issue is whether the state court unreasonably applied clearly established Supreme Court precedent, not Sixth Circuit law or law that the Supreme Court might establish some day. Given that, I find it hard to see the relevance of the English common law rule.

  Further, even the Sixth Circuit has recognized that this so-called "rule of consistency" does not apply to separate trials. Here's what the Sixth Circuit said in United States v. Sachs, 801 F.2d 839, 845 (6th Cir. 1986), an opinion joined by Judge Merritt himself:
[I]f coconspirators are tried separately, the acquittal of all other coconspirators does not mandate acquittal as to the remaining conspirator. United States v. Roark, 753 F.2d 991 (11th Cir. 1985). This result is necessary because different juries may hear different evidence; "[t]hat the evidence was insufficient to support a guilty verdict in the one case does not mean that conviction on different evidence in another case was improper." Id. at 996. In other words, it is not necessarily inconsistent for two juries to reach differing results.
  As best I can tell, Judge Merritt has two responses. First, he says that it would be really unfair to not apply the rule in capital cases with separate trials because it would take away a legal defense from capital defendants. Capital defendants are given the extra process of having separate sentencing trials; under the Sachs rule, they will never be able to assert the defense of inconsistent verdicts. According to Judge Merritt, placing defendants in a setting where they cannot assert the defense of inconsistent verdicts "guts" the protections of the rule. If I understand the dissent correctly, Judge Merritt's answer is to expand the rule to make sure defendants can still make the claim even when they are tried in different trials.

  Maybe I'm just missing something, but I find this rather strange. The Constitution gives defendants the right to be free from inconsistent verdicts. It doesn't given them a right to assert a valid claim regardless of whether the facts support it.

  Finally, Judge Merritt places tremendous emphasis on Morrison v. California, 291 U.S. 82 (1934). Judge Merritt asserts that Morrison clearly and unambiguously constitutionally mandated the English common law rule that verdicts in conspiracy cases must be consistent — whether the case involves multiple defendants or not. The constitutionalization of the English rule is so clear, Judge Merritt claims, that it amounts to clearly established U.S. Supreme Court law. But an review of Morrison shows that Morrison does not clearly establish such a rule (as you might guess from the fact that most jurisdictions have rejected it without imagining any constitutional problems). As best I can tell, the relevant passage of Morrison seems to be about the common law requirements of conspiracy rather than the Due Process clause.

23 Comments

Giant Space Aliens Consume Newspaper!

American Media, Inc. announced it will cease print publication of the nation's most informative supermarket tabloid, the Weekly World News, citing "challenges in the retail and wholesale magazine marketplace that have impacted the newsstand." Experts speculate the real reason may be an infestation of giant, blood-sucking earthworms. Thankfully, the WWN website will continue for the time being, however.

20 Comments

Junk Social Science Column:

Today's Washington Times contains my column co-authored with Gail Heriot about the peculiar congressional subcommittee hearing last week where I testified, ostensibly on the subject of "Medical Debt and Bankruptcy."

The column, entitled "Juck Social Science Index," is available here.


Richard Carmona's Political Science:

Earlier this month, former Bush Surgeon General Richard Carmona testified about political interference with his performance as Surgeon General. Carmona sought to portray himself as a medical professional interested in scientific fact who was pressured and obstructed by ideologically motivated political appointees. Yet as Radley Balko reports, Carmona has a political science problem of his own.

It may, indeed, be a fair point to accuse the Bush administration of politicizing science. But Richard Carmona isn't the person to make it. Carmona's entire term as surgeon general has been marked by embracing every last hobgoblin promoted by the public health movement, generally above and beyond what the science says. Sometimes in spite of it.

Balko was unmoved by Carmona's testimony, and thinks the Surgeon General's office today is an inherently politicized post.

The Office of Surgeon General always has been overtly political, a captive of the most hysterical public health activists. Its only real powers are tongue-clucking and finger-wagging, usually about the latest moral panic, lecturing the American public to knock off its bad habits, lest somebody get hurt. Richard Carmona's tenure was no different, which is why it's laughable to hear him lecture someone else about science.

24 Comments

Wednesday, July 25, 2007

Debating Climate Law & Policy at ACS:

On Friday morning, I will be participating in a panel discussion on "Climate Change and Other 'Hot' Topics" at the Fifth Annual National Convention of the American Constitution Society. Other panelists will include former EPA Administrator Carol Browner, Georgetown's Lisa Heinzerling, Douglas Kendall of Community Rights Counsel, and environmental attorney Al Meyerhoff. We will discuss the Supreme Court's decision in Massachusetts v. EPA, other ongoing climate change litigation in the federal courts, state climate change initiatives, and federal policy proposals. I participated in a panel at the first ACS national convention five years ago, and had a rollicking good time. I look forward to another on Friday.

Related Posts (on one page):

  1. Debating Climate Law & Policy at ACS:
  2. Debating the Impact of Mass. v. EPA:
5 Comments

The Getsy Decision:

Jason Getsy was sentenced to death for his participation in a murder-for-hire. Getsy filed a federal habeas petition challenging his death sentence on various grounds, including the fact that John Santine, the man who hired Getsy, only received a life sentence. Though indicted jointly, Getsy and Santine were tried separately. The jury in Getsy's case found him guilty of the murder-for-hire capital specification, but the jury in Santine's case did not reach the same conclusion. This inconsistency in the two separate jury verdicts, Getsy argued, rendered his death sentence unconstitutonal. In August 2006, a divided panel of the Sixth Circuit agreed. Today, however, the entire court, sitting en banc, rejected Getsy's claim, 8-6. [The en banc court also rejected Getsy's other habeas claims, including allegations of judicial bias and ineffective assistance of counsel at sentencing.]

Judge Gilman, who dissented from the initial panel decision, wrote the majority opinion rejecting Getsy's claims. As Gilman summarized:

At oral argument, Getsy’s counsel conceded that Getsy’s death sentence was not arbitrary or disproportionate at the time that it was imposed. Instead, Getsy contends that his sentence became unconstitutional only later when a different jury sentenced Santine to life imprisonment for his role in the same offenses. According to Getsy, Furman v. Georgia, 408 U.S. 238 (1972), Gregg v. Georgia, 428 U.S. 153 (1976), and their progeny establish a duty on the part of the Ohio Supreme Court to “correct this arbitrary and capricious sentence.” This argument, in our opinion, advocates a novel constitutional rule that Supreme Court precedent simply does not support, let alone dictate.

Getsy accurately asserts that the fractured majority holding in Furman has come to stand for the general principle that the arbitrary and disproportionate imposition of the death penalty violates the Eighth Amendment. . . . Proceeding from this abstract principle to the specific conclusion urged by Getsy—-that his sentence was unconstitutionally arbitrary or disproportionate in relation to that of Santine—-necessarily entails at least one of two additional premises: (1) that the Eighth Amendment requires comparative proportionality, or (2) that a rule of consistency applies regarding death-specification verdicts among separately tried coconspirators. These premises, however, have been disclaimed both by this court and by the Supreme Court.

Eighth Amendment proportionality, as defined by the Supreme Court, refers “to an abstract evaluation of the appropriateness of a sentence for a particular crime.” Pulley v. Harris, . . . Proportionality as defined by the Supreme Court evaluates a particular defendant’s culpability for his crime in relation to the punishment that he has received. . . . In each of these cases, the Supreme Court struck down a death sentence not because it was disproportionate in comparison to sentences received by other, similarly situated defendants, but because of what the Court deemed to be the inappropriateness of the sentence in relation to the particular characteristics of the crime and the criminal at issue. These cases are of no help to Getsy, a competent adult who personally and intentionally committed aggravated murder.

The majority maintains that Getsy cannot establish that his verdict violates clearly established precedent concerning capital sentences, and therefore Getsy cannot meet the standard for habeas relief under AEDPA. Whether Getsy's sentence should be deemed unconstitutionally disproportionate, or violates traditional notions of justice (as the dissent maintained) provide no basis for relief. As Gilman wrote:
This is not to say that the incongruous results from the separate trials of Getsy and Santine are not a matter of concern. We share that concern, recognizing at the same time that reasonable people can disagree over the relative moral turpitude of the instigator of an assassination on the one hand and the killer hired to carry out the violent act on the other. Nevertheless, we are not empowered to answer this philosophical question by bypassing the limitations that both Congress and the Supreme Court have placed upon our power to grant relief under the circumstances of this case.

Perhaps some day the Supreme Court will hold that a comparison between the culpability of a hired killer and that of his instigator is constitutionally required, and that inconsistent verdicts arising from their separate trials are unconstitutional. But this is not the law of the land today, and was obviously not the “clearly established law” at the time that the Ohio Supreme Court affirmed Getsy’s conviction and sentence in 1999. For this reason, as well as the others set forth above, we do not believe that the judgment of the Ohio Supreme Court on the issue of proportionality is contrary to or an unreasonable application of clearly established federal law as determined by the United States Supreme Court.

The primary dissent, written by Judge Merritt, argues that it is fundamentally arbitrary, and therefore unconstitutional, for courts to uphold a capital sentence when the underlying facts produced inconsistent, if not actually contradictory, jury verdicts.
The Ohio state prosecutor, the Ohio Supreme Court, and apparently our Court as well, all concede that the death penalty verdict against Jason Getsy based on a “murder for hire” scheme directly contradicts John Santine’s not guilty verdict of the same crime. The crime is indivisible. “Murder for hire” is a conspiracy-type crime requiring a criminal agreement and a confederation between two or more people. Getsy, a teenage boy, was convicted of receiving “murder for hire” money from Santine, and Santine was acquitted of paying the “murder for hire” money to Getsy. Thus the two verdicts are inconsistent and irrational, and the verdict against Getsy should not be allowed to result in his execution.
Not only are the two verdicts inconsistent, the dissent maintains, but "the defendant with the lesser culpability received the harsher sentence -- the death penalty." An obvious rejoinder to this claim is that the juries disagreed, finding Getsy more cuplable than Santine, but the claim is not central to the dissent's argument. Merritt concludes:
we simply adhere to the clearly established, common sense principle of Enmund [v. Florida, 458 U.S. 782 (1982)] that, in a capital case with respect to the very same crime stemming from the very same facts, the Eighth Amendment does not permit the codefendant with less culpability to receive the death penalty when the codefendant with greater culpability receives a lesser sentence. The majority’s view is in conflict with the holding of Enmund and allows the less culpable participant in the same criminal episode to receive the death penalty when the more culpable participant receives the lesser sentence.
Judge Martin also wrote a dissent, joined by Judge Merritt, restating his view that "the death penalty in this country is 'arbitrary, biased and so fundamentally flawed at its very core that it is beyond repair.'"

I am hardly an expert on death penalty jurisprudence, but I believe the majority reached the proper legal result. While the dissent's argument has a superficial appeal, I think it proves too much. Among other things, it would be a highly incongruous result were it possible to render a capital sentence unconstitutional years after the fact because of a subsequent jury verdict arising from the same set of facts reached an inconsistent result. Indeed, to accept this rule would be to accept the possibility that any capital sentence involving a multi-participant crime could be subsequently rendered unconstitutionally disproportionate.

I am also inclined to think that the majority's conclusion is a natural consequence of a system that both relies upon jury verdicts and allows capital punishment. The jury right is a guarantee to a jury of one's peers. It is not a guarantee of a "correct" or mechanically reproducible verdict. Not all juries can be expected to reach precisely the same verdicts. Two individuals who appear to have committed equally culpable acts may not receive the same sentence, and two different juries may reach different conclusions about whether such individuals have committed sufficiently heinous acts to justify a capital sentence. What matters is that the process that led to the verdicts was proper, and that the juries properly performed their function.

Where two different juries reach apparently inconsistent verdicts, it may be due to each jury's composition, the effectiveness of the prosecution, or one of many other factors that will vary from case to case and that are an inherent part of our justice system. If such variations are enough to render Getsy's sentence unconstitutional in this case, I see little principled basis for allowing the death penalty in any case. After all, there will always be apparent disparities in who receives a death sentence and who does not. Furthermore, there is no reason to conclude that getsy's verdict was incorrect, rather than Santine's. I have plenty of misgivings about capital punishment as it is practiced in the United States today, but if it is constitutional, it seems to me that it must also be the case that it is constitutional to maintain a system with a certain amount of "arbitrary" variability, as that is something our justice system inevitably produces. Again, this is hardly my area of expertise, so these judgments are tentative, and I will appreciate reading contrary views.

Related Posts (on one page):

  1. The Getsy Decision:
  2. En Banc Sixth Decides Getsy v. Mitchell :
19 Comments

"Gay Marriage" or "Same-Sex Marriage"?

I don't have a strong preference for either formulation, and I've certainly used both in blog posts and in other contexts. Neither is wrong or offensive, as Eugene notes. But in most contexts, if forced to choose, all else being equal, I opt for gay marriage.

I do so for two reasons. First, "gay" is shorter and thus easier to type than "same-sex" (3 keystrokes versus 8). It's also less clumsy in many applications, especially if you append some qualifier, like "anti-" or "pro-", to the phrase, as often happens when you're keeping score in the debate. The only easier choice would be "SSM", clearly preferable to "GM", which makes it sound like the argument is about an automobile manufacturer. But depending on context SSM can be too au courant and too informal.

Shortness would not be an advantage if you had to sacrifice much clarity to get it. But I don't think you do sacrifice much clarity in this case by opting for "gay marriage." Eugene is probably right that same-sex marriage is descriptively more precise in the sense that two people of the same sex, regardless of their orientation, are united in marriage. But purely as a matter of communicating effectively, I think people understand what you mean by "gay marriage" without getting lost in distinctions about whether the spouses involved might in rare instances be bisexual or the speaker might intend to refer only to two gay men. "Gay" in "gay marriage" refers to the marriage, not to the spouses, who are in a gay marriage regardless of whether they're bisexual. And while "gay" has come to be associated with homosexual men more than homosexual women, in the particular phrase "gay marriage" I think people understand we're talking about two men or two women. These are judgments — sacrificing a bit of clarity to gain a bit of brevity and avoid clunkiness — about which reasonable people can disagree.

There's a second reason why I have a slight preference in most instances for "gay marriage" over "same-sex marriage." The debate is about many things: marriage, tradition, families, morality, religion, public policy. But it is also about gay people. Much — not all — of the opposition to gay marriage arises from deep opposition to homosexuality itself. Much of the support for gay marriage comes from people deeply committed to equality for homosexuals and who see marriage as an important piece of that larger project. Gay people are the ones overwhelmingly affected by the fact that two people of the "same sex" can't marry. In this sense, "same-sex marriage" subsumes them in a debate that is, in very important respects, about them. If you don't believe me, try having a debate with someone about the issue (on either side) without one or both of you making references to homosexuality. The debate is centrally about both gays and about marriage, so "gay marriage" seems the substantively better fit to me.

"Gay marriage" thus captures something about the historical and cultural significance of the debate, about the arguments for and against, that "same-sex marriage" tries to sanitize. As an example of this effort to sanitize, consider the first pro-gay-marriage decision, from the Hawaii Supreme Court in 1993, which actually has a footnote explaining its preference for the term "same-sex marriage" over "homosexual marriage." The footnote ends by observing that "parties to a same-sex marriage could theoretically be either homosexuals or heterosexuals." I always smile when I read that: please, please, this decision really has nothing to do with those people. Casebooks and court decisions ever since usually refer to it as "same-sex marriage."

Interestingly, the preference for "same-sex marriage" is also shared, for very different reasons, by two groups at opposite ends of the debate. On one end, there are ardent opponents of gay marriage who claim that the debate is not about homosexuals at all and who see it as politically unwise to appear to be "anti-gay." On the other end, there are queer theorists and social constructionists who reject even the categories "gay" and "straight." There's no doubt most academics writing in this field prefer "same-sex marriage."

I'm also not sure which way the respective phrases cut politically. It would be interesting to know whether "same-sex marriage" or "gay marriage" draws more opposition in polling questions that are otherwise identical. My hunch, and it's only a hunch, is that "gay marriage" excites somewhat more opposition because it more directly refers to homosexuality.

Mostly I look forward to the day when we simply call it marriage.

Related Posts (on one page):

  1. "Gay Marriage" or "Same-Sex Marriage"?
  2. Gay Marriage or Homosexual Marriage?
59 Comments

Ohio Court Interprets Its State Anti-Same-Sex Marriage Amendment:

The amendment, enacted in 2004, provides,

Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

A preexisting state statute, Ohio Rev. Code 2919.25(A), provides, "No person shall knowingly cause or attempt to cause physical harm to a family or household member," with "family or household member" defined to include not just spouses and relatives, but also "a person living as a spouse," in turn defined to include "a person who ... is cohabiting with the offender," which is in turn defined as living together with "sharing of familial or financial responsibilities and ... consortium.... Factors that might establish consortium include mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other, friendship, and conjugal relations." (I take it that when pushed on this, Ohio courts would require a sexual or at least a romantic relationship, or else siblings living together with "mutual respect, ... affection, ... society, cooperation, solace, comfort, aid of each other, [and] friendship" would be treated as "living as ... spouse[s].")

Defendant Michael Carswell was indicted for causing or attempting to cause harm to a woman with whom he was living but to whom he wasn't married. He argued this violate the anti-same-sex-marriage amendment because the treatment of people "living as ... spouse[s]" the same way as spouses involved the creation of "a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage." A trial court agreed with Carswell; the court of appeals reversed; and the Ohio Supreme Court agreed to hear the case.

In today's decision, the court held 6-1 (five Justices in the majority, one concurring in the judgment only) that "the second sentence of the amendment means the state cannot create or recognize a legal status for unmarried persons that bears all of the attributes of marriage -– a marriage substitute" (emphasis added). A provision treating certain unmarried couples as legally tantamount to spouses for one purpose (domestic violence law) doesn't account.

This seems to me generally right. I'd say that a legal status that bears nearly all the attributes of marriage would probably count as "intend[ing] to approximate the design, qualities, significance or effect of marriage" (emphasis added), and I expect that if such a status was enacted and challenged, the court wouldn't feel entirely wedded to the "all of the attributes" language. But a legal status that focuses only on one consequence that accompanies various relationships, including marriage, just isn't an "approximat[ion]" of either the design, qualities, significance, or effect of marriage.

It's true that a test that focuses on whether the legal status has "nearly all" the attributes of the marriage is in some measure vague. But that's a vagueness that stems from the vague constitutional term "approximates." And the domestic violence law challenged in this litigation is very far from any gray zone.

22 Comments

Gay Marriage or Homosexual Marriage?

Frank Cross writes, though in the course of making a separate point,

I was advising a conservative student arguing in a debate against gay marriage and suggested he say "gay" rather than "homosexual."

I have a simple suggestion: same-sex marriage. It's clear, descriptive, and does not unnecessarily distract listeners into thinking about subsets of the field. Many people who engage in same-sex marriage -- especially same-sex marriage among two women -- are bisexual, not homosexual; using the term "homosexual" may needlessly focus on the sexual orientation of the participants, rather than on the nature of the union. Likewise, using the term "gay" may needlessly lead listeners to think of male-male marriages to the exclusion of female-female ones.

Neither of the other terms is wrong. "Gay" is sometimes used to mean "gay or lesbian," "homosexual" is often used to mean "homosexuals or bisexuals, so long as the bisexuals are behaving in ways that reflect their homosexual rather than heterosexual attraction," and of course both "gay marriage" and "homosexual marriage" are generally used to mean "same-sex marriage." But they do risk needlessly making the listener think of something other than what you're talking about -- which is same-sex marriage, whether male-male or female-female. I don't condemn people who use them, but I think the more useful approach is to go with "same-sex marriage."

I will sometimes run the risk of offending some people, in order to fight what strike me as unsound attempts to buffalo people into not using certain words. But I see no such benefit in avoiding the descriptive and clear "same-sex marriage," which avoids needlessly focusing listeners on one or another subset of the behavior and its participants.

Related Posts (on one page):

  1. "Gay Marriage" or "Same-Sex Marriage"?
  2. Gay Marriage or Homosexual Marriage?
54 Comments

Prisoner Prosecuted for Masturbation:

The South Florida Sun-Sentinel reports:

Terry Lee Alexander ... was sitting on his bunk alone in his cell masturbating when a female deputy, monitoring his cell from a nearby control room, took offense.

Today he's scheduled to go to trial to fight a misdemeanor indecent exposure charge and the maximum one-year jail sentence that would go with a conviction. The incident occurred in November.

Although masturbation, a common jailhouse occurrence, violates most jail and prison rules, it doesn't often result in criminal charges. It is generally dealt with internally with a disciplinary write-up and temporary loss of phone or recreation privileges, Florida jail and prison officials said....

Deputy Coryus Veal ... has brought similar charges against seven other inmates in six months.

Seems to me that this sort of restriction is guaranteed to be flouted, and is needlessly cruel. If a prison wants to limit the more visible forms of masturbation, that's fine, so long as it informs inmates what they may and may not do. But a total ban on masturbation strikes me as a very bad idea.

The story suggests that the policy in practice turns on the visibility of the masturbation — "Generally, we prosecute such cases in which the inmate exposes himself in such plain view of the detention staff or other persons," said a prosecutor's office spokesman. But there's no evidence that inmates know what is and is not allowed. And while most of us would know enough, even without being told, not to visibly masturbate in front of strangers, I take it that many inmates aren't constantly conscious of being observed by video, or aware that it's OK to masturbate if they do so under a blanket but not otherwise.

Such prosecutions also lead to situations such as this (thanks to How Appealing for the pointer):

[D]efense attorney Kathleen McHugh ... faced 17 prospective jurors and asked point-blank who among them had never masturbated.

No hands went up.

Then, she went one-by-one, asking each prospective juror if he or she had ever masturbated.

All nine men said yes, two of the 10 women said no.

At least I appreciate the honesty of south Florida male jurors.

UPDATE: The prisoner has been convicted.

73 Comments

Conservative bleg:

Have some pro-life people argued that, in light of the great evil of abortion, judges ought to bend the law (to the extent they can get away with) to pursue pro-life policies? Please be as specific as possible.

24 Comments

Lesbos:

Can anyone who knows something about modern Greece tell me what (if anything) the inhabitants of Lesbos — Lesvos in modern Greek, I believe — think about the term "lesbian"? Do they perceive it as annoying? Offensive? Amusing? Is there no dominant view on the subject?

Relatedly, my quick searches suggest that the term "lesbian" is also present in other European languages, such as French and Greek. Is it identical to those languages' terms for inhabitants of Lesbos (or perhaps just the terms for female inhabitants of Lesbos, in languages that distinguish gender in such proper names)? Is it similar?

I ask these questions not to make some point, but just because I'm curious about how people react to historical accidents such as this one. (A different, though perhaps indirectly related, question: Do the inhabitants of Lesbos view Sappho as a heroine, the way many places view local girls/boys who made it big, or do they view her askance? [UPDATE: See below.])

A separate question, which might make some point, but which I stress is analytically distinct from the empirical questions I ask above: Say that the inhabitants of Lesbos find the term offensive. Should others, including lesbians, try to shift to a different term? Or should they go ahead with the term that they've used for a long time?

UPDATE: Thanks to Dr. Weevil, and Lesbian Fiction Herstory (which I found through a search inspired by Dr. Weevil's comment), I can illustrate this post with this statute of Sappho that is apparently in the town square of Mytilini, the main city of Lesbos:

39 Comments

Amended Opinion in Forrester: Good news for those following United States v. Forrester, the computer pen-register case; the Court very helpfully amended the opinion today to clarify that the surveillance program was installed at the ISP's connection facility rather than on the individual's personal machine. That's very good to know, for reasons I explained here. I think the opinion is clearly correct in light of it.

  I trust some readers are thinking that even if the court's decision is correct as a matter of Fourth Amendment law, the result is still troubling as a matter of policy. Pen register orders are very easy to get, and non-content Internet surveillance can be quite invasive. I think that's basically right, which is why I think the Pen Register statute needs to be amended. As I argued in this article, I think the standard for an Internet pen register order should be a showing of "specific and articulable facts" rather than a mere certification of relevance. In traditional Fourth Amendment terms, Congress should use a Terry stop standard rather than a subpoena standard. That's a question for Congress, not the courts, but I hope the Forrester case helps bring attention to the need for statutory reform.
13 Comments

Text of University of Colorado President's Letter About Ward Churchill:

Thanks to Diana Hsieh (NoodleFood):

TO: CU-Boulder Students

FROM: Office of the President

SENDER: officeofthepresident@cu.edu

DATE: 07/24/07

SUBJECT: Communication from President Hank Brown on the Board of Regents Vote

Dear Students of the University of Colorado,

The Board of Regents today voted to accept my recommendation to dismiss Professor Ward Churchill from the faculty.

I made the recommendation for the good of the university. CU's success depends upon its reputation for academic integrity. A public research university such as ours requires public faith that each faculty member's professional activities and search for truth are conducted according to the high standards on which CU's reputation rests.

We are accountable to those who have a stake in the university: the people of Colorado who contribute $200 million annually in tax dollars, the federal entities that provide some $640 million annually in research funding, the donors who gave us more than $130 million this year to enhance academic quality, the alumni who want to maintain the value of their degrees, the faculty and staff who expect their colleagues to act with integrity, and the students who trust that faculty who teach them meet the high professional standards of the university and the profession.

Given the record of the case and findings of Professor Churchill's faculty peers, I determined that allowing him to remain on the faculty would cast a shadow on our reputation for academic integrity.

Throughout the case, we have adhered to shared governance procedures as determined by the CU Faculty Senate Constitution and Bylaws and adopted by the Board of Regents. During the course of two-plus years, Professor Churchill presented his position in writing, in person, with his attorney and with witnesses of his choosing. He was afforded full due process.

More than 20 tenured faculty members (from CU and other universities) on three separate panels conducted a thorough review of his work and found that the evidence shows Professor Churchill engaged in research misconduct, and that it required serious sanction. The record of the case shows a pattern of serious, repeated and deliberate research misconduct that falls below the minimum standard of professional integrity, including fabrication, falsification, improper citation and plagiarism. No university can abide such serious academic misconduct.

Professor Churchill fabricated historical events and sought to support his fabrications by manufacturing articles under other names. His publications show more than just sloppy citations or using the work of others without crediting them. The Investigative Committee of the Standing Committee on Research Misconduct found multiple instances of falsification, fabrication and plagiarism. Any student engaging in such a wide range of academic misconduct would be seriously sanctioned. We should hold our faculty to a high standard of professionalism

While Professor Churchill's peers on the faculty panels were unanimous in finding research misconduct, views on the appropriate sanction varied. Some faculty recommended dismissal while others suggested a less severe penalty. My obligation as president is to recommend to the Board of Regents an appropriate sanction that is for the good of the university.

Some on the Boulder campus and beyond claim Professor Churchill was singled out because of public condemnation of his writing about September 11, 2001. They see this case as a referendum on academic freedom. The university determined early in the process that his speech was not at issue, but that his research was. The prohibition against research misconduct extends to all faculty, regardless of their political views. We cannot abandon our professional standards and exempt faculty members from being accountable for the integrity of their research simply because their views are controversial.

Professor Churchill's activities not only run counter to the essence of academic freedom, but also threaten its foundation. Academic freedom is intended to protect the exploration and teaching of unpopular, even controversial ideas. But that pursuit must be accompanied by the standards of the profession. Academic freedom does not protect research misconduct. After his research misconduct was identified, Professor Churchill did not admit any errors or come forward to correct the record, as is expected in the profession.

CU's most important asset is its academic reputation. Professor Churchill's actions reflect poorly on the University of Colorado, but we will not let the research misconduct of one individual tarnish our reputation. Our faculty members take pride in their work and demonstrate their respect for the high standards of their profession and this university day in and day out. Professor Churchill's research misconduct is an affront to those who conduct themselves with integrity.

We will remain accountable to those who have high expectations of Colorado's flagship university. And our faculty will remain true to high professional standards to ensure our reputation for academic integrity remains intact.

Sincerely,
Hank Brown
President

Here's the Report and Recommendations of the [University of Colorado] Standing Committee on Research Misconduct Concerning Allegations of Research Misconduct by Professor Ward Churchill. Six of its nine members had recommended dismissal; two recommended suspension without pay for five years; one recommended suspension without pay for two years.

I think President Brown's action is correct, for reasons I gave last year:

As best I can tell, from what press accounts I've read and from the Report itself, Churchill hasn't shown any contrition. His falsification, fabrication, and plagiarism (in the Committee's words), which the Committee quite plausibly found to be deliberate, are substantial.

And these are falsehoods in his published work, which can readily be checked. How can his future students be confident that things he says in class are accurate? (Yes, we try to instill skepticism in our students, but they still rightly expect that they can count on our factual assertions, rather than double-checking every word.) How can his colleagues, and Colorado taxpayers, be confident that his students are learning things accurately? His work has been cited by over 100 times in law reviews alone, and law isn't even his main field; I assume that quite a few scholars are now wondering whether their reliance on his work led their own work to be in error. How can other scholars, and his other readers, ever rely on anything he says?

It seems to me that keeping him on the faculty would be a substantial disservice to Colorado students, Colorado taxpayers, and the academic fields in which he works. I hope that in its sympathy for a colleague, and its desire to avoid hassle or even litigation, the University doesn't lose sight of that.

41 Comments

Another Word I Will Gladly Continue To Use:

A commenter writes:

One easy way to identify a Christianist or a bigot is their use of the word homosexual, when the term we use for ourselves is gay or lesbian.

I've heard similar objections elsewhere (or else I wouldn't have responded to an isolated comment), but I find them utterly unpersuasive.

First, the descriptive assertion that there's a high correlation between use of the term "homosexual" and the speaker's hostility to homosexuals strikes me as entirely unfounded. Search the archives of the New York Times — or for that matter the Advocate — the works of Andrew Sullivan, and a wide variety of other sources, and you'll see.

Second, I'm not even persuaded by the assertion that homosexuals themselves generally prefer "gay" or "lesbian," even in contexts where "homosexual" is more precise (such as when one is talking about either gays or lesbians and wants to use one word that doesn't imply — as "gay" in some measure does — a limitation to one sex). The speaker may be accurately reporting the views of those particular gays and lesbians whom he knows, and who are vocal on the subject; I'm skeptical of his knowledge of the views of homosexuals generally.

Just to give some examples from similar contexts (as I've noted before), a 1995 Labor Department survey reported that 50% of American Indians preferred "American Indian" and only 37% preferred "Native American"; 44% of blacks preferred "Black" and only 40% preferred "African-American" or "Afro-American"; 58% preferred "Hispanic" and only 12% preferred "Latino" (no separate data was given for "Latino/a"). Matters may have shifted some since 1995, but not vastly; and I'm pretty sure that in 1995, the preferred terms among activists were "Native American," "African-American," and (here I'm less sure) "Latino," yet the actual majority (or, for blacks, plurality) preferences were different. (Source: U.S. News & World Report, Nov. 20, 1995.) Even if I thought that I had some moral or good manners responsibility to use the label preferred by a strong majority of the group, I see no basis for accepting such a responsibility to use the label preferred by a vocal minority, or even half of the group.

Third, as I have described here, the argument that "the group prefers to be called X, so you have a good-manners obligation to call it that" is not enough of an argument in my book — even if there is adequate evidence that the group prefers that.

Naturally, there are clearly pejorative ways to use certain words (including "gay," "lesbian," or anything else). But I'm not going to let people buffalo me, or stand by quietly while people try to buffalo others, into abandoning the clear, useful, and generally nonpejoratively used term "homosexual."

UPDATE: On reflection, I thought I'd quote much of the older post I linked to above (which was about some people's preference for "handicapped" over "disabled," but which should largely apply here as well):

2. Moreover, shifting from an old label to a new label is not cost-free. It's not cost-free for the speaker. Sometimes the new term has shades of meaning that aren't quite apt for certain uses, and thus requires extra work to think through. ("African-American," for instance, isn't a racial group, but a racial subset of Americans; it thus isn't always an apt substitute.) Sometimes the new term carries an ideological literal meaning that the spaker may disliks evoking, even when it's fairly clear that he's using the term just as a label and not for its literal meaning. This is clearest for "differently abled" or "Latter-Day Saint" (I have nothing against Mormons, but I prefer not to call them Saints, even with the implied quotes). But it may also apply in other situations, such as with "disabled"; some people may genuinely prefer to stress the handicap (i.e., burden) under which a person labors rather than his disability.

Sometimes the word acquires a connotation of adherence to the ideology that spawned it; the word "womyn" may be the most famous example, though I suspect that these days it's so often used facetiously that people may want to avoid it for that reason as well. Speakers may then resist using the term because they don't want to be seen as proclaiming allegiance to an ideology that they do not adhere to. Sometimes the new term is just clunkier and sounds more stilted to many people; some, I suspect, take this view as to African-American, and I suspect that headline writers are especially unhappy with it.

3. But the more important cost to the speaker is that telling people that they should stop saying certain words, not because those words are likely to be reasonably interpreted as expressing hostility, but simply because some other people dislike those words, is itself something of an affront to dignity and a possible source of offense. Even the good-mannered among us cherish our freedom to speak as we please, and while we try not to be rude (in the sense of slighting others or saying bad things about them), we understandably bristle at being told to stop using this word and start using that one on pain of Being a Bad Person.

A sound explanation that shows why people are reasonably offended by a term (for instance, an explanation to someone coming from Russia, where "black" is insulting much like "yellow" would be, and "negro" is considered the proper scientific term, that in America "negro" is so rarely used that it sounds like a deliberate insult at worst or one of those what-did-he-mean-by-that? archaicisms at best) might soften the sting. But simply saying "most of us like this term, so stop using this other one that you've used all your life" is a legitimate source of offense for those whose speech people are trying to control. It's even more such a source if those people were once taught by then-representatives of the same group that "handicapped" was the better term, and some years later are now told that it's become bad. And it's especially so when the number of forbidden words grows and grows ("rule of thumb," "Chinese wall," "seminal," etc.).

4. On top of that, there's also another substantial cost to the "If you aren't a bigot, stop saying 'handicapped' and say 'disabled' instead" approach: It may actually increase how often the group that one is trying to protect from offense ends up feeling offended.

If handicapped people learn that some people say "disabled" and others say "handicapped," and that neither is evidence of hostility, a few might still bristle at one (or the other); but many will be satisfied by the explanation that decent people use both. But say that everyone is told that "disabled" is the one right term, and some decent people don't go along, whether because of force of habit, strong preference for "handicapped," or just bristling at being told what to say. Then handicapped people who hear the term may well become more offended, because they've been taught that the word is offensive.

People who might even prefer to shrug the term off might feel almost obligated to take it as an insult. If someone calls me "Gene" rather than "Eugene," I'm a little annoyed (that's just not the name I prefer in English), but I assume that it's just because they've fallen into that habit with other Eugenes they know, who do go by Gene in a way that I don't. I assume the speaker's intentions were good, and I think I'm happier for it.

But if someone started a campaign of insisting that calling me Gene is actually rude, perhaps even insulting (because the diminutive implies a diminution of my status), I'd both hear "Gene" a bit less often, and be much more annoyed when I do hear it, precisely because I'll worry that it's a deliberate violation of the New Good Manners Rule and thus a deliberate slight. Those who make the handicapped/disabled issue into a matter of identity politics rather than just a matter of apricot/apricot (or even Gene/Eugene) may thus increase the amount of hurt feelings on both sides.

5. So I think the approach that's more tolerant of speakers, ultimately more likely to avoid offense to the subjects of the speech, and less likely to be subject to the whims of a small minority of activists is generally to tolerate both the old terms and the new terms, and not consider either to be a breach of good manners.

There are exceptions. One, as I noted above, is when one term is so often used pejoratively that reasonable listeners might assume that the current user is using it pejoratively. Another is when the term is so archaic that it will make people wonder whether the speakers must have some ulterior motive in using it (the obvious motive, which is that it's a commonly used term that springs to people's minds naturally, being absent). There may well be others; rules of manners are often not competely simple and crisp. But as to handicapped/disabled, or American Indian/Native American, or black/African American, the let-at-least-a-couple-flowers-bloom approach strikes me as the clearly preferable one.

Related Posts (on one page):

  1. Lesbos:
  2. Another Word I Will Gladly Continue To Use:
166 Comments

En Banc Sixth Decides Getsy v. Mitchell :

Today the U.S. Court of Appeals for the Sixth Circuit, sitting en banc, overturned a prior panel decision in Getsy v. Mitchell that Jason Getsy’s death sentence was unconstitutionally arbitrary under the Eighth Amendment because the jury verdict in his case could not be reconciled with the verdict of another jury in the trial of another defendant who was involved in the same crimes. the vote was 8-6, with the court dividing on fairly predictable ideological lines. I commented on the initial decision here. Orin and Eric Muller also had thoughts on the case.

As a matter of law, I am inclined to think that the majority reached the correct result, but I want to give it more thought after I've had time to digest the opinion. I hope to have more to say about this case later today.

In the interests of full disclosure, I should also note that one of my colleagues argued the case on Jason Getsy's behalf, and I participated in a moot court to help prepare him for argument.

Related Posts (on one page):

  1. The Getsy Decision:
  2. En Banc Sixth Decides Getsy v. Mitchell :
12 Comments

Disturbing News About Hezbollah:

Ha'aretz:

The head of American intelligence, Admiral (ret.) Mike McConnell, revealed a secret a week ago: Hezbollah sleeper cells are waiting in the United States for the order to carry out terror attacks. The unclassified version of the intelligence assessment, the one distributed to the public, has been stating for years that Hezbollah has the ability and intentions to act against American targets and assets. However, this description has been vague enough to deceive the public into thinking that attacks are expected only in Lebanon and other places in the Middle East. McConnell, who crafted his speech on the fly while on the way from the White House to another location in Washington, tripped up and let slip what the American intelligence community had discovered from its sources and was trying to hide....

The expected trigger for Hezbollah attacks, both in the secret assessment and the censored version, is if America or Israel crosses what McConnell calls a "red line" as far as Hezbollah is concerned: an attack on Iran. A response to this will shed American blood. Politicians will have to explain to the public, the day after a bombing in Iran and reprisals in Detroit or Los Angeles, why it has brought down this unnecessary trouble, which intelligence had warned about, on the tranquil civilians between the two oceans.

The recent past has taught the Iranians that the Americans, like cold business people [olr short-sighted politicians, ed.], tend to cut their losses and get rid of failed investments. They were defeated and they surrendered after the takeover of the embassy in Tehran. Two attacks on the embassy in Beirut and one on the Marines at the airport at Khaldeh expelled the Sixth Fleet from Lebanon's shores. The kidnapping of its citizens led the Americans, with Israel's help, to sell arms to the Iranians in their war against the Iraqis. You don't have to be Pavlov to recognize a behavior pattern here.

I'm sure Washington is disgusted, as it should be, at the Israeli government's ineptitude in failing to destroy Hezbollah last Summer.

40 Comments

Justice Stevens on the Ninth Circuit:

While chairing the U.S. Court of Appeals for the Ninth Circuit's judicial conference last week, Justice Stevens addressed concerns about the Circuit's apparently high reversal rate at the Supreme Court.

The 9th Circuit's dubious record of a 90 percent reversal rate last session, reversing 19 of 21 cases, is "misleading" and does not reflect where it really stands, Stevens said. He pointed out in the Seattle schools case, Parents United v. Seattle School District, 127 S.Ct. 2738, that the 6th and 1st Circuits had ruled similarly and that three appeals courts ruled the same on so-called partial birth abortion cases, which were later overturned. . . .

As for concerns that the U.S. Supreme Court may be singling out the 9th Circuit for special attention, "Not in my chambers," he said. He could not be as certain whether other justices keep a closer watch on what the 9th Circuit produces.

2 Comments

Tuesday, July 24, 2007

How to Get Yourself Fired From a Summer Associate Job:

One of the most difficult feats in the legal profession is getting fired from a job as a summer associate at a big law firm. Stupidity, incompetence, and misbehavior are simply not enough to persuade most firms to show summer associates the door. However, David Lat at Above the Law recounts a recent example of a summer associate associate who really did get fired. The budding lawyer in question got the axe because he "(a) he allegedly engaged in inappropriate sexual conduct with female summer associates, variously described as 'repeatedly smack[ing] the asses of female summers' or 'playing grab ass with female summers,' and (b) . . . allegedly made racially insensitive jokes, in front of multiple attorneys."

In other words, our hero was done in by a combination of racist talk and sexual harrassment. The sad tale recounted by David fits in with my own anecdotal experience. I know of only a handful of people who have been fired from summer associate positions. But every one of them was let go because because of allegations of racism, sexual harrassment, or both. Why this pattern (assuming that my experience is representative)? Some might see it as a symptom of political correctness. Perhaps - though, in all of the cases I'm familiar with, I would probably have fired the racist/harrasser in question too.

But there is another explanation for firms' toleration of other kinds of bad behavior by summer associates, combined with intolerance for sexual harrassment and open racism. Most big firms want summer associate jobs to be as much fun and as little pressure for law students as possible; that is what they think will make a good impression on the summer associates and convince them to take full-time jobs at the firm later on. Not firing people for incompetence, stupidity or obnoxiousness is one way to ensure an easygoing, low-pressure atmosphere. And it doesn't do much harm to the partners' bottom line because the firm isn't likely to make much of a profit on summer associates' work anyway.

However, if a summer associate engages in racist or sexist behavior without retribution, that is likely to damage the firm's public image, thereby making it difficult to recruit new lawyers in the future (particularly women and minorities). Moreover, failure to discipline employees who engage in sexual harrassment could open the firm to costly litigation.

In sum, law firms are willing to tolerate most misbehavior by summer associates because it is in their interest to do so. But summer associates, like other workers, will get the axe if their misadventures threaten to hurt the bottom line.

It is fashionable to decry big law firms' and other businesses concern for maximizing profit. In this case, however, it leads them to crack down on racism, sexism, and harrassment far more than they otherwise might. Not a bad outcome.

59 Comments

Bloggers -- You Might Have Already Had Libel Insurance,

but you might have lost it by having ads or a tipjar. I posted about this a couple of years ago, but I was reminded of it recently (fortunately not because of anything involving this site), so I thought I'd post again about it. (Thanks to Kurt Opsahl of the Electronic Frontier Foundation for first suggesting this point, and to my wife for her advice on insurance law. Please note, though, that I'm not an insurance lawyer, though I've done a bit of research on this subject. Don't take this to the bank, and do let me know if you are an insurance lawyer and have some corrections. Consider this general speculation about the lay of the land, and not individualized legal advice.)

1. It turns out that homeowner's insurance policies, and possibly also some renter's insurance policies, generally cover libel lawsuits. That may sound odd, but the policies tend to cover both damage to your property (the main reason, I suspect, that most people buy these) and liability for unintentional harm that you inflict on others. One policy that I read, for instance, says that

If a claim is made or a suit is brought against any insured for damages because of bodily injury . . . caused by an occurrence to which this coverage applies, we will:

1. pay up to our limit of liability for the damages for which the insured is legally liable; and

2. provide a defense at our expense by counsel of our choice even if the allegations are groundless, false, or fraudulent. . . .

POLICY DEFINITIONS . . .

"Bodily injury" means; . . . personal injury . . . arising out of . . . libel, slander or defamation of character; or . . . invasion of privacy.

If you have an umbrella liability policy, it may provide extra monetary coverage. Of course, you're only covered if your insurance contract does indeed specify this, explicitly or implicitly. You ought to read your policy (they are often quite readable), and pay close attention both to the body of the policy and any separate definitions section.

2. These policies generally don't cover punitive damages, but they do cover both compensatory damages and litigation defense costs. Fortunately, that's what you most want to have covered.

Libel cases are hard for plaintiffs to win, and punitive damages are especially hard to get. If you're writing on matters of public concern, and are sued for libel, you can't be liable for punitive damages unless a jury finds that you knew your statement was false or at least knew it was quite likely false but blithely published it without any investigation. So chances are you won't be on the hook for punitive damages, or even for compensatory damages.

But even if you win, you could spend huge amounts of money defending yourself. That's where the insurance can be especially handy.

3. However, these policies generally explicitly exclude liability related to "business pursuits." The exclusion and the definition of "business pursuits" may vary from policy to policy, so check yours (and again check both the homeowners' insurance and your umbrella policy, if you have it). Still, I'm told that most policies just say "business pursuits," and sometimes define them as referring to a "trade, occupation, or profession."

If your blog is entirely noncommercial — you neither have ads nor solicit donations for a tip jar, and you don't systematically use your blog as primarily promotion for your business — then you should be covered for libel lawsuits arising out of your blog posts, because the blogging wouldn't be a business pursuit. (Possible exception: If your primary occupation is a professor or a journalist, then even noncommercial posting on topics related to your specialty may conceivably be seen as part of your main occupational "business pursuit"; I know of no precedents one way or the other about this.)

But if you make some money out of it, even a small amount, then in many states you probably won't be covered. In a few states (as best I can tell, Georgia, Indiana, Minnesota, Mississippi, North Carolina), even a blog that makes some money will be covered if blogging isn't your primary occupation. In Arkansas, Idaho, Louisiana, and Michigan, you might be able to get coverage on the theory that making money wasn't your primary motive in blogging, and that you were instead doing it as a hobby with money being only a side consideration. Still, the majority view, as I understand it, is that any moneymaking component (so long as it's regular, rather than just one-time or highly intermittent) makes your blogging into business activity and thus excludes it from coverage. This isn't entirely clear, but that's my sense from reading some cases and a couple of reference works.

4. This means that if you're worried about the risk of libel lawsuits, you might want to consider staying entirely noncommercial. Naturally, you wouldn't have to do it if you live in a state which reads the "business pursuits" exception narrowly. (Most homeowner's insurance policies, I'm told, don't have a separate provision indicating what state law would be used to interpret them, so courts would generally apply the law of where you live.) And if you figure that you'll make lots of money from the ads or the tip jar, you might be willing to run the risk, especially because libel lawsuits against bloggers are thankfully rare, and because you might think that your posts would be unlikely to trigger a lawsuit.

But if you think that having libel insurance will let you sleep better at night, you might conclude that it's better to forgo, say, $500 worth of advertising income in a year in order to remain insured.

5. What should you do if you get a threatening letter?

  1. Read your insurance policy. As I said, it may not be a hard read. Pay close attention to all the sections, to see if there might be some unexpected exclusion that may apply. Also pay close to attention to the definitions section, since some terms may be defined in counterintuitive ways.

  2. Immediately notify your insurance company, in writing, that there might be a claim against you; send it a copy of the nastygram you received, and a dated cover letter. Tell the company that you need to consult a lawyer to deal with the threatening letter, and ask it to get you a lawyer right away, or to authorize you to consult one yourself on their dime. The insurance company may not have an obligation to pay your lawyer's bills until the lawsuit is filed, but it doesn't hurt to ask.

    I'm told that you can usually do the notification through your insurance broker, who knows how to deal with the company, and whom to talk to there. In any case, talk to your broker and see whether he'll do the notification for you or whether you ought to notify them yourself.

    Always communicate in writing, keep copies of all communications, and date all your communications. You can also call them (particularly important if you need to nag them), but confirm any substantive communications in writing.

  3. If the other side's gripe with you is sound — if you did indeed err — post a correction. It's the right thing to do, and it may avoid a lawsuit.

  4. If a Complaint is filed against you in court, notify the insurance company about that, too, by sending them a copy of the Complaint with a dated cover letter. Demand that they get back to you quickly about whether they're hiring a lawyer on your behalf.

    If the insurance company doesn't get back to you quickly with an answer, hire a lawyer yourself, and show him a copy of the insurance policy. Then inform the company that you've hired the lawyer, and that you expect the company to pay the bills. Bug the insurance people repeatedly, if necessary, including through your insurance broker. If your policy covers libel, and you aren't within the business pursuits exclusion, you likely have a very strong case for coverage; but they can still be slow, and you need to be the squeaky wheel.

  5. If you do hire a lawyer, show him the policy, and negotiate with him in light of the policy. See if he would agree to represent you for rates that he's pretty sure the insurance company would pay. See if he would agree not to charge you if the insurance company denies coverage. That, of course, depends on his sense of how likely coverage seems to be. But cyber-libel cases are potentially pretty interesting, even glamorous. Some lawyers may be willing to take a small risk of nonpayment to do a fun case like that.

* * *

In any case, these are just a few thoughts; use these numbers for comparison, your mileage may vary. But keep in mind that (1) you may already have libel insurance for your blogging, (2) you might lose it, depending on the state you're in, if you sell ads, have a tipjar, or otherwise make even small sums of money from your blog, (3) you may therefore want to plan your blog financing accordingly, if you're the worrying sort (or for that matter the libeling sort), and (4) if you are sued or threatened with a lawsuit, look carefully at your insurance policies, notify your insurance company immediately and in writing, and bug it repeatedly for an answer.

14 Comments

Fowler on Pronunciation:

The ambition to do better than our neighbours is in many departments of life a virtue; in pronunciation it is a vice; there the only right ambition is to do as our neighbours.

Fowler goes on to acknowledge and discuss important subsidiary questions, such as who counts as "our neighbours" for this purpose. But the opening sentence, which I quote above, still tells you most of what you need to know.

Thanks to commenter wm13 who reminded me of the source, and of the precise quote.

41 Comments

Against descriptivism and prescriptivism:

This whole series of posts just underscores why I don't like the words "descriptivism" and "prescriptivism." When one says one's a descriptivist, this immediately makes people think one doesn't want to prescribe. This is of course completely false, and I would have thought that my posts (and Eugene's) would have put that idea to rest. But no, this misconception dies hard.

Am I a descriptivist? Yes! Because I think usage is the ultimate guide to what English means. I'd think that even self-described "prescriptivists" would say the same thing if, as anthropologists, they encountered a new tribe in the Amazon and tried to describe their language. To know what the language means, you have to observe its practitioners and see what rules they themselves follow in speech.

Am I a prescriptivist? Yes! I've been an editor of a journal in the past (and so has Eugene), and I still act as editor when I read friends' drafts and my students' work. When I write an article, I send it to Eugene, who tells me how I should rewrite it. Heck, Eugene has even written a book called Academic Legal Writing, in which he gives the reader expressions to avoid!

And it's clear why we're interested in prescribing usage: In my case, my only rule is to speak in ways that make you best able to accomplish your goals. Since my goals are usually communicative, I believe in speaking in ways that are clear and comprehensible to my target audience. (And since my target audience often changes, the content of "clear and comprehensible" also changes.) Anyone's "rules" are only valuable to me insofar as they serve my goal. But once I've stated a goal, for instance effective communication with and persuasion of legal academics, there is probably an objectively best way to pursue that goal.

Therefore, to the extent a particular phrase makes my thought unclear, marks me as uneducated and therefore reduces my credibility with my readers, or something else along those lines, then using that phrase is a mistake — because it's a less effective way of pursuing my goal. (When people correct language mistakes in my posts, most of the time I myself would agree that it's a mistake!) The best way to pursue my goal might even be formalizable by means of rules — and most of these rules are indeed the ones we learned from our 7th-grade English teachers — but there's no necessary relation between the one and the other, and of course, in case of conflict, it's the English teacher's rules that should go out the window.

So the notion that I don't think there are better and worse ways of speaking — that I wouldn't teach my kids how to talk and how not to talk — is silly. The difference between self-described "prescriptivists" and "descriptivists" isn't that the first gang prescribes while the second gang describes. When I say that my students are speaking or writing incorrectly, I mean that they're expressing themselves in ways that I don't think are likely to achieve what I think their goal might be (and of course I have to explain why the words they use are ineffective). And when I choose how to speak, I likewise choose the words that I think are most likely to achieve my goal.

This "functional prescriptivism" business is a difficult exercise, and miles away from the "anything goes" that some people use as their caricature of descriptivism.

37 Comments

A Davis-Bacon Act for "Hired Feet":

If, as Orin points out, the Carpenter's Union is hiring workers for $8 an hour to picket on its behalf, it's obvious that what we need is a private sector Davis-Bacon Act for "hired feet" picketers. The picketers would then just need a sympathetic government official to do a skewed "wage survey" that would determine that the "prevailing wage" for picketers ranged from $15 to $40 an hour, with the guys who just stand around and smoke getting $15 an hour, experienced, trained sign holders getting $30 an hour, and those who are able to both walk and hold a sign getting $40 an hour. Unfortunately, the "smokers" wouldn't be allowed to become sign holders or walker/holders without participating in an apprenticeship program. Of course, the homeless who now hold the picketing positions will be priced out of a job, but that's a small price to pay for improving the lot of the working class.

(Note: The real Davis-Bacon Act has long benefited members of Carpenter's Union, both by mandating wages above real market for federally financed projects, and by creating absurd work rules such that anyone who wants to hammer a nail into a wall is deemed a "carpenter" and must be paid carpenters' wages. Low-paid helpers can only obtain higher union job classifications through union or government-sponsored apprenticeship programs, regardless of on-the-job training.)

18 Comments

Union Hires Workers To March in Picket Line and Pays Them $8 an Hour: The Washington Post has the story. Thanks to Sam Yospe for the link.

Related Posts (on one page):

  1. A Davis-Bacon Act for "Hired Feet":
  2. Union Hires Workers To March in Picket Line and Pays Them $8 an Hour:
24 Comments

Bloggers and Campaign Finance Law:

John Bambenek (BlogCritics) has filed a complaint with the Federal Elections Commission, alleging that DailyKos is a "political committee" that is subject to various federal elections law registration and reporting requirements with which it hasn't complied. After all, Bambenek argues, the DailyKos itself says that it is "about electing Democrats," and is therefore a political committee.

Fortunately, even partisan blogs are not covered by federal election law, because — as the FEC ruled in November 2005 — they are covered under the "press exception" to campaign finance law. The ruling, which came in response to a request by Fired Up, a Missouri democratic activist blog, concluded (citations omitted, some paragraph breaks added):

The Act and Commission regulations define the terms “contribution” and “expenditure” to include any gift of money or “anything of value” for the purpose of influencing a Federal election. However, there is an exception for “any cost incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station (including a cable television operator, programmer or producer), newspaper, magazine, or other periodical publication ... unless the facility is owned or controlled by any political party, political committee, or candidate[.]” This exclusion is known as the “press exception.”

The Commission has applied a two-step analysis to determine whether the press exception applies. First, the Commission asks whether the entity engaging in the activity is a press entity as described by the Act and Commission regulations. Second, in determining the scope of the exception, the Commission considers: (1) whether the press entity is owned or controlled by a political party, political committee, or candidate; and (2) whether the press entity is acting as a press entity in conducting the activity at issue (i.e., whether the entity is acting in its “legitimate press function”). Two considerations in applying this analysis include whether the entity’s materials are available to the general public and are comparable in form to those ordinarily issued by the entity....

Fired Up qualifies as a press entity. Its websites are both available to the general public and are the online equivalent of a newspaper, magazine, or other periodical publication as described in the Act and Commission regulations.

An examination of Fired Up’s websites reveals that a primary function of the websites is to provide news and information to readers through Fired Up’s commentary on, quotes from, summaries of, and hyperlinks to news articles appearing on other entities’ websites and through Fired Up’s original reporting. Fired Up retains editorial control over the content displayed on its websites, much as newspaper or magazine editors determine which news stories, commentaries, and editorials appear in their own publications. Roy Temple, acting on behalf of Fired Up, not only produces much of the content but also exercises day-to-day control over which stories are featured. Reader comments appearing on Fired Up’s websites are similar to letters to the editor and do not alter the basic function of Fired Up.

According to the House report on the 1974 amendments to the Act, the press exception made plain Congress’s intent that the Act would not “limit or burden in any way the first amendment freedoms of the press ...” and would assure “the unfettered right of the newspapers, TV networks, and other media to cover and comment on political campaigns.” Consistent with this intent, the Commission has already expressly extended the press exception to qualified activities that appear on the Internet.... Thus, Fired Up is a press entity and satisfies the first step of the press exception test....

Fired Up is a for-profit LLC and is not owned or controlled by any political party, political committee, or candidate. Given that Fired Up’s operation of its websites is at the core of its activities as a press entity, its provision of news stories, commentary, and editorials on its websites falls within Fired Up’s legitimate press function. Thus, because Fired Up is a press entity, and neither it nor its websites are owned or controlled by any political party, political committee, or candidate, the costs Fired Up incurs in covering or carrying a news story, commentary, or editorial on its websites are exempt from the definitions of “contribution” and “expenditure.”

The Commission notes that an entity otherwise eligible for the press exception would not lose its eligibility merely because of a lack of objectivity in a news story, commentary, or editorial, even if the news story, commentary, or editorial expressly advocates the election or defeat of a clearly identified candidate for Federal office....

The same, I think, would be said about DailyKos and lots of other political blogs (with some exceptions, such as blogs that are run directly by a political party or candidate).

There is much to criticize in modern federal campaign finance law; and it may well be that the press exception should be even broader than it is — though keep in mind that broadening the exception, or repealing the law altogether, would interfere with disclosure requirements (which even many critics of contribution and spending limits support) and not just spending limits.

Nonetheless, the press exception as the FEC has rightly interpreted it is broad enough to cover blogs, even highly partisan blogs that aim to elect Democrats, just as it covers partisan magazines such as the National Review or the Nation.

Note also this defense this morning of DailyKos by David Freddoso (the Corner, National Review), comments to the FEC urging regulation of political blogs by Democracy 21, the Campaign Legal Center, and the Center for Responsive Politics, a concurring opinion by two FEC commissioners that seems to call for a somewhat narrower view of the "press exception" than the majority would adopt, and this letter supporting the Fired Up decision from Duncan Black (Atrios), Markos Moulitsas Zuniga (DailyKos) and Matt Stoller (MyDD).

26 Comments

Those Illiterates -- Chaucer, Sir Walter Scott, and Ruskin:

A commenter writes:

Baloney, we should not accept the degradation of distinctions, clarity, etc., that illiterates introduce into the language. To grill is not to barbeque. At present does not mean presently. Anxious does not mean eager. And to beg the question does not mean suggests the question. Except to people who have no concern for communicating clearly.
OK, that's what the pseudonymous commenter stubbs reports. Here is what the Oxford English Dictionary reports:
3. a. At the present time; at this time, at present, now.
Apparently avoided in literary use between the 17th and 20th centuries, but in regular use in most English dialects and by Scottish writers; revived in the 20th cent. in the U.S., subsequently in Britain and elsewhere. Regarded by some usage writers, esp. after the mid 20th cent., as erroneous or ambiguous.

?a1425 (c1380) CHAUCER tr. Boethius De Consol. Philos. V. pr. vi. 122 The science of hym..lokith in his simple knowynge alle thingis of preterit ryght as thei weren idoon presently ryght now. c1450 (1410) J. WALTON tr. Boethius De Consol. Philos. (Linc. Cathedral 103) 325 {Th}e estate of souereigne god on hye Is stondyng euere in one..All-gates in hym-selfe presentlye. 1489 CAXTON tr. C. de Pisan Bk. Fayttes of Armes I. v. 11 Charles the fyfthe..fader of this that presently regneth. a1533 LD. BERNERS tr. A. de Guevara Golden Bk. Marcus Aurelius (1546) G g ij b, Dedes done presently in our daies. 1563 L. HUMPHREY Nobles of Nobilitye sig. vii, Wherfore the quaffing of the dutche Nobilitye is presently haled through al realmes. 1637 R. HUMFREY tr. St. Ambrose Christian Offices I. 31 A reward to be rendred hereafter, not presently. 1697 tr. C'tess D'Aunoy's Trav. (1706) 191 It is, says he, too long and melancholy a Mischance to relate presently. 1740 J. TULL Horse-hoeing Husb. Suppl. 257 Enough to make the Horse hoing common in Time to come, if not presently. 1764 T. REID Inquiry Human Mind vi. §17 The question presently under consideration. 1826 SCOTT Provinc. Antiq. 85 Sir William Rae, Baronet,..presently Lord Advocate. 1849 J. RUSKIN Seven Lamps Archit. vi. 171 Our presently disputed claims. 1897 A. GEIKIE Anc. Volcanoes Brit. I. I. i. 5 The presently active volcano must be the basis and starting-point of inquiry. 1901 Leeds Mercury 4 July, A young man belonging to Rotherham and presently staying with his parents at Bridlington. 1939 Topeka (Kansas) State Jrnl. 20 Feb. 12/1 Sunner is presently minister of interior and one of the outstanding leaders of the Falangists. 1957 G. MARX Let. 12 Apr. (1967) 213, I am presently building a house and doing my own show, but sometime within the next two months I'll make it. 1958 Economist 9 Aug. 433/1 The praise presently being heaped upon him seems to be..a consequence of the recent recovery in the Conservatives' fortunes. 1971 Nature 2 July 23/1 The Caribbean area is a subplate presently attached to the South American plate. 1997 Independent 5 May (Media Plus Suppl.) 4/1 Good Housekeeping..presently makes a tidy sum selling cookery books and kitchenware.

My question: Even if you are a prescriptivist, should you trust the prescriptions of "stubbs" and those who take his view, and treat the "at present" sense of "presently" as having been "introduce[d] into the language" by illiterates? Or should you take the view that what Chaucer, Sir Walter Scott, and Ruskin -- as well as many other users of the English language -- have written is actually quite literate?

More broadly, how can you, in the face of this evidence, claim that "At present does not mean presently"? What odd meanings of "does not mean" and "illiterates" would you need to use to make such claims?

38 Comments

"Misused":

Alan Gunn comments:

It's not possible, or even desirable, to stop English from changing in this way, but why should we encourage it, or think it always a good thing? I'd just add that changes like this not only make understanding more difficult during the transition, they end up making older writings hard for modern readers to understand. And some of the changes are downright ugly: to me, at least, an ordinary English word like "happen" sounds better than "transpire." (And I suspect the people who like words like "transpire" of trying to talk down to people who use normal English words. Lots of them seem to have gone to expensive schools, and to talk about their schooling at length.)

As it happens, I don't like "transpire" to mean "happen" for reasons similar to Alan's: "Happen" sounds simpler and less Latinate. But claims about how some new usage is supposedly a "change" -- especially, by implication a recent change (since all usages are novel if you go back far enough) -- always make me want to go check, preferably in the Oxford English Dictionary. And here's what I see in the OED:

b. Misused for: To occur, happen, take place.
Evidently arising from misunderstanding such a sentence as ‘What had transpired during his absence he did not know’.

1775 A. ADAMS Let. 31 July in J. & A. Adams Familiar Lett. Revolution (1876) 91 There is nothing new transpired since I wrote you last. 1804 Age of Inquiry (Hartford, Conn.) 46 When..the reformation transpired in England..almost the whole nation rejoiced. 1810 F. DUDLEY Amoroso I. 14 Could short-sighted mortality..foresee events that are about to transpire. 1828 WEBSTER, Transpire..3. To happen or come to pass. 1841 W. L. GARRISON in Life (1889) III. 16 An event..which we believe transpired eighteen hundred years ago. 1848 DICKENS Dombey xxxii, Few changes{em}hardly any{em}have transpired among his ship's company. 1858 HAWTHORNE Fr. & It. Note-bks. I. 225 Accurate information on whatever subject transpired. 1883 L. OLIPHANT Altiora Peto I. 277 His account of what transpired was so utterly unlike what I expected.

A few thoughts: First, the OED does say that the word is "Misused for ... happen," a rare bit of what looks like prescriptivism. Second, the "change" seems to have happened at least two centuries ago; the OED doesn't tell us how common a usage was, so maybe it's become much more common recently, but there certainly are plenty of attributions -- and not from obscure sources -- going back to the 1800s.

Third, the misusers include, among others, Dickens and Hawthorne. So the word has commonly been used in a particular way. It has been used this way for a long time. And it has been used this way by some of the leading English-language writers. How then can we report this as a "misuse" as opposed to just a use (or perhaps a use that originated from a misconception, though that hardly makes the use a misuse today)?

6 Comments

The Danger of Unverified Prescriptivist Complaints:

A commenter provides the following:

Back to the subject at hand: One of my own pet peeves is the use of "insure" where the writer clearly means "ensure". "Affect" for "effect" is just as bad, but not nearly as common; these days, it seems like everybody and his dog misuses "insure". I'd check a dictionary or style manual for support, but I'm worried that the new usage of "insure" has become so common that they may consider it correct.

Oh, buddy, it's worse than you can imagine. Much worse. From the Oxford English Dictionary definition of "insure" (definition 5 is the modern one, but I include #1 because of the back-reference to it in #5):

1. trans. To make (a person) sure (of a thing); to give security to (a person) for the fulfilment of something: cf. ASSURE v. 9, ENSURE v. 1, 2. Obs.

c1440 Promp. Parv. 262/2 Insuryn, or make suere, assecuro. 1681-6 J. SCOTT Chr. Life (1747) III. 21 Thus Christ..hath taken the most effectual Care to insure the mutual Performance of this everlasting Covenant to both Parties..to insure God of our performing our Part..and to insure us of God's performing his Part....

5. trans. To make certain, to secure, to guarantee (some thing, event, etc.): = ASSURE v. 5, 7a, ENSURE v. 8, 9.

1681-6 [see sense 1]. 1809 W. IRVING Knickerb. VII. xiii. (1849) 450 Such supineness insures the very evil from which it shrinks. 1821 MRS. SHERWOOD Hist. Geo. Desmond 19 He had insured for me the situation of a writer on the Bengal establishment. 1849 RUSKIN Sev. Lamps vi. §8. 170 Want of care in the points which insure the building's endurance. a1862 BUCKLE Civiliz. viii. (1873) 462 An ardour which could hardly fail to insure success.

It's not that the new usage of "insure" has made it "become" correct. It's that "insure" to mean "ensure" has been standard English since the late 1600s. "Insure" to mean "secure the payment of a sum of money in the event of loss of or damage to property" is attested in the OED only fifty years earlier (1635), and even that quote uses "ensure" and "insure" interchangeably: "Authorising your petitioner to ensure all your majesty's subjects whatsoever for soe much of their estates combustible as they themselves shall conceive in danger of Fire, not taking above 12d. per centum yearly for soe much soe insured."

Now as it happens I don't like "insure" to mean "ensure," either. Using "insure" may lead the reader to think of insurance, which may thus be slightly distracting. Such usage would almost never be ambiguous, because the following word or words will make clear which sense of "insure" is meant. And English is so full of words with multiple meanings that English speakers are unlikely to be much distracted by another such word. Still, I have an esthetic preference for limiting "insure" to situations involving insurance, and perhaps there's some practical benefit for following such a practice.

But it's one thing to say "potentially needlessly distracting," "esthetically displeasing," "inelegant," or "pet peeve[]" -- it's another to say "misuse[]" or "[not] correct." When current dictionaries report that this usage is common today (see, for instance, this Usage Note, this definition, and this definition), and when the usage has been attested in the Oxford English Dictionary since the late 1600s, how could even a prescriptivist credibly argue that it's wrong?

13 Comments

Blogging as a Constraint on Parenting Options:

A comment on the What Do Descriptivists Teach Their Children thread lead me to think: Will I practice what I preach with my children? Will I indeed teach them (once they're at an age to grasp this) that "ain't" is simply something that one would be wise not to use — for fear of being perceived as ill-educated — or will I break down and just insist that it's wrong, wrong, wrong?

I like to think that I'll teach my kids the truth as I see it — but in addition to the intellectual and moral reasons to do this, I have a more practical one: My views on "ain't" are now online. One day my boys will be able to look for them. And I can't afford to say anything that the results of a search for site:volokh.com "ain't" will contradict.

24 Comments

Fourth Amendment Rights in Files Stored on Password-Protected Websites: Does a user have a reasonable expectation of privacy in their files — including images of child pornography — posted on a password-protected website? In a decision handed down last week, Judge Stearns of the U.S. District Court for the District of Massachusetts concluded that the answer is "yes." At the same time, Judge Stearns refused to suppress the evidence in the particular case, finding that its collection was the fruits of a private search by a tipster. The case is United States v. D'Andrea.

  Unfortunately, the facts of the case are pretty gruesome, so here is a very brief version. The Massachusetts Department of Social Services received a call from a person reporting that another couple was molesting their 8-year old daughter and putting pictures of the molestation on a password-protected Sprint PCS website. The caller indicated that she was an ex-girlfriend of the man involved, and she told the officials the username and password of the website to access the pictures. A DSS official entered the username and password, accessed the website, and confirmed that images of the molestation were present. The official contacted the police, and the police obtained a warrant to search the couple's home. The woman was home when the warrant was executed; she was taken into custody and confessed to the crime. When charges were brought, both the man and the woman moved to suppress the images and the confession on the ground that they had a reasonable expectation of privacy in the stored files in the account and that the government access to the account without a warrant had violated the Fourth Amendment.

  In his opinion, Judge Stearns first concludes that a person has a reasonable expectation of privacy in the contents of files stored on password-protected websites. Judge Stearns relies on two authorities. The first authority is Professor LaFave's treatise:
Professor Warren [sic] LaFave, a preeminent authority on the Fourth Amendment, argues that a person who avails herself of a website’s password protection should be able to claim a reasonable expectation of privacy in the site’s contents. Professor LaFave makes the point that while a service provider has a need to access information regarding the identity of a site holder and the volume and extent of her usage, it has no legitimate reason to inspect the actual contents of the site, anymore than the postal service has a legitimate interest in reading the contents of first class mail, or a telephone company has a legitimate interest in listening to a customer’s conversations. “Reliance on protections such [as] individual computer accounts, password protection, and perhaps encryption of data should be no less reasonable than reliance upon locks, bolts, and burglar alarms, even though each form of protection is penetrable.”13 LaFave, 1 Search and Seizure § 2.6 at 721 (4th ed. 2006).
  Judge Stearns also relies heavily on the Sixth Circuit's Warshak case, quoting from it extensively.

  But having concluded that there is a reasonable expectation of privacy in password-protected websites, Judge Stearns then seems to reduce that entire discussion to dicta: he concludes that the defendant's Fourth Amendment rights weren't violated because the government officials that accessed the website merely reconstructed the private search of the anonymous caller.
This argument fails for the simple reason that [the government official] intruded no further into defendants’ zone of privacy than did the anonymous caller. Where a private party, acting on his or her own, searches a closed container, a subsequent warrantless search of the same container by government officials does not further burden the owner’s already frustrated expectation of privacy. United States v. Jacobsen, 466 U.S. 109, 117 (1984). “The additional invasions of [a defendant’s] privacy by the Government agent must be tested by the degree to which they exceeded the scope of the private search.” Id. at 115. Moreover, where an expectation of privacy in an item has been effectively destroyed by a private search, police do not violate the Fourth Amendment by examining the same item more thoroughly or with greater intensity so long as they do not “significantly expand” upon or “change the nature” of the underlying private search. United States v. Runyan, 275 F.3d 449, 464-465 (5th Cir. 2001).
  Judge Stearns then concludes that either the man or the woman must have given the password to the caller. True, both the man and the woman denied giving out the password. But Judge Stearns concludes in fn 17 that this must be false; there's no other way the caller could have learned the password without the man or woman giving it to her. So having given the password to the caller - at least according to Judge Stearns — the defendants had "assumed the risk" that she would access the account and tell the police about what she saw:
At day’s end, this case falls clearly into the “assumption of the risk” exception identified in Warshak and Supreme Court precedent. “It is well-settled that when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities, and if that occurs the Fourth Amendment does not prohibit governmental use of that information.” Jacobsen, 466 U.S. at 117. See also United States v. Maxwell, 45 M.J. 406, 419 (C.A.A.F. 1996) (the sender of an email runs the risk that its recipient will publish its contents). Thus, even granting defendants a reasonable expectation of privacy in the graphic website images of Jane Doe, by sharing the website access information with the anonymous caller, defendants took the risk that their right to privacy in the website’s contents could be compromised.
  Hmm, I'm not sure what I think of this case — either on the first section granting Fourth Amendment protection or the second part taking it away.
51 Comments

Song of Norway:

While composing my last post, I spilled some tea on my keyboard. I opened an empty browser window while attacking the affected keys with my napkin, so as not to mess up any of my already-open windows. When I looked up at the screen again, I had navigated to the Universitet i Oslo.

10 Comments

Recovering the lost English language:

In my last post, I quickly pooh-poohed the idea that, when someone talks about "correct" English, they mean inherently right (as opposed to good for a particular goal):

Because when different people are speaking mutually incomprehensibly, this is as if one were speaking German and the other were speaking Spanish. Nothing inherently wrong with that. If these different people are speaking differently than each other but they can still understand each other, it's like a German speaker and a Spanish speaker who each understand both German and Spanish — like when my father talks to me in Russian and I answer back in English. Nothing inherently wrong with that either. So the only way I can understand "right," in matters of language, is in the functional sense — "proper to achieve a particular goal."

Commenter Obelisk18 suggests that I dismiss the "inherently right" possibility too easily. An excerpt from him (slightly altered):

For instance, it’s plausible that one of two dialects, both of which are posing as "English", ought to be preferred (or thought "inherently good"), because it’s closer, in various ways, to what was originally meant by the word "English". Assuming of course that we can date the word "english", in relation to language, historically, and assuming that there was a general agreement on it’s meaning (i.e, a common usage). These are by no means easy assumptions, and based on what I know of history, the latter at least seems especially bold. But, I don’t think either is, on it’s face, unreasonable. After all, the word "English" did come into usage at some point, and the person, or persons, who first employed it, meant something by it. I’d [contend] that this is a plausible way of defining "inherently good".

Excellent, this has always been a long-term goal of mine. Because, you see, as I remarked once before on this blog, I actually know some English as it was originally meant. Let's all recite together:

Hwæt! Wé Gárdena in géardagum
þéodcyninga þrym gefrúnon,
hú ðá æþelingas ellen fremedon.
Oft Scyld Scéfing sceaþena þréatum
monegum maégþum meodosetla oftéah,
egsode Eorle syððan aérest wearð
féasceaft funden hé þæs frófre gebád,
wéox under wolcnum, weorðmyndum þáh
oð þæt him aéghwylc þára ymbsittendra
ofer hronráde hýran scolde,
gomban gyldan, þæt wæs gód cyning.

O.K., I hear you cry, not that far back. Sure, the word "English," in one spelling or another, was used way back around 880, Alfred and Guthrum's Treaty referred to the English and the Danes ("Engliscne & Deniscne"), and around 1000, Ethelred's laws talked about what would happen "gif Ænglisc man Deniscne ofslea" (if an English man slays a Dane). And the word was also used to refer to the language (c. 1000, "Ðu bæde me for oft Engliscra ȝewrita."). Nonetheless, we are, after all, Normans.

O.K., so let's all recite together (Chaucer is soooo 1387!):

Perle, pleasaunte to prynces paye
To clanly clos in golde so clere,
Oute of oryent, I hardyly saye,
Ne proued I neuer her precios pere.
So rounde, so reken in vche araye,
So smal, so smoþe her sydeȝ were,
Quere-so-euer I jugged gemmeȝ gaye,
I sette hyr sengeley in synglere.
Allas! I leste hyr in on erbere;
Þurȝ gresse to grounde hit fro me yot.
I dewyne, fordolked of luf-daungere
Of þat pryuy perle wythouten spot.

Start talking like that, and:

  1. you'll be welcome at my medieval reading group (Fridays in my office at noon), and

  2. I'll take you seriously when you say it's inherently better to use English to exclude new forms because the word "English" ought to refer to what it referred to originally. I'll laugh at you, but I'll take that particular argument seriously.

I'll still say:

  1. What if "English," at first, only referred to "the sloppy shorthand for whatever commonalities there happen to be among all the different dialects spoken by Anglo-Saxons in Britain"? I will bet good money that the first people who talked about the English language were not grammar purists. (Perhaps, however, they complained about how far Saxon had diverged from the original Saxon they spoke back in Saxony!)

  2. What if "English," as it's always been used, has always been a dynamic term, meaning the sloppy shorthand for whatever commonalities there happen to be, at whatever time is relevant from context, among some of the different dialects spoken in Britain? (Only some — mind the Celts!) (Obviously now we would include places outside of Britain where people speak in ways that are comprehensible to people in Britain who speak English under this definition.)

  3. And, most importantly, I'll say: O.K., suppose I buy the idea that "correct English" should mean "English as she used to be spoke." That's fine, I don't insist on labels. But if we define correct English that way, then I deny that there's anything necessarily good about speaking correct English. The point in my post below is: Always speak whatever it takes to best accomplish your goals, regardless whether it follows anybody's stated rule. There are rules of good and bad speaking — there are objectively better and worse ways of pursuing particular goals — but you can't figure out what they are until you figure out what you're trying to do, and in particular who you're trying to speak to.

36 Comments

How to get your personalized podcast

I'm offering personalized podcasts for people who pre-order my new book Discover Your Inner Economist: Use Incentives to Fall in Love, Survive Your Next Meeting, and Motivate Your Dentist, due out August 2. Here is the Amazon link. Here is the Barnes&Noble link.

The podcast is personalized because it is sent directly to you and because you get to choose the question I address. I will find this fun and a great challenge.

Podcasts are usually thought of as a mass medium but I would like to see if the idea of personalized podcasts can take off. If you pre-order the book between now and 8 p.m. Thursday (EST), let me know at tylersbook@gmail.com, of course send along your question, and I'll prepare the podcast and email it to you. You really can pick any question you want. Here are the full details of the offer.

Here's a recent article — from New York magazine — about me and the new book.

4 Comments

Language as Social Signal:

I agree with what Sasha and Eugene have said about the descriptivist view of language, but I think language serves an instrumental goal that has yet to be explicitly described. By speaking (or at least attempting to do so) proper English, I not only potentially impress the elites with my intelligence, I send a signal to the population broadly that I am the type of person who knows and conforms with social norms. This signal labels me as a probable "cooperator" rather than "defector" in human interactions, and thus a good bet to treat them in a trustworthy way in a variety of social or business interactions that might arise. Someone who speaks improper English, much like someone who sports an eyebrow ring, signals a disinclination to comply with customary social norms, and marks themselves as a bad candidate for trust.

26 Comments

The Case for Paying Dead Farmers Not to Farm Instead of Living Ones:

Jonathan Adler's post about how the federal government pays dead farmers not to farm has generated predictable outrage from commenters. I sympathize. But the critics are ignoring some important reasons why paying dead farmers not to farm is a lot better than paying living ones.

It's hard to deny that dead farmers can do just as good a job of not farming as living ones; perhaps even better! At the very least, paying the dead not to farm isn't worse than paying the living to do the same "job." However, there are three major reasons why it's actually likely to be better.

I. Lower Enforcement Costs.

When you pay living farmers not to farm, there are going to be enforcement costs. Those ungrateful peasants might be tempted to do some illicit farming on the side in order to make an extra buck or two. You may even have to file a lawsuit to get them to stop their nefarious black market farming. If you're really unlucky, the case might even go all the way to the Supreme Court, and then you're talking really big litigation expenses. By contrast, enforcement costs are rarely a problem when it comes to the dead.

II. Lower Deadweight Losses to Society.

When you pay living farmers not to farm, you deter them from engaging in productive activity that might benefit society as a whole. You reduce the production of food and raise the cost of living, especially for the poor. You don't have to worry about any of that when you pay the dead.

III. Less Rent-Seeking.

Once you start subsidizing the living, they will have strong incentives to lobby for ever larger subsidies and to reward politicians who hand them out, while punishing those who refuse. This activity increases deadweight losses by deterring ever-more productive activity, and also by diverting resources to the unproductive activity of lobbying and away from the socially useful purposes. Economists call this "rent dissipation." The good news: the vicious cycle of rent-seeking, lobbying, and rent dissipation is not a problem if subsidies for not farming are confined to the dead.

The Bottom Line.

I'd prefer that we abolish subsidies for not farming entirely. But if we have to have them, I hope as much of the money as possible goes to the dead.

Related Posts (on one page):

  1. The Case for Paying Dead Farmers Not to Farm Instead of Living Ones:
  2. Paying Dead Farmers Not to Farm:
23 Comments

Putting the Socialism Back Into National Socialism:

The idea that Nazism was an extreme form of "capitalism" and Hitler primarily a tool serving the interests of "big business" is a longstanding myth that even now retains a measure of popularity in some quarters. This, despite the fact that the full name of the Nazi Party was the National Socialist German Workers' Party, and that Nazi political strategy was explicitly based on combining the appeal of socialism with that of nationalism (thus the choice of name). Once in power, the Nazis even went so far as to institute a Four Year Plan for running the German economy, modeled in large part on the Soviet Union's Five Year Plans.

I. The Socialist Elements of Nazism.

Two recent books further explain the socialist elements of Nazi economic policy, and will hopefully put the final nails in the coffin of the myth that the Nazis were "capitalists" or free marketeers. In The Wages of Destruction: The Making and Breaking of the Nazi Economy, historian Adam Tooze describes the statist nature of Nazi economic policy in great detail, and concludes that the Nazis imposed greater government control over the economy than any other noncommunist regime in modern history. (pp. 658-60). Tooze notes that, even before the outbreak of World War II, government military spending accounted for some 20% of the GDP, while much of the rest of the economy came under government control as a result of the Four Year Plan and other similar measures.

In Hitler's Beneficiaries: : Plunder, Racial War, and the Nazi Welfare State, Gotz Aly argues on the basis of extensive evidence, that German support for Nazi rule was maintained by the creation of a massive welfare state funded in large part by plunder captured in Hitler's foreign conquests, but also partly by means of "soak the rich" taxation within Germany itself.

Some nonetheless persist in viewing the Nazi economic system as "capitalist" because 1) some big businessmen (such as the Krupps) supported the Nazi regime, and 2) most of the means of production remained under private rather than state ownership. It is certainly true that much industrial capital remained formally under private ownership under the Nazis. However, under the Four Year Plan and other similar policies, it was primarily the government that determined what goods would be produced, what prices would be charged, and (in many cases) who would be the consumers. "Capitalist" private firms in Nazi Germany played a role far more similar to that of socialist managers of enterprises in the Soviet Union than that of actual capitalists in a market system. The Krupps and others certainly profited greatly under the Nazis, but so too did high-ranking Communist Party enterprise managers in the Soviet Union. Neither, however, detracted from the state's ultimate control over economic production. All of this is described by Tooze in much greater detail than I can do here.

These two new books are useful complements to Avraham Barkai's 1990 work Nazi Economics, which explored the ideological origins of Nazi economic policy and showed how Nazi economic theorists explicitly advocated statism, while rejecting free markets. Like some modern opponents of globalization and free trade, the Nazis viewed economics as a zero-sum game between nations, where increasing wealth for one country could, in the long run, only be achieved by impoverishing or conquering others.

II. Why it Mattters Today.

Why does any of this matter today? The fact that the Nazis pursued socialist policies does not in and of itself discredit socialism, any more than Hitler's apparent commitment to vegetarianism discredits the case against eating meat.

Nonetheless, the socialist element of National Socialism matters for three reasons. First, as noted above, some still claim that Nazism was a form of "capitalism" and try to use this association to discredit free markets. Second, and far more important, Tooze and Aly show that far-reaching state control over the economy was an essential element in Nazi policy, without which Hitler could not have carried out his plans for conquest and mass murder. It also helped quiesce potential German opposition to Nazi policies; both by imposing state control on economic resources that any opposition movement would need to support itself, and by "buying off" potential opponents through welfare state handouts (as Aly emphasizes).

The concentration of economic power in the hands of the state does not always lead to atrocities as extreme as Hitler's. But it does significantly increase the risk that these types of abuses will occur - not to mention numerous lesser (though still severe) atrocities. In the twentieth century, both left-wing (communist) and right-wing (Nazi) forms of state domination of the ecoomy paved the way for war, repression, and mass murder. There is little reason to expect better results from similar policies in the future. This is an important point, given the recent renewed popularity of socialist ideas in some parts of the Third World, such as parts of Latin American.

Finally, Barkai's discussion of Hitler's view of the world economy bears a remarkable similarity to the analysis put forward by many of today's opponents of free trade and globalization. Both view the world economy as a zero sum game; both reject the possibility that free international trade can provide for a growing population and lead to the development of "have not" nations; and both claim that the wealthy nations of the West had "rigged" the rules of the international economic game in their favor. Japanese nationalists of the 1930s held similar views. In another important recent book, Ian Kershaw shows that the Nazis and their Japanese allies embarked on a policy of conquest in large part because they believed it was the only road to longterm prosperity for their growing populations, prosperity that they thought could never be achieved through integration into the international capitalist system.

While today's antiglobalists propose global regulation and trade restriction rather than conquest as cures, their diagnosis of the disease is strikingly similar to that put forward by the Nazis and Japanese nationalists 70 years ago. Today, most would agree that the Nazi view of the world economy was disastrously wrong. The postwar prosperity of Germany and Japan - achieved by pursuing the very sorts of growth and trade-oriented policies that the Nazis condemned as ineffectual - is strong proof of that.

It is theoretically possible that the Nazis were simply ahead of their time. Perhaps their view of the world economy was unsound in the 1930s, but - with marginal modifications - an accurate portrayal of today's world. But we should also consider the far more likely possibility that the Nazi critique of world capitalism is just as wrong today as it was in Hitler's time.

UPDATE: To avoid possible misunderstanding, I should mention that, in my view, Aly's book is the weakest of the ones I discuss in the post, and I have some reservations about his thesis. To briefly summarize, I think that Aly overstates the role of plunder-financed welfare state benefits in strengthening popular support for Nazism, and understates the role of other factors (such as ideological indoctrination and repression of opposition groups). Nonetheless, the causal mechanism emphasized by Aly surely did play a major role.

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Monday, July 23, 2007

What means this "English"?:

Eugene and I think fairly similarly in matters of language, and I don't disagree with anything he's said so far. However, I want to make a more radical statement. Perhaps Eugene agrees with it, but I want to express it more nakedly. There is no such thing as the English language. Every person speaks slightly differently, understands a slightly different set of words, uses words slightly differently. When we say that a set of people "speaks English," this is a sloppy shorthand that means that when each of them speaks the way he normally speaks, the other people in the set can mostly understand what he's saying, and the meaning he's trying to convey is more or less the meaning they get. It's just an empirical statement about the degree of overlap between each person's "language."

This is all well and good, and we can keep using the shorthand of talking about "speaking English" for most purposes. Where the shorthand reveals its sloppiness, though, is when we see different people using different forms, possibly mutually incomprehensible forms, and say that one of them is "right."

But whenever we say that something is "right," we have to know what it's right for. "Right" can be meant either (1) as "proper to achieve a particular goal" or (2) as "inherently good." Now (2) seems implausible to me. Because when different people are speaking mutually incomprehensibly, this is as if one were speaking German and the other were speaking Spanish. Nothing inherently wrong with that. If these different people are speaking differently than each other but they can still understand each other, it's like a German speaker and a Spanish speaker who each understand both German and Spanish -- like when my father talks to me in Russian and I answer back in English. Nothing inherently wrong with that either. So the only way I can understand "right," in matters of language, is in the functional sense -- "proper to achieve a particular goal."

So to say that a usage is "right" or "wrong," you have to specify what goal you want to achieve. If I'm living in the inner city and my goal is to blend in, talking like a college professor is incorrect. Speaking African American Vernacular English (as the kids are saying these days) may be correct, though perhaps not if I'm white, and perhaps not if I seem like an outsider. Likewise, if my goal is to persuade people in the inner city, talking like a college professor may be incorrect -- just as it's incorrect to use a libertarian argument in support of policy if you're talking to a Marxist. On the other hand, if I think talking like a college professor will give me an air of authority that will make people do what I say, then talking like a college professor may well be correct. If I'm trying to get a job at a prestigious New York law firm, speaking Southern American English may be incorrect; but it can be correct if I have a radio talk show in Alabama and want to get my ratings up.

These are all different languages -- not "correct" and "incorrect" versions of some mass of dialects we sloppily label "English" -- and any one of them might be appropriate to know for a particular social situation. To say that a particular usage is "right" -- without, at least implicitly, having a "right for what?" in mind -- is like saying that a particular government program is "effective" without specifying a criterion of effectiveness.

But ah, one may validly ask, what do you teach your kids? What should we teach in schools?

In the first place, our kids should learn that with language -- like with all other tasks -- you should use the tools appropriate for what you're trying to do. Just as people might learn Spanish if they want to communicate with (what we might sloppily call) "Spanish speakers," they might learn Cajun English if they need to do social work in the bayou.

In the second place, we should usually spend most of our time teaching our kids to talk like rich and educated people in the United States. Not because that dialect is better, but because our kids will tend to be more materially successful in life if they know how to speak that dialect, and that's part of what most of us want for our kids. This is classist and elitist, and we might as well admit it; our kids should learn the dialect of the elite class, no matter how irrational it is, so they, too, can someday join that elite class. (Even if you would like to overthrow that elite class, wouldn't it be more effective to have a mole working on the inside?)

Thus, we can say "ain't" is "incorrect" for the simple reason that it'll make people less likely to give you high-paying jobs and positions of power -- assuming that you want those high-paying jobs or positions of power. Nonetheless, someone who knows many different versions of (so-called) "English" for many different social situations -- even if he doesn't know any of the (so-called) "foreign" languages -- is a true polyglot.

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Descriptivism and What Words Mean:

A commenter asks, "Why is it OK to prescribe, and indeed proscribe, vocabulary, but not syntax?"

My sense is that descriptivists — and certainly this descriptivist — think that the guide to vocabulary is usage: An English word means what English speakers use it to mean. Dictionaries that reflect a word's meaning also tend to preserve that meaning, because they tend to lead people who consult the dictionary to use the word the same way.

Consider an example: Many English speakers use "presently" to mean "at present" and many use it to mean "in the near future." I see no basis for saying that one or the other usage is "wrong." One or both usages may be dangerous: People who want to avoid puzzling some listeners should probably avoid the "in the near future" usage, and people who want to avoid alienating some listeners may want to avoid the "at present" usage. What's more, the danger may be unnecessary: One can usually just say "now" or "soon," as the case may be, instead. But while there may be reason to avoid one or both meanings, I see no reason for calling either incorrect.

Of course, this doesn't mean that anything goes: If I use "presently" to mean "with presents," as in "I'm coming to your birthday party presently," I've made a mistake, because I've departed from the norms of actual usage. Likewise if I write the word as "presenly," or pronounce it with the emphasis on the "sent."

But to a descriptivist, the test is actual usage. If some self-appointed language policeman insists that "presently" can only mean "in the near future," the descriptivist will demand to see a warrant. And since the descriptivist respects no warrant other than the grown order of the English language as it has in fact grown, the descriptivist will ignore the policeman's complaint as being the policeman's private prejudice rather than an obligatory language rule.

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Looking for Two Phrases:

I vaguely recall hearing two phrases about language, which were roughly:

1. Understand as the learned, but speak as the common. (This was apparently a translation from Latin.)

2. Unlike with morals, where our goal should be to act better than one's neighbors, with language our goal should be to speak just like our neighbors.

Unfortunately, I don't recall the precise wording, except to remember that it was considerably better than what I reproduce above. Can anyone remind me what the quotes were?

By the way, I realize that proverbs like this aren't always exactly right, and are in any event oversimplifications. Naturally, it's generally good to speak more accurately, more precisely, and more clearly than your neighbors -- the point of both sayings is simply that effective communication usually calls for a style that is familiar to listeners, and that doesn't distract or alienate listeners by departing too much from the norms of the listeners' place and class.

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Goldstein on the GOP Short List: Over at SCOTUSblog, Tommy Goldstein follows up his post on the Democratic short-list with a new post on a Republican short-list. Once again it's all speculation, but it's interesting speculation. A few comments:

   First, assuming the President replaces a retiring Justice who is a white male, I don't think a future GOP President is likely to see the race and gender of a nominee as being as important as Tommy thinks. It would be a significant thumb on the scale, but not the end-all-be-all. Why? Well, consider the failed nomination of Harriett Miers. Bush didn't get a lot of credit from either side for nominating a woman to fill O'Connor's slot. On the other hand, Bush's picks of Roberts and Alito remain two of his most popular decisions among Republicans (if not the two most popular decisions — heck, if not the only two popular decisions). I think that's probably a reflection of how these things will shake out for future GOP picks.

  Second, it's hard to come up with new names for a GOP pick because we've been through the basic list twice in the last two years for the Rehnquist and O'Connor vacancies. If I had to put together my own list, however, I would probably focus on some of the young conservative lower-court Bush appointees. In addition to Michael McConnell of the Tenth Circuit, always a VC favorite, I would keep an eye out for folks like Steven Colloton of the Eighth Circuit, Wiliam Pryor of the Eleventh Circuit, and Paul Cassell of the U.S. District Court for the District of Utah.

  Third, I agree with Tommy that Paul Clement will have a very good chance of being on a short list some day. He's a star.

  Finally, one obvious variable in this discussion is how much pressure a future GOP President would feel to nominate a moderate and avoid a difficult confirmation battle. I think there would be less pressure than Goldstein seems to think. The key is that for the foreseeable future, every confirmation of a GOP nominee is going to be a difficult confirmation. If a straight arrow like Sam Alito draws a 58-42 vote in a Republican-controlled Senate, then the era of 99-0 Senate votes — and the boosts from an easily-confirmed pick that go with them — is probably over. Given the importance of judges to the GOP base, I think a future GOP President still would have a significant incentive to nominate a relatively conservative candidate rather than a moderate.

  That's my guess, at least. What are your thoughts?
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What Do Descriptivists Teach Their Children?

A commenter asks a good question: "What do anti-prescriptivists tell their own children?"

My children are 2 and 3, and I'm told that at those ages it's more effective just to speak around your children the way you want them to speak, rather than setting rules for them. But I've certainly thought about what I ought to tell my children eventually; here are a few thoughts, with the understanding that "no battle plan survives contact with the enemy."

1. Be age-appropriate. A nuanced rule that may work for an older teenager might not work well for a younger child.

2. Teach children to speak and write in ways that will serve them well. My goal isn't to make sure that my child follows the technical rules of grammar. My goal is to make sure that he can speak and write in ways that are clear, that make him look educated, and that will make him seem pleasant and careful rather than pompous and offputting.

There's nothing wrong with the word "ain't," which has been used for centuries, and which I can find no abstract logical reason for condemning. It's just that today using it will lead quite a few people to think the less of you -- much more so than splitting infinitives would, for instance -- and the safe bet is to avoid it, except in fairly clearly jocular contexts. Likewise, there are lots of sesquipedalian words that aren't "wrong," but that one generally shouldn't use (though one should know in case others use them).

3. Teach older children to be skeptical of language myths. I plan to teach my children to be skeptical generally. But language is one area where I've come across especially many enduring myths, including myths -- about grammar, usage, etymology, and more. Children should learn that, so that they can develop their skepticism, and so that they can better learn what the actual rules are (and of course there are rules, just rules that are dictated by actual usage).

4. Explain to older children that English is a grown order, not a made order. This is itself an interesting and useful observation, but it may also help them think about how other things (such as markets) are largely grown orders.

5. Try to get my children to be interested in -- even fascinated by -- the language. I get a lot of pleasure out of thinking, reading, and talking about language, and I hope they will, too. And I think that thinking and caring about language will make one a more knowledgeable, careful, and effective user of the language.

6. Teach children not to correct others' grammar and usage, except in certain contexts and manners in which such correction is socially acceptable. As I noted before, that's both a good way of avoiding social friction, and a good way of avoiding the embarrassment of finding that the speaker you're correcting was actually quite right, and that your correction was incorrect.

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The Trouble with Some Prescriptivist Claims:

One thing that bugs me about many prescriptivist claims (not all, just many) is that they just don't do much to prove that the prescription on which they are relying is indeed in any meaningful sense authoritative. Even if one accepts that "proper English" is to be defined by The Authorities, one needs to further show that The Authorities indeed frown on the particular usage. Instead, one often (again, not always, but often) gets a mix of the following:

1. Bare assertion: Someone says "forte," in the sense of "strength," as "for-tay." Wrong, someone else says, because the right way of saying it is "fort." But even a prescriptivist has to explain why this common pronunciation violates some particular prescriptive rule. Yet often prescriptivists don't point to any such rule — in this instance, for instance, the person who made the objection didn't point to the rule, and I doubt that she could have pointed to such a rule (judging by the sources I've consulted).

In conversation, of course there's no time to look up the term and to give a more complete argument. Some people, though, avoid that by not correcting other people's pronunciation — whether as a matter of good manners or just as a matter of caution, since there are lots of usage and pronunciation myths out there (and I mean myths that even many prescriptivists, I'd wager, would acknowledge as myths). Unless you're very sure of yourself, there's a good chance that the complaint you're about to make is unfounded even for prescriptivists.

In writing, there often is time to check one's claims, and find support for them. Why not do so? If you're going to argue that someone got something wrong, why not make sure that it is he who is wrong, and also find a source that you can cite supporting your claim? In some situations, the error may be so uncontroversial that just pointing out will lead the reader to realize that an error has been made. (I'm happy to get e-mails pointing to typos and other errors, since then I can correct the post; and the great majority of these messages point to mistakes that are entirely uncontroversially mistakes.) But if there's some controversy, it seems that it would be helpful to figure out for sure if one is right, again by prescriptivist standards.

2. My teacher said so: A commenter writes,

Though I recognize that English is a living therefore mutable language I find that I remain a prescriptivist. I had a strict 7th grade English teacher who would never have permitted, "...to carefully say...". Split infinitives warrented rewrights of entire paragraphs. Perhaps we need to asssign some linguistic norms to "cultural literacy" in addition to correct or acceptable grammar.

The trouble is that not everything your 7th grade English teacher told you is necessarily so. As it happens, many eminently respected usage commentators — such as Fowler, for instance — have challenged the claim that split infinitives are wrong, and have argued that there is no basis for thinking that "no split infinitives" is a legitimate prescription. Perhaps they are the ones who are mistaken; but your 7th grade English teacher's say-so shouldn't be the deciding factor. More broadly, keep in mind that your teacher (1) might have been trying to teach you what she thought was clear or elegant usage, even at the expense of mislabeling as "wrong" usages that were grammatically sound but unclear, (2) might have been oversimplifying complex rules for the purposes of teaching you more effectively, (3) might have been a partisan of one side of the debate, and not told you that the "rules" she was teaching you were controversial, (4) might have been repeating usage myths that were passed along to her by her own teachers, or (5) might have been misremembered by you. Certainly her say-so isn't enough to define "correct or acceptable grammar" or "cultural literacy."

3. I am a language maven and I say so: One commenter, who has firm views that the subjunctive remains obligatory in prescriptive English in a certain context, reports that he is "a language maven with a stack of style manuals on my desk, paid to edit medical and technical literature and to coach students in taking the SAT." His view is that those who disagree with him on this must therefore be "ignoran[t] of simple, straightforward language rules," and is "a challenged speaker of English who writes as if he had never studied, let alone mastered, another language" (or so judged by "the erudite," apparently a category in which the commenter fits). Oddly enough, the commenter does not actually quote the manuals from the stack on his desk.

4. Your style manual is descriptivist bunk: I actually like to look things up in style manuals, and quote them. Thus, for instance, when writing about whether the subjunctive remains obligatory in English, I looked it up in Merriam-Webster's Webster's Dictionary of English Usage. Ah, some object, but that authority is descriptivist. Very well; Fowler reported the subjunctive to be generally dying, and while it is alive for "if ... were clauses expressing a hypothesis," he does not report is as obligatory. Burchfield's third edition of Fowler reports that it has enjoyed a resurgence, but it too does not claim that it is obligatory. The American Heritage does say that "According to traditional rules, you use the subjunctive to describe an occurrence that you have presupposed to be contrary to fact," though this doesn't resolve whether the traditional rules still remain the rules — and, more importantly, it doesn't resolve whether the subjunctive is obligatory in the context in which I used it, where my point was that the presupposed occurrence was not contrary to fact, but rather that its accuracy was controversial. The Columbia Guide isn't clear on this, but it does report that there is "much more divided usage and much more argument about the appropriate usage" on the was/were subjunctive than on the "finite verb" subjunctive ("In conditions contrary to fact, for example, finite verbs such as arrive are rarely put into the subjunctive, except in the most careful Formal English.").

So what we have is disagreement among respected authorities, with at least a good deal of acknowledgment that there is "argument about the appropriate usage." Doubtless the descriptivist sources are the most accepting of a broad range of common usage. But either some prescriptivist sources do at least acknowledge the uncertainty, or the bulk of the authorities has become descriptivist. (Both might also be true.) What basis is there for those who look to the Authorities to simply disregard so many sources? Sure, if all the authorities become descriptivist, then that makes it hard for prescriptivists who care about the authorities. But that's part of the problem with prescriptivism: If you think the prescriptions of the authorities should define the language, you're in trouble when the authorities disagree with that view.

5. But we need rules! Some prescriptivists at this point turn to a general defense of prescriptivism, and of the importance of rules. Very well; at some point, even descriptivists agree with this — rules of grammar are important, and there are plenty of rules that actually do operate in the speech and writing of the great bulk of English speakers. You'll never hear someone saying "I have write to an e-mail" instead of "I have to write an e-mail." There surely is a rule of grammar related to infinitives in play here.

But that there should be rules — and even that there should be rules condemning common usage as well as descriptively highly deviant usage (a matter on prescriptivists and descriptivists do generally disagree) — is not much of an argument in favor of this particular rule. Accepting prescriptivism in general doesn't entail condemning split infinitives as wrong unless one can point so some binding prescription about split infinitives.

6. And we need clarity and precision: Some prescriptivists at time defend prescriptivism on the grounds that certain prescriptivist rules foster clarity and precision, and avoid ambiguity. But, first, not all unclear or imprecise usages are wrong, even if a clear or precise one is better. And, second, many of the often-condemned usages are not at all unclear or imprecise. "To boldly go where no man has gone before" is no less clear or precise than "Boldly to go where no man has gone before." And in fact, sometimes split infinitives are clearer and less ambiguous than the unsplit ones. "To [adverb] [verb]" makes clear that the adverb modifies the verb; in "[adverb] to [verb]" and "to [verb] [adverb]" the adverb might apply to the preceding or following verbs. Consider Garner's example, "she expects to more than double her profits next year," or Fowler's, "modifications intended to better equip successful candidates for careers in India," and see what happens when the "more than" or "better" gets moved outside the infinitive.

7. If you violate these rules, you'll annoy your prescriptivist readers: Finally, some readers argue that splitting infinitives, putting prepositions at the end of sentences, or violating various other supposed prescriptions simply annoys some readers, and makes them think the less of you. This is the argument I most sympathize with, because it's a descriptivist argument: Though a usage may track what many people, and maybe even almost all people, say and write, it may annoy the remainder so much that cautious writers ought to avoid it. And that's true even if the prescription is utter myth — for instance, if, as with the claim that it's wrong to put a preposition at the end of a sentence, virtually no major reference work accepts the prescription (or at least so my research has led me to conclude). So long as the myth is prevalent enough, one should take it into account, an odd analog of the descriptivist claim that once a usage is prevalent enough, we cannot condemn it as "wrong."

Yet while careful writers should think about this — in fact, I warn students whom I'm advising when they use words that arouse hostility, even if I think the hostility is unjustified — this is an argument about what's prudent, not about what's right. That people are hostile to prepositions at the end of sentences, and believe that there's a rule of grammar condemning them, doesn't make such placement of prepositions wrong as a grammatical matter.

So if you're a prescriptivist, I might not be able to persuade you to convert to descriptivism. But at least I hope that some prescriptivists may be convinced to be more careful about the prescriptivist claims they make. If they argue that the rules of good grammar should be set by authorities, they ought to explain which authorities support the rule they're invoking, and why those authorities — as opposed to whatever rival authorities there may be — are the ones that we should see as binding.

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Proceedings of the Old Bailey, 1674-1834: I was in London on Friday and visited the Old Bailey, London's famous criminal court that has been operating since the 17th century. Unfortunately I arrived too late to see any trials. However, when googling around for directions I learned that a group of universities have posted the complete Proceedings of the Old Bailey from 1674 to 1834.

  The database has the original reports of more than 100,000 trials at the Old Bailey, and it's all in searchable form. The site is incredibly easy to use, and the trial reports are short and easy to read. I realize that only serious criminal law or legal history geeks will get a kick out of this, but if you fit that category the site is definitely worth checking out.
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Regulating Dangerous Dogs:

An article in today's New York Times (here) discusses a Virginia law governing dogs that have been declared dangerous by a court for attacking a person. The dogs go on a public registry, similar to a sex offender registry, and the owners are required to carry a $100,000 liability insurance policy.

The registry seems a bit silly: are people really going to consult the directory and make a housing purchase decision because a dog who has bitten lives nearby? It might be somewhat more useful for someone choosing a jogging route, but if you've never seen the felonious canine where you jog or walk, you probably aren't going to change your behavior based on the small chance that Cujo might jump over the fence when you are passing by.

The liability insurance requirement, on the other hand, is an excellent idea. If you want to own a dangerous dog, why should the rest of us bear the risk? Homeowners insurance often covers dog bites, but many policy have exclusions and, of course, many dog owners are not home owners. I don't have data, but I would hazard a guess that a fair number of "dangerous dog" owners are judgment proof.

The idea of the insurance requirement might even be a way to break the longstanding stalemate over "dangerous breed" regulation. A number of localities have passed laws against the ownership of dangerous breeds — usually pit bulls and Rottweilers. I have no problem with these laws. Dog bites are a serious problem: they send 800,000 people to the emergency room every year, half of them children. And these two breeds are responsible for 1/2 to 2/3 of fatal or near fatal bits, depending on the study. I love dogs (and own one), but I don't think that prohibiting people from owning certain types of dogs is a significant infringement on liberty. I do realize, however, that, as a practical matter, "dangerous breed" laws raise a lot of opposition on the grounds that individual dogs that are properly trained are (usually) not dangerous, regardless of the breed, and that if certain breeds are banned, people who want aggressive dogs will just teach other breeds to be aggressive. So how about a compromise position? If you want to own a pitt bull or Rottweiler you must have liability insurance, just like you must have auto insurance if you want to operate a car.

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Cap,Trade, Fail:

Sebastian Mallaby has an interesting column warning that an ill-conceived and poorly designed cap-and-trade system for carbon emissions will not do much to control emissions or encourage environmentally responsible development in poorer nations.

It would be great if carbon policy could get out of its timid rut: energy bills that raise fuel-efficiency standards, subsidize windmills and so on. It would be great if Congress could get serious about reducing emissions across the whole economy, either by taxing carbon or by capping it. But if Congress creates a mandatory cap-and-trade system that mimics Kyoto's clunkiness, it will funnel billions to Chinese industrialists, creating perverse incentives for greater emissions. And Nicaraguan villagers will be cheated.

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Parents Guilty for Permitting Drinking in Their Home:

I didn't see the trial, so I don't have an opinion whether the verdict was justified on the facts. But more pertinent to me is what strikes me of the infantilization of people who should be considered adults. According to this news report, the "kid" holding the party was 18 years old. Two "teens" who died in a crash by the parents' driveway were also 18, and they apparently left the party, smoked pot, and then got into an accident when they returned, which surely makes it seem like these kids had access to intoxicating substances regardless of what their friends' parents did:

"This is a case about the disturbing lack of parental responsibility," Fisz said. "These defendants want you to believe they had no idea what was going on in the basement, despite the fact that they were one staircase away the entire night."

Fisz and lead prosecutor Christen Bishop spent much of their closing arguments on blasting the Hutsells for allowing drinking in their home.

"These are not kids who are flying under the radar screen," Bishop said. "These are parents who turned the radar off. They were the weak link in the parenting chain that night."

The Hutsells' defense attorneys, Robert Gevirtz and Elliot Pinsel countered these claims by telling the jury that their clients did not know the teens were drinking and that they never saw alcohol.

Gevirtz told the jury that his client, Jeffery Hutsell was an upstanding person and would not idly sit by and allow kids to drink.

"The only question is did he know (they were drinking)? It's not what he should have done. It's not what he could have done," Gevirtz said. "The kids made their own decisions. They made the decision to drink, they made the decision to go to the car and smoke dope."

You would never know from the quotes from either the prosecutor or the defense attorney that the "kids" involved were eighteen. I recognize that for many purpose, the age of majority is twenty-one, and of course responsible parents shouldn't allow underage drinking in their home, not least because it's illegal and can get them in trouble. But spare me the notion that eighteen year-olds should be considered "kids," passing off responsibility for their actions to "parents."

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Ample Alternative Channels:

I've argued earlier that the Court has been right to treat content-based speech restrictions much more harshly than content-neutral speech restrictions. But this left open the question: Why should the Court be so skeptical even about modest content-based regulations, which don't entirely ban certain ideas but merely restrict them while leaving open ample alternative channels? Such a test is applicable to content-neutral restrictions — why not content-based ones? Here is my answer, adapted from my Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances," and the Uncharted Zones, 90 Cornell L. Rev. 1277 (2005).

The Limits of the “Ample Alternative Channels” Inquiry, Both as to Content-Neutral Restrictions and as to Content-Based Restrictions: I have argued that content-based restrictions are dangerous because they risk broadly suppressing certain viewpoints or facts. But one could respond that, instead of presumptively prohibiting content-based speech restrictions, courts could try to prevent serious burdens on speech the same way they do with content-neutral restrictions: by asking whether the restrictions leave open “ample alternative channels” for expression.

I think, though, that the Court has been right to reject such proposals and to treat content-based restrictions as presumptively unconstitutional without an inquiry into how much the restriction burdens speech or into whether the restriction leaves open ample alternative channels. To begin with, the record of the ample alternative channels inquiry in the content-neutral restriction test hasn’t been very good. The Court has at times applied it in a demanding manner, for instance insisting that alternative channels aren’t ample if they materially raise the price of speaking, make it harder for speakers to reach the same listeners, or subtly influence the content of the message by changing the medium. But at other times, the Justices have treated this requirement as only a weak constraint. Such a disparity is to be expected given the vagueness of the term “ample.”

In fact, the chief practical limit on content-neutral restrictions has not been the “ample alternative channels” inquiry, but the political reality mentioned above: Most realistically enactable restrictions on the noncommunicative aspects of speech do leave open fairly substantial alternative channels for expressing the same ideas. So even if the Court underenforces the ample alternative channels prong, few views or subjects will likely be broadly silenced.

But it’s much more likely that a politically feasible restriction on the communicative aspects of speech will substantially block people from expressing a particular viewpoint. This is true even when the restriction is framed as facially content-neutral, or even as speech-neutral — consider, for instance, the Espionage Act in Schenck. Judicial underenforcement of the ample alternative channels prong for content-based restrictions would thus be much more dangerous than underenforcement in the context of content-neutral restraints.

The Limits of the “Ample Alternative Channels” Inquiry as to Content-Based Restrictions: Judicial underenforcement of the ample alternative channels prong would also be more likely when the case involves content-based restrictions, whether they are facially content-based or content-based as applied. “Ample” is a vague term, and one that requires contestable predictions about the law’s effects on a complex system of speakers and listeners. There is a large gray area in which the quality of the alternative channels would be hard to estimate.

And when the restriction will likely cover only a particular message — pro-boycott speech, anti-draft speech, and so on — the normal risk of judicial error and deliberate or subconscious prejudice is magnified because the judges know well which side of the political debate will lose as a result of their decision. In such a scenario, it’s especially likely that judges will apply the vague “ample alternative channels” standard in a way that’s not protective enough of unpopular speakers. It is probably no accident that the low water mark of the requirement, City of Renton v. Playtime Theatres, Inc., involved a restriction that was limited to sexually-themed speech, even though the Court treated the restriction as content-neutral.

Moreover, one restriction aimed at the communicative impact of certain speech is likely to be followed by other such restrictions. Content-based restrictions don’t appear randomly: They arise because some fairly powerful segment of society (in government or out of it) believes that a certain kind of speech is dangerous, or — as to laws that aren’t facially content-based but are content-based as applied — believes that all conduct that’s likely to cause certain effects is dangerous.

If such a group succeeds in restricting, say, Communist speech in some contexts, it seems likely that it will also want to restrict Communist speech in other contexts. Likewise, if a movement tries to restrict bigoted speech in workplaces, perhaps using generally applicable hostile work environment harassment law, it will also likely try to use similar educational and public accommodations harassment rules to restrict speech in educational institutions or places of public accommodation. (That has in fact been the pattern of restrictions on Communist advocacy, antiwar speech, sexually themed speech, pro-civil-rights speech, and racist speech.)

Each success will help validate the pro-restriction forces’ positions in the eyes of voters and legislators who are on the fence. Moreover, each success may reinforce the enthusiasm of the supporters of the restrictions. And government restrictions on such speech are also likely to be accompanied by private restrictions on such speech, for instance by private broadcasters, publishers, employers, and commercial property owners. As a result, even when each restriction standing alone imposes only a modest burden on speech, the aggregate of all the restrictions can end up being quite burdensome.

It is, of course, possible for courts to consider this risk, to allow only the first few restrictions, and then to strike down any new restrictions once the alternative channels no longer seem to be ample. But that’s a hard project for courts to engage in, especially when they are armed only with the vague “ample alternative channels” standard. Judges may find it hard to explain why they are treating two seemingly similar restrictions differently, simply because of the order in which the restrictions were enacted. And because “ample” lacks an objective absolute definition, courts may end up applying a relative criterion — how many channels the restriction leaves open compared to those available before this restriction was enacted, or how many it leaves open compared to those that it shuts down. If that is so, courts might indeed allow a sequence of restrictions that gradually but substantially reduces the alternative channels, even if the courts would have struck down a restriction that tried to impose the same burden all at once.

Conclusion: For all these reasons, the Court has been right to treat restrictions that are content-based as applied — even if they are facially generally applicable to both speech and conduct — with the same skepticism as it has used for restrictions that are content-based on their face. It’s the only approach that is consistent with Hustler, Claiborne Hardware, and the other similar cases. It’s properly hostile to the government’s attempts to restrict speech because of the informative or persuasive power of the speech. And it’s necessary to prevent the government from having the power to broadly suppress certain facts and ideas.

When speech is punished precisely because of what it communicates — for instance, because it may persuade people to violate the law or to boycott someone, because it may offend some listeners, or because it may convey information that helps people commit crimes — the law is operating as a content-based speech restriction. The law is restricting speech precisely because of what is spoken. Therefore, courts should subject such a law to serious First Amendment analysis; they ought not dodge this analysis by simply relabeling the speech as “conduct.”

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Paying Dead Farmers Not to Farm:

Today's Washington Post reports that the U.S. Department of Agriculture has continued to make subsidy payments to farmers who are deceased.

The U.S. Department of Agriculture distributed $1.1 billion over seven years to the estates or companies of deceased farmers and routinely failed to conduct reviews required to ensure that the payments were properly made, according to a government report.

In a selection of 181 cases from 1999 to 2005, the Government Accountability Office found that officials approved payments without any review 40 percent of the time. . . .

In a letter responding to the GAO report, the Agriculture Department said that the payments were not necessarily examples of fraud or abuse and that auditors did not prove any specific cases of cheating. The department's field offices defended the practice of routinely paying dead farmers' estates without fully investigating the claims, citing staff shortages and competing priorities. The agency also said that any overpayments would amount to less than 1 percent of farm subsidies paid between 1999 and 2005.

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Debating the Impact of Mass. v. EPA:

This morning, the Northwestern University Law Review Colloquy posted my contribution to an exchange on the impact of Massachusetts v. EPA on climate change policy and the future of administrative law.

The first essay, Breaking New Ground on Issues Other than Global Warming, is by Professors Kathryn Watts and Amy Wildermuth. They argued that Mass. v. EPA would not necessarily force the EPA to regulate greenhouse gas emissions from automobiles, and so was not necessarily an important environmental case. They nonetheless believe the decision is quite significant. As they explain:

We believe that the long-term significance of the case is likely to be the opinion's impact on two doctrinal areas of the law: (1) the standing of states; and (2) the standard of review applied to denials of petitions for rulemaking. First, although we have some questions about the Court's reasoning, we are encouraged to see the beginning of a framework for evaluating state standing based on the interest of the state in the litigation. Second, with respect to judicial review of agency inaction in the rulemaking context, the Court's decision breaks new ground by not only confirming the reviewability of an agency's denial of a rulemaking petition but also by closely scrutinizing the reasons that the EPA offered for its decision to decline to regulate.
In my response, I agree with Watts & Wildermuth on some points, but not on others. Here is the abstract of my essay (via SSRN):
In their essay Breaking New Ground on Issues Other than Global Warming, Professors Kathryn A. Watts and Amy J. Wildermuth have presented a thoughtful preliminary analysis of the Supreme Court's handiwork in Massachusetts v. EPA. They are correct that the decision potentially paves new ground in administrative law, particularly with regard to state standing. The Court's approach to review of agency decisions to decline rulemaking petitions is also potentially significant, but perhaps less ground-breaking than they suggest. In the context of climate change policy their assessment of the Court's decision is too modest, however, for Massachusetts virtually ensures federal regulation of greenhouse gases from motor vehicles and other emission sources. While the Court did not order the EPA to regulate with respect to climate change, the majority opinion gives the Agency little option but to regulate, and not just for motor vehicles. Unless the relevant provisions of the Clean Air Act are revised by Congress in new climate change legislation, Massachusetts v. EPA will mean greenhouse gas emission limits on a wide variety of sources.
The final version of my essay is now available on the Colloquy site in both HTML and PDF.

Related Posts (on one page):

  1. Debating Climate Law & Policy at ACS:
  2. Debating the Impact of Mass. v. EPA:
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Sunday, July 22, 2007

Assessing My Harry Potter Book 7 Predictions:

Last week, I wrote a post posing some questions about Book 7 of Harry Potter and giving my predictions about the answers. Here's how I did.

Note: if you want to avoid SPOILERS, you should stop reading NOW.

UPDATE: Due to popular demand, I have put the spoilers below a fold. However, I think that the original prominent warning about spoilers (combined with the heading of the post, which is after all about "assessing my Harry Potter Book 7 Predictions") should have been sufficient.

UPDATE #2: Several commenters posit various reasons why some readers could not avoid the spoilers even despite the very prominent warning. None of these problems have ever happened to me, which is why they didn't occur to me when I wrote the initial post. However, some of the posited scenarios are plausible, and I will keep them in mind if spoiler issues come up in the future, and try to use folds to hide spoilers whenever possible. Sorry for any inconvenience caused by the intial post.

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Nonideological Evil in the Harry Potter Series:

The most important shortcoming of the Harry Potter series is its often unconvincing depiction of evil. Creating a plausible ideology for the "bad guys" in a fantasy series is an important challenge that many writers try to sidestep. There are all too many fantasy books that include a "Dark Lord" who seems to be evil for evil's sake, without any justifying ideology that might actually appeal to anyone. This is an important weakness of many works in the genre, and J.K. Rowling unfortunately falls into this trap in the Potter books.

Rowling does a great job of depicting the negative effects of government and bureaucracy: institutions that are supposedly set up for beneficial purposes, but actually cause more harm than good because of their indirect effects. She is much less convincing in her depiction of the more radical evil represented by Lord Voldemort and his followers. The problem here is the absence of ideology. Voldemort seems to be motivated almost solely by his desire for power and immortality. His followers seem driven either by fear of his power (the Malfoys) or personal loyalty (Bellatrix LeStrange).

Real-world evil political movements simply aren't like that, at least not exclusively so. They always have an ideology that justifies their policies, usually a quite elaborate one. Think of the Nazis, the Communists, Al Qaeda, and so on. Each of these groups had a detailed ideology that purported to explain why their policies were right, just, and necessary for reasons that go beyond the narrow self-interest of the movement's leaders. Even if the leaders themselves didn't always believe in the ideology, it played a key role in motivating and indoctrinating the followers.

Rowling takes a small step in the right direction in her emphasis on Voldemort's and the Death Eaters' hostility to Muggle-born ("Mudblood") wizards. The obvious analogy is to real-world racism. However, she never really explains why the Death Eaters hate Muggle-borns so much, which makes the hostility seem unmotivated and pointless. In the real world, racism and anti-Semitism were justified by elaborate theories of either the inferiority or the malignant nature of the despised group. Often there are also real or imagined historical grievances. We see none of this in the Potter series (at least not on the part of Voldemort and his followers; groups such as the goblins and centaurs do have historical grievances against wizards). This gives a misleading image of the true nature of racism, feeding the modern conceit that it is just the result of "hatred" or intolerance. In reality, the hatred and intolerance are usually the consequences of racist ideology, not its causes. The core of anti-Semitism, for example, is not hatred of Jews in and of itself, but the list of reasons why Jews supposedly deserve to be hated.

In Book 7, Rowling belatedly recognizes this problem, and has the Death Eaters justify their hatred of Muggle-borns by claiming that they supposedly "stole" their magic from "pureblood" wizards by taking wands from them. However, this claim seems utterly implausible as a basis for Death Eater ideology because it is too easily falsified by everyday experience in the wizarding world. As was established early in the series, virtually all wizards know that the ability to do magic is innate, and cannot be acquired simply by taking a wizard's wand. Real-world ideologies, however absurd in their ultimate conclusions, have to be sophisticated enough to avoid falsification by the basic facts of everyday life. An effective ideology must have at least some plausibility.

The prevalence of essentially nonideological evil in fantasy literature is unfortunate. It leads to a,cartoonish distortion of the way evil wins adherents. On balance, the many virtues of Rowling's books outweigh this one defect. But it is a defect nonetheless.

UPDATE: Steven Bainbridge has an interesting response to this post. He argues 1) that Voldemort doesn't need an ideology to motivate his followers because they are only a small group, and small groups can be effectively motivated by other means, and 2) tht Voldemort does in fact have an ideology based on the need to protect the genetic basis of wizarding ability from dilution through intermarriage with Muggles. Regarding the first point, I entirely agree that small groups are easier to motivate by nonideological means than large ones. However, small groups that seek to overthrow and entire social order usually do develop an ideology nonetheless. The Communists, Nazis, radical Islamists, and others all started as very small groups, yet all had an ideological basis from the start. Moreover, Voldemort is clearly seeking to gain the support of the wizard population as a whole, not just a small group. That is why he puts out propaganda (as Bainbridge himself points out). Persuading large groups does require an ideology of some sort, as Bainbridge concedes.

On Bainbridge's second point, I think he has indeed come up with a plausible ideology for Voldemort (relying on this essay by another Harry Potter commentator). The problem is that this ideology is nowhere mentioned in the books. If this were the real ideological rationale used by Voldemort, one would think that J.K. Rowling would have mentioned it somewhere in the several thousand pages she wrote for the series. Certainly, she has lavished attention on many far less significant details of the wizarding world.

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Strengths and Weaknesses of the Harry Potter Series:

NOTE: There are a few spoilers here, though no absolutely critical ones.

With the Harry Potter series now complete, I want to summarize what I see as its main strengths and weaknesses. The former are, to my mind, well-known. Perhaps the most important is the impressive depth of character development. In addition to the central Trio (Harry, Ron, Hermione), there are numerous secondary characters who develop much greater depths than I would have expected on first encountering them early in the series. Think of cases like Snape, Neville, Luna, Draco, and even Dumbledore (who in Book 7 turns out to be a lot less positive a figure than we have come to expect). A second great strength is the wealth of detail that gives depth and color to J.K. Rowling's imaginary world. Finally, although I don't believe that fiction books should be judged primarily by their ideology "message," I can't help but embrace J.K. Rowling's themes of deep suspicion of government and emphasis on the primacy of universal principles over cultural relativism and chauvinism. Book 7 pushes both of these ideas even farther than previous volumes.

The shortcomings of the series are greatly outweighed by the strengths. Nevertheless, I have two reservations. One is well-expressed by Megan McArdle: Rowling fails to give us a consistent portrayal of the costs and benefits of magic in her fictional world. As a result, the economy of the world she designs has numerous internal contradictions that undermine its believability. As Megan puts it, Rowling fails to explain the "opportunity costs" of magic, as a result of which its not clear why wizards can't just use magic to get almost anything they want:

The low opportunity cost attached to magic spills over into the thoroughly unbelievable wizard economy. Why are the Weasleys poor? Why would any wizard be? Anything they need, except scarce magical objects, can be obtained by ordering a house elf to do it, or casting a spell, or, in a pinch, making objects like dinner, or a house, assemble themselves. Yet the Weasleys are poor not just by wizard standards, but by ours: they lack things like new clothes and textbooks that should be easily obtainable with a few magic words. Why?

Rowling hints at some answers to these questions, and to that extent Megan's critique goes a bit too far. Nonetheless, she is surely on to something.

My second reservation about the Potter series relates to the portrayal of evil. I'm going to save this one for a follow-up post of its own.

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"Why Do They Hate Us?": In today's Washington Post, my former classmate Mohsin Hamid has an interesting essay on Pakistani attitudes about the United States. Mohsin will be doing an online Q&A about the essay tomorrow.
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Sunday Song Lyric: We spent the weekend visiting my Dad and his wife in Vermont. Over the years, they have become huge Mary Chapin Carpenter fans -- going to concerts and everything. (My Dad at a concert -- now there's an image.) I have never been much of a Carpenter fan myself, but it's hard not to respect her tremendous musical accomplishments, including several Grammies, country music awards, and platinum selling albums, all while retaining her somewhat unique musical style, a blend of country, folk, and other influences.


Not being a Carpenter aficionado, I was not sure what song lyric to select, but I kinda like the lyrics from "The Long Way Home" off of Time*Sex*Love. Here is the opening verse:

You could be this man, he's got it all worked out
To the nth degree, no fears, no doubts
He'll retire at thirty to his big-ass house next to the putting green
Now he's got a picture in his head of the perfect wife,
Their perfect children, their perfect life
Nothing wrong with that, coming home each night to his cul-de-sac of dreams
Funny now how it all went by so fast
One day he's looking over his shoulder at the past
When everybody had to go, had to be, had to get somewhere
How did he forget about what got him there
The full lyrics are available here.
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May Congress Order the Justice Department To Prosecute People Who the Justice Department Firmly Believes are Innocent?

I'm not a separation-of-powers maven, but my sense is that the Reagan Administration — and, more recently, the current Administration — have been right to say no. The issue has of course come up in the executive privilege context:

Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege....

Under federal law, a statutory contempt citation by the House or Senate must be submitted to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action."

But administration officials argued yesterday that Congress has no power to force a U.S. attorney to pursue contempt charges in cases, such as the prosecutor firings, in which the president has declared that testimony or documents are protected from release by executive privilege....

The Justice Department is apparently relying on the reasoning given in this Reagan Justice Department Office of Legal Counsel memo; and my sense is that the memo is generally quite correct.

1. Recall that all this is happening because of the existence of the executive privilege — the executive branch's qualified (which is to say not absolute) right to refuse to allow testimony about confidential communications within the branch. The scope of the privilege is complex, as are the circumstances in which it can be overcome. But this is the privilege that the administration is asserting (as best I can tell at least plausibly) to block testimony and production of documents by chief of staff Joshua Bolten and former White House counsel Harriet Miers. The official view of the Justice Department (whether one thinks it right or wrong) is that the matter is covered by the executive privilege, and that Congress therefore lacks constitutional power to order the testimony and production of documents by the witnesses.

2. Now at this point, one way Congress can enforce its subpoenas is by prosecuting the witnesses in federal court for the crime of contempt of Congress (which, despite its name, in this case simply means refusal to testify when ordered to do so). But since federal prosecutions are generally initiated by the executive branch, Congress would have to get a federal prosecutor to get an indictment from a grand jury and then proceed with the prosecution. And there is a federal statute under which Congress claims the power to order prosecutors to do so.

The trouble is that this means (a) stripping the executive branch of its traditional "prosecutorial discretion," which is to say the discretion to decide whether to charge any particular potential defendant, and (b) ordering the executive branch to prosecute someone who, according to the executive branch's official view, is innocent. The executive branch's position is that Bolten and Miers have a good defense to the subpoena, much as a private lawyer ordered to testify about confidential conversations with his client would have a good defense — privilege. They are therefore not guilty of the crime of contempt of Congress.

It seems to me that action (a) is indeed a violation of the separation of powers, because it is placing in Congress's hands — rather than in the executive's — the quintessentially executive decision whether a federal prosecutor would prosecute someone in federal court. Even Morrison v. Olson, which upheld a special statute authorizing a special prosecutor who would be outside the President's authority, does not, it seems to me, go that far; among other things, it does not allow the legislature to mandate a prosecution. And action (b) is likewise solidly against our constitutional traditions, even accepting the propriety of independent prosecutors: When an independent prosecutor is prosecuting someone, I take it he believes (as prosecutors generally should believe) that there is at least probable cause to think that the target is guilty. Here the statute involves Congress ordering the Justice Department to prosecute someone who is, according to the officially decided view of that very same Justice Department, clearly innocent.

3. This having been said, firmly insisting on denying Congress any power to initiate prosecutions of people who resist its commands — commands that Congress wants to argue are lawful — would indeed make it much harder for Congress to make its commands stick. Impeachment, whether of the President or of subordinates, would still be an option, but there are many problems with it. As it happens, though, the law has long recognized two tools that Congress has here, one of which is a deep but narrow exception to the normal principles of separation of powers. Marty Lederman (Balkinization) (who I think likely disagrees with me on parts of what I say above) points to them. "Congress could file a civil action in federal court seeking declaratory relief, or an injunction requiring enforcement of its subpoena." And

Congress can itself prosecute the contumacious official(s) to coerce them to comply — a power that the Supreme Court has affirmed. See Jurney v. MacCracken, 294 U.S. 125 (1935); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821); see also Groppi v. Leslie, 404 U.S. 496, 499 (1972). As Justice Scalia explained in Young v. U.S. ex rel. Vuitton et Fils, S.A., 481 U.S. at 820, this legislative prosecution authority is a constitutional anomaly of sorts — a "limited power of self-defense" for Congress, permissible because "any other course 'leads to the total annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it'" (quoting Anderson).

How would such self-help work? Well, believe it or not, the Sergeant-at-Arms of the Senate or House would personally arrest the officials and detain them in the Capitol jail or guardhouse (assuming such a facility still exists). (One of my students last semester noticed this gem on the website of the current Senate Sergeant-at-Arms, Terrance Gainer: "The Sergeant at Arms is authorized to arrest and detain any person violating Senate rules, including the President of the United States." We wondered in class: What could possibly have motivated Mr. Gainer or his staff to post that provocation?) The person would then be tried by the legislative house and, if found guilty (of civil contempt), could be detained until compliance with the subpoena or until the session of Congress ends, Anderson, 19 U.S. at 231, whichever comes first.

Congress has not invoked this authority since 1935 and, as far as I know, has never used it against a current or former government official. (The closest case was probably the contempt at issue in McGrain v. Daugherty, 273 U.S. 135 (1927), which was imposed against Mally Daugherty, a bank president and the brother of resigned and disgraced Attorney General Harry Daugherty, who Congress was investigating in connection with the Teapot Dome scandal.)

This latter approach is something that was a shocker to me when I first learned about it; after all, here Congress would not only order a prosecution, but could actually try and punish the person, though subject to certain limits. This is a deeper departure from the separation of powers than simply ordering the Justice Department to prosecute — in front of a normal judge and jury — would be.

Nonetheless, it is a departure that is sanctioned by longstanding legal doctrines, and (relatedly) by our constitutional history. It may be less pernicious in certain ways, because at least it is a departure that does not force a prosecuting office to prosecute someone who they think is innocent. But more importantly, it seems like the legally authorized approach — the use of a traditional and narrow departure from standard constitutional norms, and not a new departure.

4. My tentative view, then, is that when the Justice Department takes the view that a witness is properly claiming executive privilege, it should not prosecute the witness for contempt of Congress, and any attempts by Congress to force it into such a prosecution are unconstitutional. Congress retains tools to vindicate its interests. It's just that the tool of forcing the Justice Department to prosecute is not a permissible one.

Related Posts (on one page):

  1. May Congress Order the Justice Department To Prosecute People Who the Justice Department Firmly Believes are Innocent?
  2. Executive Privilege and Contempt Prosecutions:
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Lord Voldemort and the Evil Overlord List:

NOTE: This post has possible indirect spoilers for the Harry Potter series, including one that relates to Book 7.

Many fictional Dark Lords have met an untimely demise because they failed to follow the common sense rules of the Evil Overlord List. Now that the Harry Potter series has reached its end, we can determine how well Lord Voldemort followed the advice of the List. Overall, not too badly. However, he might have done better if he paid more attention to the following suggestions:

4. Shooting is not too good for my enemies.

6. I will not gloat over my enemies' predicament before killing them.

11. will be secure in my superiority. Therefore, I will feel no need to prove it by leaving clues in the form of riddles or leaving my weaker enemies alive to show they pose no threat.

78. I will not tell my Legions of Terror "And he must be taken alive!" The command will be "And try to take him alive if it is reasonably practical."

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